                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                      FILED
                                                                            September 2, 2016
vs) No. 15-0744 (Greenbrier County 13-F-68 and 13-F-150)                        RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
Harvey Lee Davis,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner Harvey Lee Davis, by counsel J. Brent Easton, appeals the circuit court’s
February 9, 2015, order denying his motion to withdraw his guilty pleas, and he asserts a claim
of ineffective assistance of counsel. Respondent the State of West Virginia, by counsel Shannon
Frederick Kiser, filed a response in support of the circuit court’s order.

        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.

        Petitioner was charged with the felony offense of arson in the first degree (13-F-68) and
the felony offense of murder in the first degree (13-F-150). The parties advised the circuit court
that they had reached a plea agreement, and the State provided a copy of the agreement to the
circuit court. Pursuant to that agreement, petitioner agreed to plead guilty to first degree arson
and second degree murder pursuant to Kennedy v. Frazier, 178 W.Va. 10, 357 S.E.2d 43 (1987).1
In exchange, the State would move to dismiss the first degree murder charge. That agreement
was signed by counsel for the State, petitioner, and counsel for petitioner. During the hearing, the
circuit court asked petitioner and his counsel whether they had agreed to the terms of the written
plea agreement and whether the signatures on the agreement were, in fact, their signatures; both
responded affirmatively to each question. Upon further questioning, petitioner informed the
circuit court that he could read and write, had not abused alcohol or drugs, and was not then
under the influence of alcohol or drugs. He also informed the court that he had discussed the plea
agreement with his family and friends and understood the nature and extent of the same.
Petitioner’s counsel below confirmed with the circuit court that he had met with petitioner on
several occasions and that they had discussed the nature of the charges, the possible defenses to

       1
          During the hearing, one of petitioner’s attorneys below indicated that the basis for
petitioner’s Kennedy plea was that petitioner could not remember the details of the underlying
crime due to his intoxication at the time the crime occurred.
                                                 1

those charges, petitioner’s constitutional rights, and whether the plea agreement provided a
substantial benefit to petitioner. Petitioner confirmed that he was satisfied with the legal services
provided by his attorney, that his attorney had acted in his best interests, and that his attorney had
done everything petitioner asked him to do. The circuit court asked petitioner a litany of
questions regarding his understanding of the constitutional rights he was waiving by entering his
pleas under the agreement. At the conclusion of that questioning, the circuit court found that
petitioner “was fully aware of the nature and meaning of the charges against him and of the
terms of the plea agreement, and that he understood the consequences of pleading guilty pursuant
to the terms of the plea agreement.” The circuit court accepted the pleas during the October 29,
2013, hearing and ordered the probation department to prepare a presentence investigation
report. It also granted petitioner’s motion for a diagnostic evaluation and dismissed the count of
first degree murder as set forth in the indictment.2

        On January 2, 2014, the circuit court received a letter from petitioner requesting to
withdraw his guilty pleas, stating that he did not want to incriminate himself, he did not
understand the felony information containing the second degree murder charge, and he alleged
that the prosecutor in his criminal case was unfair and prejudiced. The circuit court then
appointed new counsel for petitioner. On June 23, 2014, petitioner requested an evidentiary
hearing to determine whether he was competent to enter into the plea agreement. In response, the
circuit court directed petitioner’s new counsel to obtain an audio recording of the plea hearing
and directed the parties to furnish the court with a written stipulation regarding that plea hearing
within thirty days.3 On February 9, 2015, the circuit court held a hearing on petitioner’s motion
to withdraw his pleas. The circuit court denied that motion and set a date for sentencing.4 On
June 26, 2015, petitioner filed a motion to extend the time period to file a notice of appeal, and
the circuit court granted that motion by order entered on or about June 30, 2015. This appeal
followed.

               Notwithstanding that a defendant is to be given a more liberal
       consideration in seeking leave to withdraw a plea before sentencing, it remains
       clear that a defendant has no absolute right to withdraw a guilty plea before
       sentencing. Moreover, a trial court’s decision on a motion under Rule 32(d) of the
       West Virginia Rules of Criminal Procedure will be disturbed only if the court has
       abused its discretion.

Syl. Pt. 2, Duncil v. Kaufman, 183 W.Va. 175, 394 S.E.2d 870 (1990). A circuit court abuses its
discretion “if it bases its ruling on an erroneous assessment of the evidence or an erroneous view
of the law.” Cox v. State, 194 W.Va. 210, 218 n.3, 460 S.E.2d 25, 33 n.3 (1995).

       2
           An amended judgment order reflecting the same was entered on December 30, 2013.
       3
         The parties did not include a copy of any such stipulation as a part of the record before
this Court.
       4
         By order entered on or about May 5, 2015, the circuit court sentenced petitioner to a
term of imprisonment of twenty years for arson and a term of imprisonment of forty years for
second degree murder, said sentences to run consecutively with credit for time served.
                                                  2

        In addition, our standard for evaluating counsel’s effectiveness is well settled. In syllabus
point five of State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), this Court adopted the
following two-pronged test established by the United States Supreme Court:

              In the West Virginia courts, claims of ineffective assistance of counsel are
       to be governed by the two-pronged test established in Strickland v. Washington,
       466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel's performance
       was deficient under an objective standard of reasonableness; and (2) there is a
       reasonable probability that, but for counsel's unprofessional errors, the result of
       the proceedings would have been different.

