          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                    January 2015 Term
                                    _______________                       FILED
                                                                       April 9, 2015
                                                                       released at 3:00 p.m.
                                      No. 13-1123                    RORY L. PERRY II, CLERK
                                                                   SUPREME COURT OF APPEALS
                                    _______________                     OF WEST VIRGINIA




                            STATE OF WEST VIRGINIA,

                             Plaintiff Below, Respondent


                                            v.

                                       KEITH D.,

                                Defendant Below, Petitioner


       ____________________________________________________________

                  Appeal from the Circuit Court of Summers County

                          Honorable Robert A. Irons, Judge

                     Criminal Action Nos. 13-F-04 & 13-F-06


                                AFFIRMED

       ____________________________________________________________


                                Submitted: February 4, 2015

                                   Filed: April 9, 2015


Matthew D. Brummond, Esq.                        Patrick Morrisey, Esq.
Deputy Public Defender                           Attorney General
Office of the Public Defender                    Derek A. Knopp, Esq.
Kanawha County                                   Assistant Attorney General
Charleston, West Virginia                        Charleston, West Virginia
Counsel for the Petitioner                       Counsel for the Respondent


JUSTICE BENJAMIN delivered the Opinion of the Court.

JUSTICE DAVIS and JUSTICE KETCHUM dissent and reserve the right to file
dissenting opinions.
                             SYLLABUS BY THE COURT



              1.     “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).



              2.     “Rule 32(d) of the West Virginia Rules of Criminal Procedure as it

relates to the right to withdraw a guilty or nolo contendere plea prior to sentence permits

the withdrawal of a plea for ‘any fair and just reason.’” Syl. pt. 1, State v. Harlow, 176

W. Va. 559, 346 S.E.2d 350 (1986).



              3.     “Habitual criminal proceedings providing for enhanced or additional

punishment on proof of one or more prior convictions are wholly statutory. In such

proceedings, a court has no inherent or common law power or jurisdiction.” Syl. pt. 2, in

part, Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981).



              4.     “The words ‘duly cautioned’ contained in the West Virginia

recidivist statute, Code, 61-11-19, as amended, with regard to former convictions and

sentences before a valid judgment can be imposed for an additional sentence as provided


                                             i
in Code, 61-11-18, as amended, are fully complied with when the accused, after being

convicted of the substantive offense and before being sentenced thereon, is later brought

before the court in the same term and advised that the prosecuting attorney has filed a

written information informing the court of former convictions and sentences; and the

court then proceeds to advise the accused of the nature of each former offense and of the

time and place of each former sentence, and then after giving the accused an opportunity

to say whether he has any defense thereto, asks him if he is the same person as was

formerly convicted and sentenced. If he answers in the affirmative, appropriate sentence

may be pronounced in accordance with the statute.” Syl. pt. 4, State ex rel. Mounts v.

Boles, Warden, 147 W. Va. 152, 126 S.E.2d 393 (1962).



             5.     “A person convicted of a felony may not be sentenced pursuant to

W. Va. Code, 61-11-18, - 19 [1943], unless a recidivist information and any or all

material amendments thereto as to the person’s prior conviction or convictions are filed

by the prosecuting attorney with the court before expiration of the term at which such

person was convicted, so that such person is confronted with the facts charged in the

entire information, including any or all material amendments thereto. W. Va. Code, 61­

11-19 [1943].” Syl. pt. 1, State v. Cain, 178 W. Va. 353, 359 S.E.2d 581 (1987).




                                           ii
Benjamin, Justice:



              The defendant below and petitioner herein, Keith D., appeals the October

18, 2013, order of the Circuit Court of Summers County that sentenced him as a habitual

offender to a prison term of life with mercy. After consideration of the assignment of

error raised by the petitioner, we affirm the circuit court’s order.1


                I. FACTUAL AND PROCEDURAL BACKGROUND

              Petitioner Keith D. was charged in a fourteen-count indictment with sex

crimes involving his five-year-old stepdaughter.2 By a separate indictment, the petitioner

also was charged with possession of a firearm by a prohibited person, i.e., a felon. The

indictment charging the petitioner with possession of a firearm by a prohibited person

stated that the petitioner had been convicted of voluntary manslaughter in 2004 in Cabell

County.



