                          STATE OF WEST VIRGINIA

                        SUPREME COURT OF APPEALS



State of West Virginia,
Plaintiff Below, Respondent                                              FILED
                                                                    November 19, 2015
                                                                        released at 3:00 p.m.
vs.) No. 14-0133 (Cabell County 10-F-362)                               RORY L. PERRY II, CLERK
                                                                      SUPREME COURT OF APPEALS
                                                                          OF WEST VIRGINIA
Michael Austin S.
Defendant Below, Petitioner


                           MEMORANDUM DECISION

       The petitioner, Michael Austin S.,1 by counsel George Castelle, appeals the circuit
court’s order entered January 21, 2014, which denied the petitioner’s motion to correct
his sentence for convictions of various sexual offenses. Specifically, the circuit court
rejected the petitioner’s request to delete the sentencing provision placing him on
supervised release for a term of fifty years. The State of West Virginia appeared by
counsel Misha Tseytlin, J. Zak Ritchie, and Gilbert Dickey.

       This Court has considered the parties’ briefs, their oral arguments, and the record
on appeal. Upon consideration of the standard of review, the briefs and arguments, and
the record presented, the Court discerns no substantial question of law and no prejudicial
error. Consequently, a memorandum decision affirming the order of the circuit court is
the appropriate disposition pursuant to Rule 21 of the West Virginia Rules of Appellate
Procedure.

       The grand jury returned an indictment against the petitioner on December 9, 2010,
charging him in Counts I and III with first-degree sexual assault, see W. Va. Code § 61­
8B-3 (2006), and in Counts II and IV with sexual abuse by a parent or custodian, see id.
§ 61-8D-5 (2010). The two victims were the petitioner’s stepdaughters, whom he had


      1
         Consistently with our long-standing practice, we endeavor to protect the identity
of the juvenile victims in this sensitive matter by refraining from referring to the
petitioner by his surname. See, e.g., Matter of Jonathan P., 182 W. Va. 302, 303 n.1, 387
S.E.2d 537, 538 n.1 (1989).



                                            1

allegedly subjected to his predations over a four-year period ending in the summer of
2010, when the girls were seven and nine, respectively.

        The petitioner came to an agreement with the State whereby he consented to plead
guilty to lesser charges without acknowledging his culpability. See syl. pt. 1, Kennedy v.
Frazier, 178 W. Va. 10, 357 S.E.2d 43 (1987) (“An 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.”); cf. North Carolina v. Alford, 400 U.S. 25 (1970) (detailing the analogous
federal precedent). In exchange for the guilty plea, the State acceded to the petitioner’s
request for certain considerations bearing on his sentencing. Perhaps most significantly,
the State agreed to forbear from seeking a recidivist enhancement based on the
petitioner’s convictions some ten years earlier for armed robbery, aggravated robbery,
and engaging in a fraudulent scheme. See W. Va. Code § 61-11-18(c) (2000) (specifying
that a person convicted of a felony who “shall have been twice before convicted in the
United States of a crime punishable by confinement in a penitentiary . . . shall be
sentenced to be confined . . . for life”).

        The record does not disclose any written agreement between the parties in advance
of the plea hearing convened by the circuit court on January 10, 2012. At that hearing,
the following discussion ensued:

             THE COURT: Put on the record what the plea is.

             PROSECUTOR: [The petitioner] is going to enter an Alford
             plea to attempt to commit a felony, a lesser included offense
             of Count I; attempt to commit a felony, a lesser included
             offense to Count II; and attempt to commit a felony, a lesser
             included offense of Count III.

             He is to receive a one- to three-year sentence on Count I, a
             one- to three-year sentence on Count II, a one- to three-year
             sentence on Count III consecutive. He also stipulates that he
             will not petition for parole, that he will just serve out the max
             of his sentence.
                                            ***
             [H]e will be required by the State of West Virginia to register
             for life [on the sex-offenders registry]. . . . And then he is
             also subjected to enhanced supervision at the discretion of the
             Court for a period to be determined by the Court upon his


                                            2
              release. The other count in the indictment will be dismissed
              pursuant to the plea, and the state will not seek —

              THE COURT:           That’s Count IV?

              PROSECUTOR:           Yes, sir. And the state will not seek
              recidivist action against [the petitioner].