This Court provided further guidance in syllabus point six of Miller:

               In reviewing counsel’s performance, courts must apply an objective
       standard and determine whether, in light of all the circumstances, the identified
       acts or omissions were outside the broad range of professionally competent
       assistance while at the same time refraining from engaging in hindsight or second-
       guessing of trial counsel's strategic decisions. Thus, a reviewing court asks
       whether a reasonable lawyer would have acted, under the circumstances, as
       defense counsel acted in the case at issue.

        On appeal, petitioner asserts two assignments of error. First, he argues that the circuit
court abused its discretion in denying petitioner’s motion to withdraw his pleas because the
ruling was decided without hearing any evidence on the effects of medications petitioner was
taking at the time his pleas were entered. He asserts that this Court should consider both the
length of time between the entry of his guilty pleas and the filing of the motion to withdraw those
pleas; whether he maintained his innocence throughout the plea proceedings; whether the State’s
case would be prejudiced by the withdrawal of his pleas; and whether he has articulated some
ground in support of his claim of innocence. Petitioner contends that because he sent his letter
asking to withdraw his pleas approximately two months after entry of the same, which was also
prior to sentencing, he should have been permitted to withdraw his pleas for “any fair and just
reason.” However, in his argument he fails to address the prejudice to the State’s case or
articulate some ground in support of his claim of innocence.

        Pursuant to Rule 32(e) of the West Virginia Rules of Criminal Procedure, “[i]f a motion
for withdrawal of a plea of guilty or nolo contendere is made before sentence is imposed, the
court may permit withdrawal of the plea if the defendant shows any fair and just reason. At any
later time, a plea may be set aside only on direct appeal or by petition under [West Virginia]
Code § 53-4A-1.”5 In Duncil this Court addressed the denial of a motion to withdraw a plea
where the defendant therein moved to withdraw approximately two months after the entry of his
guilty plea but asserted that his innocence constituted a “fair and just” reason to withdraw the

       5
         West Virginia Code § 53-4A-1 is entitled “[r]ight to habeas corpus for post-conviction
review; jurisdiction; when contention deemed finally adjudicated or waived; effect upon other
remedies[.]”


                                                 3

same. However, Mr. Duncil did not assert his innocence at the time his plea was entered, and he
failed to offer evidence of his innocence. Id. at 179, 394 S.E.2d at 874. In Duncil, this Court
affirmed the circuit court’s denial of the motion to withdraw his plea.

        Similarly, in the instant matter, petitioner informed the circuit court during his plea
hearing that he was of clear mind to enter into the agreement, he had not abused alcohol or drugs,
he was not under the influence of alcohol or drugs, and he had discussed the terms of the plea
agreement with his family and friends and understood the nature and extent of the agreement. It
is evident from the record that petitioner was able to inform the circuit court that he was aware of
the potential sentences for his convictions under the plea agreement, as well. Therefore, it does
not appear that the circuit court abused its discretion in denying petitioner’s motion to withdraw
his pleas.

       Petitioner’s second assignment of error is that he received ineffective assistance of
counsel from the counsel appointed to represent him in his motion to withdraw his pleas.6 He
contends that his counsel’s alleged failure to adequately investigate “probably affected the
outcome of the case.” He argues that his counsel was given several continuances in order to
perform his duties but failed to offer any proof. Petitioner is critical of his counsel’s failure to
offer any expert medical testimony, asserting “at a minimum [his counsel was required to
conduct] a reasonable investigation enabling him to present to the court evidence of the effects of
[the medications] on [petitioner’s] ability to understand the ramifications of his plea[s].”

        With regard to petitioner’s ineffective assistance of counsel claim. We have previously
held that

               “[i]t is the extremely rare case when this Court will find ineffective
       assistance of counsel when such a charge is raised as an assignment of error on a
       direct appeal. The prudent defense counsel first develops the record regarding
       ineffective assistance of counsel in a habeas corpus proceeding before the lower
       court, and may then appeal if such relief is denied. This Court may then have a
       fully developed record on this issue upon which to more thoroughly review an
       ineffective assistance of counsel claim.”

Syl. Pt. 10, State v. Triplett, 187 W.Va. 760, 421 S.E.2d 511 (1992). In the same vein, we have
also held that

       [t]he very nature of an ineffective assistance of counsel claim demonstrates the
       inappropriateness of review on direct appeal. To the extent that a defendant relies
       on strategic and judgment calls of his or her trial counsel to prove an ineffective
       assistance claim, the defendant is at a decided disadvantage. Lacking an adequate
       record, an appellate court simply is unable to determine the egregiousness of
       many of the claimed deficiencies.



       6
        Petitioner specifically states that he is not “articulating any reason why his prior defense
counsels’ advice to plead guilty on October 29, 2013[,] was manifestly erroneous . . . .”
                                                 4

Miller, 194 W.Va. at 15, 459 S.E.2d at 126. Due to the fact that this is a direct appeal, it is not
clear from the record before this Court why counsel did not present expert testimony or whether
such testimony would have been helpful. Specifically, there is no testimony regarding the same.
However, petitioner would be better served to develop this argument during an evidentiary
hearing in a habeas proceeding. Therefore, based on the record before this Court, we find that the
record is insufficient to show that it is the “extremely rare case” where this Court can find
ineffective assistance of counsel on direct appeal.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: September 2, 2016

CONCURRED IN BY:

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




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