              The petitioner entered into a plea agreement with the State in which he pled

guilty to one count of sexual assault in the third degree and to possession of a firearm by

a prohibited person. In return, the State dismissed the remaining counts in the indictment


       1
         We wish to commend counsel for both parties for their preparation and excellent
oral arguments before this Court.
       2
         Because this case involves a minor victim of sex crimes who is related to the
petitioner, we use only the petitioner’s first name and last initial consistent with our
practice in cases involving minors and sensitive facts. See State ex rel. Dept. of H. S. v.
Cheryl M., 177 W. Va. 688, 689 n.1, 356 S.E.2d 181, 182 n.1 (1987).
                                               1

alleging sex crimes against the petitioner’s stepdaughter and agreed to remain silent on

the issue of sentencing. The petitioner’s guilty plea was taken by the circuit court in a

July 19, 2013, hearing. During this hearing, the petitioner indicated that he wished to

waive his right to a presentence report and asked that he be sentenced immediately. The

prosecuting attorney opposed immediate sentencing stating her desire to delay sentencing

until the victim’s mother could be present.3 Consequently, the circuit court set the

sentencing hearing for August 2, 2013.



                On July 25, 2013, the State filed an information of prior convictions with

the circuit court pursuant to W. Va. Code §§ 61-11-184 and 61-11-195 in which it alleged

that the petitioner is the same person previously convicted of two prior felonies: grand

larceny in November 1996 in the Circuit Court of Cabell County and voluntary

manslaughter in February 2004 in the Circuit Court of Cabell County. The information

requested that the petitioner be sentenced to the state correctional facility for life.

       3
        According to the prosecuting attorney, the victim’s mother was not present at the
hearing due to a medical emergency.
       4
           According to W. Va. Code § 61-11-18(c) (2000),

                       When it is determined, as provided in section nineteen
                of this article, that such person shall have been twice before
                convicted in the United States of a crime punishable by
                confinement in a penitentiary, the person shall be sentenced
                to be confined in the state correctional facility for life.
       5
        The relevant portion of W. Va. Code § 61-11-19 (1943), is set forth in Part III of
this Opinion.



                                               2

                 Thereafter, the petitioner moved to withdraw his guilty plea pursuant to W.

Va. R. Crim. P. 32(e)6 on the basis that at the time he accepted the State’s plea offer, he

was not advised that his plea subjected him to a potential life sentence as a habitual

offender. He also asserted that his counsel did not notify him that he could be sentenced

as a habitual offender. The circuit court denied the petitioner’s motion to withdraw his

guilty plea. A jury subsequently found the petitioner guilty of being a habitual offender

and he was sentenced to life in prison.



                                 II. STANDARD OF REVIEW

                 In this case, the petitioner argues that the circuit court erred in refusing to

permit him to withdraw his guilty plea prior to sentencing. This Court has held:

                        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). Accordingly, we are tasked with determining whether the circuit court abused

its discretion when it denied the petitioner’s motion to withdraw his guilty plea.



       6
           See infra Part III.
                                                3

                                     III. ANALYSIS


              The petitioner’s only assignment of error is that the circuit court erred in

refusing to permit him to withdraw his guilty plea. According to Rule 32(e) of the West

Virginia Rules of Criminal Procedure, in pertinent part, “[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.” We

previously have recognized that “Rule 32(d) of the West Virginia Rules of Criminal

Procedure as it relates to the right to withdraw a guilty or nolo contendere plea prior to

sentence permits the withdrawal of a plea for ‘any fair and just reason.’” Syl. pt. 1, State

v. Harlow, 176 W. Va. 559, 346 S.E.2d 350 (1986).7



              The crux of the petitioner’s argument is that he has shown a fair and just

reason for withdrawing his guilty plea: he did not know the State could seek a habitual

offender sentence after he pled guilty with the understanding that he could receive no

more than ten years in prison. For the following reasons, we find no merit to this

argument.



              The issue in this case is governed by this Court’s decision in State ex rel.

Appleby v. Recht, 213 W. Va. 503, 583 S.E.2d 800 (2002). In Appleby, the petitioner, Mr.