(Emphasis added). Later at the hearing, amidst the required plea colloquy with the
petitioner himself, the court inquired of the prosecutor of the particular requirements with
respect to sex offenders. The prosecutor responded:

              I believe that there are actually two sets of requirements.
              There is one set of requirements to be in compliance with the
              registration state and federal, and then there are some
              additional terms and conditions that the State of West
              Virginia imposes on individuals that[ are] contained in their
              terms and conditions of supervised release.

(Emphasis added). Subsequently, in response to another inquiry from the court, the
prosecutor clarified that “Count I and Count III are mandatorily noted as registerable
offenses.” Then, the parties specifically focused on supervised release:

              DEFENSE COUNSEL:          Judge, there are terms and
              conditions of supervised release that [the prosecutor] has
              given me that I have not gone over with [the petitioner]. I
              have gone over the things we just talked about, but the
              document he just gave me I don’t think I have seen.

              PROSECUTOR:          That’s the one I gave you yesterday.

              DEFENSE COUNSEL:            Well, maybe I didn’t go over it
              with him.

              PROSECUTOR:          We were thinking that, since the Court
              would not have to read all seven pages on the record, if he’s
              gone over it with him and he acknowledges that.

              DEFENSE COUNSEL:            Do you remember going over
              that?

              PETITIONER:          Yes, we went over that.

                                             3

                                             ***
              THE COURT:              Let me have the list, and let’s make sure
              it’s on the record. . . . Well, do I need to go over this before I
              accept his plea or after I accept his plea?

              PROSECUTOR:          I believe that’s something that is done at
              the time of sentencing, so it’s after acceptance of the plea.

              THE COURT:            We will hold off for a minute.

(Emphasis added).

        The prosecutor proceeded to recite the factual basis supporting the plea, detailing
the conduct underlying the offenses charged in the indictment. Upon obtaining
confirmation from the petitioner’s counsel below that the proffered facts would support a
guilty verdict, the circuit court asked the petitioner to review and sign the pages of a form
titled “Questions Relative to Entry of Plea of Guilty” (the “Questions Form”) that his
counsel had previously undertaken to complete. The petitioner complied. Question 50
required a handwritten description of any plea agreement. The petitioner’s counsel below
provided the following summary:

              Plea to attempt to commit a felony, lesser included offenses
              of counts 1-3, Defendant agrees to waive [presentencing
              investigation] and be sentenced to three consecutive 1-3 year
              sentences and defendant agrees to waive parole eligibility.
              State [to] dismiss remaining count and agrees not to pursue
              recidivist.

The circuit court found that the petitioner had entered his plea knowingly, intelligently,
and voluntarily, and, because the petitioner had waived preparation of the presentencing
report, the court immediately moved on to sentencing. After imposing the agreed-upon
cumulative term of imprisonment totaling three to nine years, the court directed that the
petitioner serve a fifty-year term of supervised release, detailing on the record each
condition thereof. The court’s recitation exceeded eight transcribed pages, after which
the petitioner affirmatively indicated his understanding of the terms of the supervised
release. The petitioner specifically acknowledged the court’s admonition that “if you
violate the terms and conditions of this you can be returned to prison for up to 50 years.”

       The circuit court memorialized its rulings at the consolidated hearing in four
distinct orders, including its “Sentencing Order and Order Committing Defendant to
Custody of Commissioner of the West Virginia Division of Corrections and Imposing
Term of Supervised Release,” filed January 13, 2012 (the “Sentencing Order”), and the

                                              4

predicate Guilty Plea Order (the “Plea Order”) that was nonetheless entered thereafter, on
January 17, 2012. In the Plea Order, the court adjudged the petitioner

              guilty of felony offense of Attempt to Commit a Felony, a
              lesser included offense of 1st Degree Sexual Assault as
              contained in Count I of the Indictment in this case; upon
              conviction for the felony offense of Attempt to Commit a
              Felony, a lesser included offense of Sexual Abuse by a
              Parent, Guardian or Custodian, as contained in Count II of the
              Indictment in this case; and upon conviction for the felony
              offense of Attempt to Commit a Felony, a lesser included
              offense of 1st Degree Sexual Assault, as contained in Count
              III of the Indictment.

Neither the Plea Order nor the first-filed Order of Commitment (the “Commitment
Order”), entered January 10, 2012, mention supervised release. The Sentencing Order,
however, at length exceeding six pages of double-spaced print, set forth the terms and
conditions of the fifty-year term of supervised release therein imposed, after first
confirming the circuit court’s oral ruling that the petitioner would be imprisoned for one
to three years on each of his three felony convictions for “lesser included” offenses of
those charged, “for a total term of incarceration of not less than three (3) years nor more
than nine (9) years.”

