                                 STATE OF WEST VIRGINIA
                               SUPREME COURT OF APPEALS

    State of West Virginia, Plaintiff Below,
    Respondent                                                                            FILED
                                                                                      October 20, 2015 
    vs) No. 14-0807 (Marion County 14-F-36)                                          RORY L. PERRY II, CLERK
                                                                                   SUPREME COURT OF APPEALS
                                                                                       OF WEST VIRGINIA 
    Lewis Kelly Dailey, Defendant Below,
    Petitioner


                                  MEMORANDUM DECISION
            Petitioner Lewis Kelly Dailey, by counsel  Heidi M. Georgi Sturm, appeals the Circuit
    Court of Marion County’s June 18, 2014, order sentencing him to three consecutive sentences of
    one to five years of incarceration following his guilty pleas to three counts of third-degree sexual
    assault. The State, by counsel Laura Young, filed a response. On appeal, petitioner alleges that
    the plea agreement was unclear as to whether his individual sentences were to be served
    concurrently or consecutively; that he was not made aware that entering into a plea agreement
    would limit the issues he was able to appeal; that the circuit court erred in allowing him to be
    represented by two separate attorneys in two counties in two criminal matters; and that the circuit
    court should have imposed the sentences as set forth in the 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 September of 2013, petitioner was arrested after having sexual intercourse with a
    fourteen-year-old girl. Thereafter, petitioner was indicted on one count of sex trafficking of a
    minor, three counts of third-degree sexual assault, and three counts of second-degree sexual
    assault.

           In June of 2014, petitioner and the State reached a plea agreement whereby petitioner
    would plead guilty to three counts of third-degree sexual assault, resulting in a maximum
    sentence of not less than three nor more than fifteen years of incarceration. Further, the State
    agreed to dismiss several felony counts carrying the potential of between thirty-three to ninety
    years of incarceration. The State further recommended that any sentences imposed would run
    concurrent with a separate criminal sentence imposed in Harrison County, West Virginia.
    However, the written plea agreement specifically stated that, pursuant to Rule 11(e)(1)(B) of the
    West Virginia Rules of Criminal Procedure, the circuit court was not bound to accept the
    recommendation.

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        The circuit court then held a plea and sentencing hearing. During the hearing, the circuit
court asked petitioner if anyone had guaranteed he would receive concurrent sentences, and
petitioner replied in the negative. Ultimately, the circuit court imposed sentences that were to run
consecutively to one another and consecutively to the separate Harrison County sentence. The
circuit court made this decision based upon the specific facts of the case, including the fact that
the child was missing for three days while petitioner and a co-defendant committed multiple sex
acts with the victim and based upon victim impact statements. It is from the sentencing order that
petitioner appeals.

        We have previously held that “‘[t]he Supreme Court of Appeals reviews sentencing
orders . . . under a deferential abuse of discretion standard, unless the order violates statutory or
constitutional commands.’ Syl. Pt. 1, in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221
(1997).” Syl. Pt. 1, State v. James, 227 W.Va. 407, 710 S.E.2d 98 (2011). Further, we have
recognized that “[a] guilty plea based on competent advice of counsel represents a serious
admission of factual guilt, and where an adequate record is made to show it was voluntarily and
intelligently entered, it will not be set aside.” Syl. Pt. 3, State ex rel. Burton v. Whyte, 163 W.Va.
276, 256 S .E.2d 424 (1979). In syllabus point three of Call v. McKenzie, 159 W.Va. 191, 220
S.E.2d 665 (1975), we outlined the procedures to be followed by trial courts for the purpose of
insuring that guilty pleas are entered voluntarily and intelligently, 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.

With these standards in mind, we turn to petitioner’s assignments of error.

        To begin, the Court declines to address petitioner’s arguments that the circuit court erred
in allowing him to be represented by two separate attorneys in separate criminal proceedings in
two counties or that the circuit court erred in failing to accept the State’s recommended sentence.
First, petitioner clearly recognizes that the plea agreement that he accepted was non-binding on
the circuit court, pursuant to Rule 11(e)(1)(B) of the West Virginia Rules of Criminal Procedure,
and he plainly acknowledges that the circuit court had discretion in imposing his sentence below.