Appleby, pled guilty to both counts in the indictment against him: driving under the


7
 At the time that Harlow was decided, the portion of Rule 32 regarding the withdrawal
of guilty and nolo contendere pleas was located at subsection (d) of that rule.
                                             4

influence (“DUI”), third offense, and driving while on a revoked license, third offense,

for DUI. At the hearing in which Mr. Appleby entered his plea, the trial court advised

him that the maximum term of imprisonment for each of the offenses to which he pled

guilty was one to three years, and that because the sentences could be imposed

consecutively, the maximum sentence he could receive was incarceration for a term of

two to six years. The trial court did not indicate that the State could initiate a habitual

offender proceeding.



              Thereafter, the State filed an information alleging that Mr. Appleby was a

habitual offender in that he had three prior convictions for DUI, third offense, one

unlawful assault conviction, and one felony conviction for driving on a revoked license

for DUI, third offense. Mr. Appleby, if sentenced as a habitual offender, was subject to a

life sentence with the opportunity for parole. The trial court denied Mr. Appleby’s motion

to dismiss the habitual offender information. Mr. Appleby then sought relief in

prohibition in this Court.



              Mr. Appleby argued before this Court that the trial court erred in, inter alia,

not dismissing the habitual offender proceeding because when he pled guilty, the trial

court informed him he would be facing only a maximum sentence of two to six years—

not the possibility of a life sentence as a habitual offender. This Court rejected Mr.

Appleby’s argument based on two points of law. First, this Court found that when a

defendant pleads guilty, the trial court must make him aware of only the direct

                                             5

consequences of his plea; not the collateral consequences of his plea. Specifically, we

stated as follows:

                     The law is clear that a valid plea of guilty requires that
              the defendant be made aware of all “the direct consequences
              of his plea.” By the same token, it is equally well settled that,
              before pleading, the defendant need not be advised of all
              collateral consequences of his plea, or, as one Court has
              phrased it, of all “possible ancillary or consequential results
              which are peculiar to the individual and which may flow from
              a conviction of a plea of guilty, . . . .”

Appleby, 213 W. Va. at 511, 583 S.E.2d at 808, quoting Cuthrell v. Director, Patuxent

Inst., 475 F.2d 1364, 1365–66 (4th Cir. 1973) (citations omitted). Second, we determined

that a habitual offender proceeding is a collateral consequence of a guilty plea,

explaining:

              The distinction between “direct” and “collateral”
              consequences of a plea, while sometimes shaded in the
              relevant decisions, turns on whether the result represents a
              definite, immediate and largely automatic effect on the range
              of the defendant’s punishment.
                     Under West Virginia Code §§ 61-11-18 & 19, the
              imposition of a life sentence is not definite, immediate and
              largely automatic. The State not only retains the discretion to
              decide when to pursue recidivist sentencing (or to decide not
              to so proceed), but the separate nature of the recidivist
              proceeding requires the State to satisfy a number of
              requirements such as: (1) filing a written information, (2)
              proving beyond a reasonable doubt that each penitentiary
              offense, including the principal penitentiary offense, was
              committed subsequent to each preceding conviction and
              sentence, and (3) proving beyond a reasonable doubt to the
              jury the identity of the defendant. . . .
                     The possible significance of a guilty verdict for
              purposes of the habitual offender act is a classic example of a
              conviction’s consequences that is collateral in the sense that
              the consequence requires application of a legal provision


                                             6
              extraneous to the definition of the criminal offense and the
              provisions for sentencing those convicted under it.

Appleby, 213 W. Va. at 511–512, 583 S.E.2d at 808–809 (citations omitted) (internal

quotation marks omitted) (ital. omitted). Thus, this Court concluded in Appleby that the

constitution does not “require[] that a criminal defendant be advised of the possibility of

habitual criminal proceedings prior to the entry of a guilty plea.” Id. at 512, 583 S.E.2d at

809 (citation omitted). See also Gardner v. Ballard, No. 13-1301, 2014 WL 5546202, at

* 3 (W. Va. Nov. 3, 2014) (memorandum decision) (concluding that “pursuant to

Appleby, the circuit court had no duty to inform petitioner about a possible recidivist

action because such an action was not a direct consequence of his guilty plea”).



