                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,                                                             FILED
Plaintiff Below, Respondent                                                         May 17, 2013
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs) No. 12-0509 (Mineral County 07-F-71)                                         OF WEST VIRGINIA



Tracy Wolfinbarger,
Defendant Below, Petitioner


                               MEMORANDUM DECISION
        Petitioner Tracy Wolfinbarger, pro se, appeals the order of the Circuit Court of Mineral
County, entered April 10, 2012, denying his motion for resentencing for appeal purposes. The
State, by counsel the Office of the Attorney General, filed a summary response.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        In September of 2007, petitioner was indicted on three counts of first degree sexual
abuse, two counts of first degree sexual assault, and five counts of sexual abuse by a custodian.
The offenses charged involved two victims, D.W. and A.I.,1 both females under the age of
eleven. Subsequently, the petitioner was indicted on six counts of failure to register as a sex
offender, and four counts of soliciting a minor via computer.

        Petitioner entered a plea of guilty to one count of first degree sexual abuse and two
counts of sexual abuse by a custodian. The remaining counts were dismissed. In June of 2008,
petitioner was sentenced to consecutive terms of ten to twenty years imprisonment on each of the
two counts of sexual abuse by a custodian, and five to twenty-five years imprisonment on the
count of first degree sexual abuse.


        On March 21, 2012, the petitioner filed a motion for resentencing so that he could perfect
a direct appeal. The circuit court denied the motion for resentencing, and held:


       1
         In view of the sensitive nature of this case, this Court will refer to certain individuals by
their initials or first name and last initial. Clifford K. v. Paul, 217 W.Va. 625, 630 n.1, 619
S.E.2d 138, 143 n.1 (2005).
                                                  1

               [Petitioner’s] points of law are sound; however, the majority of [his]
       points of law focus on appeals of trials, rather than an appeal of guilty pleas;
       appeals of trials and appeals of guilty pleas are two different procedural entities.
       [Petitioner] cited State v. Sims, [162 W.Va. 212, 248 S.E.2d 834 (1978)] for the
       point of law that a defendant can appeal a guilty plea upon the issues of
       voluntariness of the plea or the legality of the sentence. In fact, this was Sims’
       holding; however, Sims also stated, “An appeal ordinarily does not lie in a
       criminal case from a judgment or conviction rendered upon a plea of guilty.” Id.
       at 837. The Sims court then went on to carve out two exceptions to this rule: (1)
       voluntariness of the guilty plea and (2) legality of the sentence, which includes
       jurisdiction. See Id. at 837. Thus, [petitioner] could appeal his guilty plea only
       upon the grounds of voluntariness of his guilty plea or the legality of his sentence.

               [Petitioner], though, makes no such arguments in his Motion that his plea
       was either involuntary or illegal. In fact, [petitioner], at his June 16, 2008,
       sentencing, freely admitted that his guilty plea was voluntary and that the crimes
       he committed took place within Mineral County. Further, the Court informed the
       [petitioner] of his sentence, which was legal, and the [petitioner] freely admitted
       again that he was aware of the penalties that he was facing. In other words, the
       [petitioner’s] appeal grounds are without merit because he stated under oath in
       open court that his plea was voluntary and that he committed these crimes in
       Mineral County. Further, his sentences were legal, and the exchange above shows
       that [petitioner] had full knowledge of his sentences. As such, [petitioner’s]
       appeal grounds are/were without merit. (Footnotes omitted).

       On appeal, petitioner maintains that he has a constitutional right to appeal his conviction
following his guilty plea. He also asserts the circuit court erred by focusing on the substance of
his appellate arguments rather than the process of obtaining his right to appeal.

        The State responds that this Court’s precedent is fully consistent with the circuit court’s
advice to petitioner at the time he entered his plea. Since the grounds that petitioner wishes to
assert on appeal do not fall within the narrow range of grounds available to him, resentencing for
purposes of restarting the appeal clock would be a meaningless exercise and a waste of judicial
resources.

       We note the following standard of review regarding a circuit court’s findings that entail
application of law:

       “Generally, findings of fact are reviewed [by this Court] for clear error and
       conclusions of law are reviewed de novo. However, ostensible findings of fact,
       which entail the application of law or constitute legal judgments which transcend
       ordinary factual determinations, must be reviewed de novo.” Syl. Pt. 1, in part,
       State ex rel. Cooper v. Caperton, 196 W.Va. 208, 470 S.E.2d 162 (1996).

Syl. Pt. 1, State v. Rush, 219 W.Va. 717, 639 S.E.2d 809 (2006). After careful consideration, we
find that the circuit court did not commit error by refusing the motion for resentencing for the
purpose of appeal.
                                                2

        It is well-established law in our State that a criminal defendant has the right to petition for
an appeal of his conviction. Furthermore, the right to appeal cannot be destroyed by counsel’s
failure to perfect an appeal. Syl. Pt. 8, Rhodes v. Leverette, 160 W.Va. 781, 239 S.E.2d 136
(1977). Nevertheless, “[a]n appeal ordinarily does not lie in a criminal case from a judgment or
conviction rendered upon a plea of guilty.” State v. Sims, 162 W.Va. 212, 215, 248 S.E.2d 834,
837 (1978).

        The record reflects that the petitioner was specifically advised during his plea hearing
that entry of a guilty plea left him with limited grounds for appeal. In syllabus point one of Sims,
we held 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.

        In his appeal to this Court, petitioner does not specifically state what ground(s) he would
raise if he were provided an opportunity to perfect a direct appeal. However, we note that he
does not claim that his guilty plea was involuntary. To the contrary, the record supports the
circuit court’s finding that petitioner’s plea was voluntary.2 Furthermore, petitioner does not
challenge the jurisdiction of the court or the legality of the sentence. Therefore, petitioner does
not raise any ground available to him on appeal. Accordingly, we find no compelling reason to
reverse the decision of the circuit court.

       For the foregoing reasons, we affirm.


       2
        It is clear from the transcript of the plea hearing that the circuit court conducted a
thorough inquiry to establish that petitioner entered into the guilty plea knowingly and
voluntarily:

       THE COURT:             Has anybody used any type of threat, pressure, influence or
       intimidation or anything else on you to get you to plead guilty?

       MR. WOLFINBARGER:               No, sir.

       THE COURT:            You are telling me you are pleading guilty freely and
       voluntarily and with knowledge of the consequences?

       MR. WOLFINBARGER:               Yes, sir.

       THE COURT:             And you understand the consequences to be five to twenty-
       five and two tens to twenty, all three consecutive?

       MR. WOLFINBARGER:               Yes, sir.

       THE COURT:          And do you understand that this court can only try cases in
       Mineral County and you know that this occurred in Mineral County?

       MR. WOLFINBARGER:               Yes, sir, I do.
                                                   3

                                       Affirmed.

ISSUED: May 17, 2013

CONCURRED IN BY:

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




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