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Further, petitioner’s sentencing order in the separate criminal proceedings from Harrison County
is not at issue in this appeal and, therefore, not addressed herein.1

        Most importantly, however, in his brief on appeal, petitioner cites to no authority in
support of either of these assignments of error and instead makes broad generalizations while
arguing that policy considerations support his assertions. This is in direct contradiction to Rule
10(c)(7) of the West Virginia Rules of Appellate Procedure, which requires that “[t]he brief must
contain an argument exhibiting clearly the points of fact and law presented, the standard of
review applicable, and citing the authorities relied on . . . .” Moreover, that Rule requires that
“[t]he argument must contain appropriate and specific citations to the record on appeal, including
citations that pinpoint when and how the issues in the assignments of error were presented to the
lower tribunal.” Absent adequate support, this Court is free to disregard such errors. For these
reasons, the Court finds petitioner is entitled to no relief in regard to these assignments of error.

        As to petitioner’s argument that the plea agreement did not clearly state whether the State
would recommend that the sentences imposed in this case be served consecutively or
concurrently, the Court finds no merit to this argument. Specifically, this argument is contrary to
petitioner’s own statement of the facts on appeal, wherein he clearly states that “[t]he terms of
the plea agreement from the State included the sentences for the three [third-degree sexual
assault charges] would run consecutively to one another.” Simply put, petitioner cites to no
evidence that the terms of the plea agreement were unclear or that the resulting confusion caused
him to enter into the plea without knowledge or involuntarily. To the contrary, the record is
replete with evidence that petitioner clearly understood the terms of the plea agreement, that he
entered into it knowingly and voluntarily, and that the State’s recommendations were not binding
on the circuit court. Petitioner even admits in his brief on appeal that he “entered into this plea
voluntarily, knowing that the [circuit court] would make the ultimate decision as to what the
punishment . . . would be.” As such, the Court finds no error in this regard.

        Finally, in regard to petitioner’s argument that the circuit court erred in limiting the issues
he could raise on appeal, the Court again finds no merit to this argument. Specifically, petitioner
acknowledges that by entering a guilty plea, he limited his grounds for appeal to the following
three issues: whether the plea is voluntary; whether the sentence is correct; and whether
jurisdiction is proper. Further, petitioner argues that he was provided with a copy of a “Notice of
Post-Conviction Rights” and that it “implie[d he] is entitled to appeal on every ground available,
even if not applicable because he entered a plea.” However, it is unclear what issues, if any,
petitioner has been barred from appealing, as he has not raised any specific issue that he should
be entitled to appeal but is prevented from raising herein. In fact, it is unclear what, exactly,
petitioner is alleging as an error in this regard. Petitioner argues that, often, a criminal defendant
may move for reconsideration of his sentence outside the bounds of the agreed appealable issues,
only to have the State use such action as a basis to revoke the plea agreement. However, no such

                                                                   
       1
        Petitioner did appeal the sentencing order from the criminal charges in Harrison County
in a separate appeal to this Court. However, the Court dismissed that appeal from the docket by
order entered on August 31, 2015. As such, petitioner is precluded from raising issues related to
the Harrison County prosecution in this appeal, which concerns only the Circuit Court of Marion
County’s sentencing order.
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action has occurred here, nor is petitioner arguing that he should be entitled to appeal a specific
issue. As such, we find this issue is not ripe for appeal, and note that “‘[m]oot questions or
abstract propositions, the decision of which would avail nothing in the determination of
controverted rights of persons or of property, are not properly cognizable by a court.’ Syl. Pt. 1,
State ex rel. Lilly v. Carter, 63 W.Va. 684, 60 S.E. 873 (1908).” Syl. Pt. 1, State v. Merritt, 221
W.Va. 141, 650 S.E.2d 240 (2007). Simply put, the circuit court was under no duty to inform
petitioner that he could not appeal his conviction on issues that are inapplicable and had no
bearing on his sentence, and petitioner has not alleged he has been harmed in any way in regard
to this assignment of error.

        For the foregoing reasons, the circuit court’s June 18, 2014, sentencing order is hereby
affirmed.


                                                                                        Affirmed.

ISSUED: October 20, 2015

CONCURRED IN BY:

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




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