              The petitioner sets forth several reasons why this Court should not apply

Appleby to the facts of the instant case. First, the petitioner attempts to distinguish the

facts of Appleby from those of the instant case. For example, the petitioner notes that

Appleby was before this Court on a petition for a writ of prohibition instead of an appeal.8


       8
         The petitioner also refers to a footnote in Appleby in which this Court indicated
that the State informed the defendant of its intent to file a habitual offender information
as early as a bond hearing. Specifically at Appleby, 213 W. Va. at 512 n.6, 583 S.E.2d at
809 n.6, this Court indicated:

                     We also note that the State says that it specifically
              informed Mr. Appleby’s trial counsel that, if he was
              convicted, the State would seek a recidivist sentence, and that
              discovery was apparently provided to Mr. Appleby that
              included a list of Mr. Appleby’s prior convictions. We
              additionally note that at a bond hearing on October 31, 2001,
              the Prosecuting Attorney told the trial judge, in the presence
              of Mr. Appleby and counsel, “I do not believe that two to six
                                             7
              We see no merit in this argument. The distinguishing facts of Appleby

relied on by the petitioner did not control our analysis in that case. Rather, our analysis

and decision in Appleby was based on the rule that a criminal defendant does not have to

be advised of the possibility of habitual criminal proceedings prior to the entry of a guilty

plea because the filing of a habitual offender information is a collateral and not a direct

consequence of a guilty plea. When we apply that rule of law from Appleby to the facts of

this case, we conclude that the failure to inform the petitioner prior to his guilty plea that

a habitual offender information may be filed against him does not constitute error.



              In a second challenge to the application of Appleby to the present case, the

petitioner asserts that “the legal theory underlying the . . . Appleby decision[] has recently

come under scrutiny and its continued validity is questionable[]” after the United States

Supreme Court’s decision in Padilla v. Kentucky, 559 U.S. 356 (2010). The petitioner

mischaracterizes Padilla. The Supreme Court’s holding in Padilla is that “counsel must

inform her client whether his plea carries a risk of deportation.” Padilla, 559 U.S. at 374.

This holding was based on the Supreme Court’s recognition that “recent changes in our


              is the maximum sentence he may be facing. And in fact, this
              Court has often indicated that DUI three is an act of violence,
              and I contend that there’s a possibility of a much steeper
              sentence. . . .

The fact that this information is placed in a footnote means that it was not a factor in our
analysis in Appleby. It is axiomatic that “language in a footnote generally should be
considered obiter dicta which, by definition, is language ‘unnecessary to the decision in
the case and therefore not precedential.’ Black’s Law Dictionary 1100 (7th ed. 1999).”
State ex rel. Med. Assurance v. Recht, 213 W. Va. 457, 471, 583 S.E.2d 80, 94 (2003).
                                              8

immigration law have made removal nearly an automatic result for a broad class of

noncitizen offenders[,]” id. at 366, so that “[d]eportation as a consequence of a criminal

conviction is, because of its close connection to the criminal process, uniquely difficult to

classify as either a direct or collateral consequence.” Id. Because the Supreme Court’s

holding in Padilla deals specifically with deportation as a consequence of a guilty plea,

Padilla does not affect this Court’s holding in Appleby nor its underlying rationale. This

is because in Appleby we expressly found that a habitual offender proceeding is a

collateral consequence of a guilty plea.



              Finally, the petitioner contends that Appleby represents a minority position

among the States, is bad policy, and should be overruled. According to the petitioner, it is

preferable to require the trial court or the prosecuting attorney to inform a defendant of

the prosecuting attorney’s plan to file a habitual offender information prior to a

defendant’s conviction.



              We agree that it is preferable for a defendant to be advised of potential

habitual offender proceedings before he or she enters a guilty plea. As this Court opined

in Appleby, “we think that from a practical standpoint the better course of action for a

trial court is to advise a defendant about the possibility of recidivist proceedings being

instituted in every case where West Virginia Code § 61-11-18 might apply.” 213 W. Va.

at 512 n.7, 583 S.E.2d at 809 n.7 (citation omitted). However, this Court previously has

recognized that “[h]abitual criminal proceedings providing for enhanced or additional

                                             9

punishment on proof of one or more prior convictions are wholly statutory. In such

proceedings, a court has no inherent or common law power or jurisdiction.” Syl. pt. 2, in

part, Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981).



