                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia,                                                           FILED
Plaintiff Below, Respondent
                                                                              January 9, 2017
                                                                               RORY L. PERRY II, CLERK
vs) No. 15-0985 (Preston County 13-F-42)                                     SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

Jackie S.,

Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner Jackie S., by counsel Justin Gregory, appeals the Circuit Court of Preston
County’s July 23, 2015, order sentencing him to prison for ten to twenty years for one count of
sexual abuse by a parent, in violation of West Virginia Code § 61-8D-5.1 The State of West
Virginia, by counsel Zachary Aaron Viglianco, filed a response in support of the circuit court’s
order. On appeal, petitioner argues that he did not knowingly, intelligently, and voluntarily enter
into a plea agreement.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        In October of 2013, a Preston County grand jury indicted petitioner on twelve counts of
incest, in violation of West Virginia Code § 61-8-12, and eight counts of sexual abuse by a
parent, in violation of West Virginia Code § 61-8D-5. These charges stemmed from sexual
conduct against his adopted daughter.

        In April of 2015, petitioner entered an Alford plea to one count of sexual abuse by a
parent.2 As part of the plea agreement, the State dismissed the remaining nineteen counts. During

       1
        Because this case involves a minor victim of sex crime who is related to petitioner, we
use only petitioner’s first name and last initial consistent with our practice in cases involving
minors and sensitive facts. See In re K.H., 235 W.Va. 254, 773 S.E.2d 20 (2015); Melinda H. v.
William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013); State v. Brandon B., 218 W.Va. 324, 624
S.E.2d 761 (2005); State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990).
       2
        An Alford plea, from the decision in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct.
160, 27 L.Ed.2d 162 (1970), allows a defendant to enter a guilty plea without admitting guilt. See

                                                                                  (continued . . . )

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the plea hearing, the circuit court conducted a thorough plea colloquy. During the proceedings,
petitioner indicated that while he was having “a little bit of trouble with [his blood] sugar today”
and was slow to “comprehend” the proceedings, he “ate some cookies” and was then able to
understand everything. Throughout the rest of the proceedings, petitioner affirmatively
answered, multiple times, that he understood the plea hearing proceedings and that he was
voluntarily entering into the plea agreement. Thereafter, the circuit court sentenced petitioner to
a term of incarceration of ten to twenty years, followed by twenty years of supervised release.
This appeal followed.

        This Court has previously explained that “[a]n appeal ordinarily does not lie in a criminal
case from a judgment of conviction rendered upon a plea of guilty.” State v. Sims, 162 W.Va.
212, 215, 248 S.E.2d 834, 837 (1978). However, we also held in Syllabus Point 1 of Sims that
“[a] direct appeal from a criminal conviction based on a guilty plea will lie where an issue is
raised as to the voluntariness of the guilty plea or the legality of the sentence.” Id. at 212, 248
S.E.2d at 835, Syl. Pt. 1. Further, “[w]here the issue on an appeal from the circuit court is clearly
a question of law or involving an interpretation of a statute, we apply a de novo standard of
review.” Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

        On appeal, petitioner argues that he did not knowingly, intelligently, and voluntarily enter
into his plea agreement. Specifically, petitioner argues that he displayed clear signs that he did
not fully understand the proceedings and was suffering from a medical issue that prevented him
from entering a plea agreement. We disagree. This Court set forth the requirements to determine
the voluntariness of a guilty plea in Call v. McKenzie 159 W.Va. 191, 220 S.E.2d 665 (1975). In
Syllabus Points 3, 4, and 5 of Call, this Court held as follows.

               When a criminal defendant proposes to enter a plea of guilty, the trial
       judge should interrogate such defendant on the record with regard to his
       intelligent understanding of the following rights, some of which he will waive by
       pleading guilty: 1) the right to retain counsel of his choice, and if indigent, the
       right to court appointed counsel; 2) the right to consult with counsel and have
       counsel prepare the defense; 3) the right to a public trial by an impartial jury of
       twelve persons; 4) the right to have the State prove its case beyond a reasonable
       doubt and the right of the defendant to stand mute during the proceedings; 5) the
       right to confront and cross-examine his accusers; 6) the right to present witnesses
       in his own defense and to testify himself in his own defense; 7) the right to appeal
       the conviction for any errors of law; 8) the right to move to suppress illegally
       obtained evidence and illegally obtained confessions; and, 9) the right to
       challenge in the trial court and on appeal all pre-trial proceedings.


Syl. Pt. 1, Kennedy v. Frazier, 178 W.Va. 10, 357 S.E.2d 43 (1987) (stating that “[a]n accused
may voluntarily, knowingly and understandingly consent to the imposition of a prison sentence
even though he is unwilling to admit participation in the crime, if he intelligently concludes that
his interests require a guilty plea and the record supports the conclusion that a jury could convict
him.”).



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               Where there is a plea bargain by which the defendant pleads guilty in
       consideration for some benefit conferred by the State, the trial court should spread
       the terms of the bargain upon the record and interrogate the defendant concerning
       whether he understands the rights he is waiving by pleading guilty and whether
       there is any pressure upon him to plead guilty other than the consideration
       admitted on the record.

               A trial court should spread upon the record the defendant’s education,
       whether he consulted with friends or relatives about his plea, any history of
       mental illness or drug use, the extent he consulted with counsel, and all other
       relevant matters which will demonstrate to an appellate court or a trial court
       proceeding in Habeas corpus that the defendant’s plea was knowingly and
       intelligently made with due regard to the intelligent waiver of known rights.

Id. at 191-92, 220 S.E.2 at 667-68.

         Our review of the hearing transcript reflects that the circuit court conducted a thorough
plea colloquy in this case, satisfying the requirements of Call and ensuring that petitioner’s
guilty plea was knowingly, intelligently, and voluntarily made and that petitioner was fully
advised of all the rights he was giving up by pleading guilty. Further, petitioner’s argument that
he suffered from a medical condition that prohibited him from understanding the plea
proceedings or entering a knowing, intelligent, and voluntary plea is not supported by the record.
During the plea hearing, the circuit court discussed petitioner’s medical condition as it related to
his ability to understand the proceedings to which petitioner responded that he was having “a
little bit of trouble with [his blood] sugar today” and was slow to “comprehend” the proceedings,
but that he “ate some cookies” and was able to understand everything. The record also reflects
that petitioner testified at the plea hearing that his plea was voluntary; that no one had used any
force, pressure, or threats to unduly influence him to plead guilty; and that he had plenty of time
to meet and discuss his case with his attorney. For these reasons, the Court finds no error.

       For the foregoing reasons, the circuit court’s July 23, 2015, sentencing order is hereby
affirmed.

                                                                                         Affirmed.

ISSUED: January 9, 2017

CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




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