        Soon thereafter, on January 23, 2012, the circuit court docketed the fourth of its
dispositive orders, titled “Order of Terms and Conditions of Probation” (the “Probation
Order”). The Probation Order, bearing the signatures of the petitioner, his counsel, the
circuit judge, and the probation officer, recounted once more that the petitioner had “been
placed on extended probation at the completion of your sentence for fifty (50) years,”
enumerating forty-five discrete stipulations for him to fulfill in order to avoid returning to
prison.2 The petitioner filed no appeal from or otherwise objected to or took exception to
any aspect of his sentencing.


       2
         Those stipulations included the statutory requirement that the petitioner refrain
from “[e]stablishing a residence or accepting employment within one thousand feet of a
school or child care facility,” W. Va. Code § 62-12-26(b)(1) (2015), together with, inter
alia, restrictions on out-of-state travel, possession of firearms, consumption of alcoholic
beverages, association with felons and fellow probationers, and intimate relationships
with persons who have children less than eighteen years of age.



                                              5

       Notwithstanding the prolonged discussion of supervised release during the
consolidated hearing on January 10, 2012, the terms of which were memorialized shortly
thereafter in the conforming written orders, the petitioner, proceeding pro se, filed a
motion for correction of sentence on December 6, 2013. See W. Va. R. Crim. P. 35(a)
(providing that the circuit court “may correct an illegal sentence at any time”). Therein,
the petitioner requested that his sentence be amended “to reflect that the defendant will
have no period of supervised release because W. Va. Code § 62-12-26 does not
contemplate a person convicted of violating W. Va. Code § 61-11-8 (attempting to
commit a felony) having to serve any period of supervised release.”3

       By its order of January 21, 2014, the circuit court denied the petitioner’s motion.
In so ruling, the court acknowledged that “[t]he defendant is correct that . . . supervised
release is not part of the requirements for pleading guilty to Attempt to Commit a Felony
charges.” The court recalled its finding in the Sentencing Order, however, that the
petitioner was sexually motivated in committing the offenses of conviction, explaining
that the circuit court “would not have accepted the defendant’s guilty plea to these
charges, due to the defendant’s motivation for committing these crimes, unless the

       3
         Section 62-12-26 commands at the threshold that “any defendant convicted . . .
of a violation of [W. Va. Code § 61-8-12] or a felony violation of the provisions of article
eight-b, eight-c or eight-d of said chapter shall . . . be required to serve . . . a period of
supervised release of up to fifty years.” W. Va. Code § 62-12-26(a) (2015). Section 61­
8-12 proscribes incest, while the referenced articles of Chapter 62 relate to, respectively,
substantive sexual offenses (including sexual assault, of which the petitioner was accused
in Counts I and III of his indictment); the filming of minors in sexually explicit conduct;
and child abuse (including sexual abuse by a parent, guardian, or custodian, which was
the underpinning of Count II).

        We would be remiss if we neglected to mention that the petitioner necessarily
mischaracterizes his convictions as being “of violating W. Va. Code § 61-11-8.” The so-
called “attempt statute” prescribes various degrees of punishment for “[e]very person
who attempts to commit an offense, but fails to commit or is prevented from committing
it,” unless the attempt is elsewhere criminalized by a more specific provision relating to
the particular substantive offense. The attempt statute does not itself describe a criminal
offense. State v. Starkey, 161 W. Va. 517, 522 n.2, 244 S.E.2d 219, 223 n.2 (1978)
(“‘The crime of attempt does not exist in the abstract but rather exists only in relation to
other offenses.’” (quoting W. LaFave & A. Scott, Handbook on Criminal Law 49
(1972))), overruled on other grounds by State v. Guthrie, 194 W. Va. 657, 461 S.E.2d
163 (1995).



                                              6

defendant consented to registering on the Sex Offender Registry and a period of
supervised release.” See W. Va. Code § 15-12-2(c) (2012) (requiring registration as a sex
offender for “[a]ny person who has been convicted of a criminal offense,” with respect to
which “the sentencing judge made a written finding that the offense was sexually
motivated”).4

        The petitioner noticed the instant appeal on February 14, 2014, pursuant to which
this Court appointed him counsel, directed supplemental briefing, and scheduled
argument. On February 26, 2015, the petitioner was released from custody, having
fulfilled his sentence of imprisonment by serving approximately four and one-half years
since his 2010 arrest.