              The Legislature set forth the procedure for habitual offender proceedings in

W. Va. Code § 61-11-19 (1943), in part, as follows:

                     It shall be the duty of the prosecuting attorney when he
              has knowledge of former sentence or sentences to the
              penitentiary of any person convicted of an offense punishable
              by confinement in the penitentiary to give information thereof
              to the court immediately upon conviction and before
              sentence. Said court shall, before expiration of the term at
              which such person was convicted, cause such person or
              prisoner to be brought before it, and upon an information filed
              by the prosecuting attorney, setting forth the records of
              conviction and sentence, or convictions and sentences, as the
              case may be, and alleging the identity of the prisoner with the
              person named in each, shall require the prisoner to say
              whether he is the same person or not. If he says he is not, or
              remains silent, his plea, or the fact of his silence, shall be
              entered of record, and a jury shall be impanelled to inquire
              whether the prisoner is the same person mentioned in the
              several records. If the jury finds that he is not the same
              person, he shall be sentenced upon the charge of which he
              was convicted as provided by law; but if they find that he is
              the same, or after being duly cautioned if he acknowledged in
              open court that he is the same person, the court shall sentence
              him to such further confinement as is prescribed by section
              eighteen [§ 61-11-18] of this article on a second or third
              conviction as the case may be.

The statute clearly provides that the prosecuting attorney’s filing of an information

setting forth a defendant’s prior conviction or convictions is timely if it is filed in the

same term of the defendant’s current conviction and before sentencing for that


                                            10

conviction. This code section does not require the trial court or the prosecuting attorney

to inform a defendant of the potential filing of habitual offender information prior to the

defendant’s conviction or guilty plea. In recognition of the specific procedure set forth in

W. Va. Code § 61-11-19, this Court held in syllabus point 4 of State ex rel. Mounts v.

Boles, 147 W. Va. 152, 126 S.E.2d 393 (1962), that

                     [t]he words “duly cautioned” contained in the West
              Virginia recidivist statute, Code, 61-11-19, as amended, with
              regard to former convictions and sentences before a valid
              judgment can be imposed for an additional sentence as
              provided in Code, 61-11-18, as amended, are fully complied
              with when the accused, after being convicted of the
              substantive offense and before being sentenced thereon, is
              later brought before the court in the same term and advised
              that the prosecuting attorney has filed a written information
              informing the court of former convictions and sentences; and
              the court then proceeds to advise the accused of the nature of
              each former offense and of the time and place of each former
              sentence, and then after giving the accused an opportunity to
              say whether he has any defense thereto, asks him if he is the
              same person as was formerly convicted and sentenced. If he
              answers in the affirmative, appropriate sentence may be
              pronounced in accordance with the statute.

More recently, we have held:

                      A person convicted of a felony may not be sentenced
              pursuant to W. Va. Code, 61-11-18, -19 [1943], unless a
              recidivist information and any or all material amendments
              thereto as to the person’s prior conviction or convictions are
              filed by the prosecuting attorney with the court before
              expiration of the term at which such person was convicted, so
              that such person is confronted with the facts charged in the
              entire information, including any or all material amendments
              thereto. W. Va. Code, 61-11-19 [1943].

Syl. pt. 1, State v. Cain, 178 W. Va. 353, 359 S.E.2d 581 (1987). In the instant case, the

requirements of W. Va. Code § 61-11-19 were fully complied with below. Further,

                                            11

because habitual offender proceedings are statutorily created, this Court has no inherent

power to amend the legislatively-prescribed procedure for these proceedings. Finally, this

Court finds no reason to depart from the law as set forth in Appleby inasmuch as the

rationale supporting that law remains valid.



                                   IV. CONCLUSION

              This Court concludes that the trial court and the prosecuting attorney did

not have a duty under our law to inform the petitioner of the possibility of enhanced

sentencing under W. Va. Code §§ 61-11-18 and 6-11-19 before the petitioner entered his

guilty plea. Consequently, the circuit court did not abuse its discretion in denying the

petitioner’s motion to withdraw his guilty plea. Accordingly, the October 18, 2013, order

of the Circuit Court of Summers County that sentenced the petitioner as a habitual

offender to a prison term of life with mercy is affirmed.

                                                                               Affirmed.




                                               12