       We acknowledge the applicable standards under which we review the circuit
court’s denial order:

              In reviewing the findings of fact and conclusions of law of a
              circuit court concerning an order on a motion made under Rule
              35 of the West Virginia Rules of Criminal Procedure, we apply
              a three-pronged standard of review. We review the decision
              on the Rule 35 motion under an abuse of discretion standard;
              the underlying facts are reviewed under a clearly erroneous
              standard; and questions of law and interpretations of statutes
              and rules are subject to a de novo review.

Syl. pt. 1, State v. Head, 198 W. Va. 298, 480 S.E.2d 506 (1996). Moreover, “[t]his
Court may, on appeal, affirm the judgment of the lower court when it appears that such
judgment is correct on any legal ground disclosed by the record, regardless of the ground,
reason or theory assigned by the lower court as the basis for its judgment.” Syl. pt. 3,
Barnett v. Wolfolk, 149 W. Va. 246, 140 S.E.2d 466 (1965).

       Although Rule 35(a) allows for the correction of an illegal sentence by the circuit
court “at any time,” it does not follow that the mere making of a Rule 35(a) motion
requires the court to deconstruct its prior ruling where the factual and legal bases for the

       4
         No similar written finding is necessary regarding certain offenses that are
inherently sexually motivated, including those for which the petitioner was indicted. See
W. Va. Code § 15-12-2(b)(2) (2012) (requiring registration for convictions under Article
8B of Chapter 61), id. § 15-12-2(b)(4) (mandatory registration imposed for, inter alia,
convictions pursuant to W. Va. Code § 61-8D-5 or § 61-8D-6).



                                             7

motion should have been apparent at the time of sentencing or reasonably thereafter,
particularly if the purported illegality is not manifest from the record.5 The petitioner
here waited for nearly two years following the imposition of his sentence to move the
circuit court to correct it, with nothing having occurred to justify such a delay other than
the petitioner’s lately acquired epiphany as he neared the completion of his prison term
that the plea agreement to which he had agreed and from which he had benefited would
soon subject him to an extended term of supervised release.

        The petitioner’s protestations of ignorance ring hollow. From the record, we
observe: (1) the prosecutor’s statements in open court that the petitioner was subject to
“enhanced supervision” and certain “terms and conditions of supervised release”; (2) the
petitioner’s personal acknowledgment on the record that he had gone over those terms
and conditions with counsel; (3) the petitioner’s assent to the circuit court’s explanation
of those terms and conditions during the sentencing portion of the consolidated hearing,
at which point the court could have easily revisited the guilty plea had it been informed of
any misgivings; and (4) the clear language of the several orders memorializing the
supervised release aspect of the circuit court’s judgment. Put simply, the petitioner’s
after-the-fact assertions are not credible. They fail to negate the persuasive affirmative
indicia of the parties’ mutual understanding and intent at the time of their agreement.

       Moreover, no sentencing error or illegality is manifest from the record. The
parties, represented by counsel, engaged in arms-length negotiations to forgo trial and
reach an agreement whereby the petitioner obtained the following benefits: (1) that he
would be convicted of three charges, rather than the four counts contained in the
indictment; (2) that he would not plead to the specific charges returned by the grand jury,
but rather would plead guilty to lesser-included offenses carrying a shorter term of
imprisonment; and (3) that he would avoid an enhanced sentence for recidivism. In
return, the State assured itself: (1) that the petitioner would be convicted and imprisoned
as a matter of certainty; (2) that, after the petitioner was released from prison, the public
would gain a measure of protection by virtue of his lifetime registration as a sex offender;
and (3) that the public would be further protected as the result of the petitioner’s
compliance with a fifty-year term of supervised release.6 The petitioner’s sentencing in

       5
         The federal analog to our rule provides that a “court may correct a sentence that
resulted from arithmetical, technical, or other clear error,” but only “[w]ithin 14 days
after sentencing.” Fed. R. Crim. P. 35(a).
       6
        We also observe that, because of the plea agreement, the infant step-daughters
were not required to testify at trial.



                                             8

all respects appears to have conformed to the parties’ negotiated agreement. Having
received all of the benefits from the agreement he negotiated and agreed to, the petitioner
ought not now be heard to complain of his bargain. His time to object was at the time of
the sentencing, not some two years later.

       For the foregoing reasons, we affirm.

                                                                                 Affirmed.

ISSUED: November 19, 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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