                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS

State of West Virginia, Plaintiff Below,
Respondent                                                                          FILED
                                                                               September 18, 2015
vs) No. 14-0886 (Wood County 13-F-45)                                          RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Norman Rattliff, Jr., Defendant Below,
Petitioner


                              MEMORANDUM DECISION
       Petitioner and defendant below, Norman Rattliff, Jr., by counsel George M. Torres,
appeals the March 31, 2014, order of the Circuit Court of Wood County that denied his pro se
Motion for Correcting Sentencing and Time Served following his guilty plea to the charges of
Forgery, Robbery in the Second Degree, and Robbery. The State of West Virginia, by counsel
Laura Young, 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.

        On January 17, 2013, a grand jury in the Circuit Court of Wood County returned an
eleven count indictment against petitioner charging him with one count each of forgery; uttering;
driving while license revoked for driving under the influence of alcohol, third offense; unlawful
taking of a vehicle; possession of a controlled substance; robbery in the second degree; and
robbery. The indictment further charged petitioner with two counts each of driving while under
the influence of alcohol and failure to provide notice of registration changes, second offense.

        On October 22, 2013, following plea negotiations, the State and petitioner entered into a
plea agreement in which it was agreed that petitioner would plead guilty to the offenses of
forgery (Count One), second degree robbery (Count Ten), and robbery (Count Eleven). The
written plea agreement provided that the penalty for forgery is one to ten years imprisonment or,
in the discretion of the court, not more than one year in jail and a fine not to exceed $500; that
the penalty for second degree robbery is five to eighteen years imprisonment; and that the
penalty for robbery is not less than ten years imprisonment. The agreement further provided that
the sentences shall run concurrently; that petitioner’s sentence “shall be capped at no more than
30 years in prison with respect to the Robbery charge contained in Count Eleven[;]” and that the
remaining charges in the indictment would be dismissed.


                                                1
        During the course of the plea hearing that was conducted on October 22, 2013, the State
became aware of several errors in the plea agreement and, as a result, the parties corrected it1 to
reflect that the statutory penalty for robbery under West Virginia Code §61-2-12(c), as charged
in the indictment, is ten to twenty years imprisonment. The agreement was further altered to
reflect that the sentences for robbery and second degree robbery would be served concurrently
while the sentence for forgery would be served consecutively to the robbery sentences. The
modified plea agreement did not provide for a thirty year cap given the indeterminate sentence
for robbery under West Virginia Code §61-2-12(c) and further provided that the State agreed to
dismiss the remaining charges in the indictment.2 After extensive inquiry of petitioner as to
whether he understood the terms and conditions of the plea agreement and knowingly,
voluntarily, and willingly entered into the same, the circuit court accepted petitioner’s plea of
guilty as provided for in the modified plea agreement. Petitioner also answered and signed a
written Defendant’s Statement in Support of Plea of Guilty; similarly, his counsel answered and
signed an Attorney’s Statement in Support of Guilty Plea. A sentencing hearing was scheduled
for February 6, 2014.

        Meanwhile, on November 18, 2013, petitioner, pro se, filed a Motion to Withdraw My
Plea Agreement, in which he alleged that his attorney was being intimidated by the assistant
prosecuting attorney; was “scare[d]” and “terrif[i]ed” to take the case to trial after the assistant
prosecuting attorney “took over the case[;]” was inexperienced; and “sold me out to the
prosecuting attorney.” Petitioner further alleged that his attorney advised him that if he “did not
take this plea[,] that [the circuit judge] would be mad if I went to trial on my case’s [sic] and if I
lost he would put the max of everything he could on me for taking this all to trial.”

     Thereafter, petitioner’s attorney moved to withdraw as counsel. Following a hearing on
December 5, 2013, the circuit court granted the motion and appointed new counsel.

        On February 6, 2014, petitioner, by counsel, filed a second Motion to Withdraw Guilty
Plea in which he alleged

       that the plea was entered only after [petitioner] learned that his then-counsel was
       clearly intimidated by the prosecutor and was unwilling to take the cases to trial.
       At the time, the [petitioner] believed that accepting the plea offer was his only
       option and that taking the cases to trial was not realistic, given his counsel’s fear
       and concerns. Thus, the plea was entered under duress. It was only after the plea
       was entered that [petitioner] realized that he could request new counsel, which he
       did.

       1
           Petitioner did not object to the modification of the plea agreement.
       2
         By order entered April 18, 2013, the circuit court had ordered that petitioner be tried in
four separate trials. Following a jury trial on April 23 and 24, 2013, on the two counts of failure
to provide notice of registration changes, second offense, a mistrial was declared; a new trial was
scheduled for October 22, 2013. However, these charges, and those remaining under the
indictment, were dismissed under both the initial and modified plea agreements.


                                                   2
        At the commencement of the sentencing hearing on February 7, 2014, petitioner’s
counsel advised the circuit court that petitioner wished to withdraw the previously-filed motion
to withdraw the guilty plea and that he was prepared to proceed with sentencing. The circuit
court granted petitioner’s motion, accepted the guilty plea as described above, and, additionally,
granted petitioner credit of 448 days for time served against the concurrent sentences imposed
for robbery and second degree robbery. On the conviction of forgery, the circuit court concluded
that petitioner was not entitled to credit for time served.

       On March 26, 2014, petitioner, pro se, filed a motion to correct his sentence, inter alia,
on the ground that he should also have been granted credit for time served on the forgery
conviction.3 See W.Va. R. Crim. P. 35 (stating that “[t]he court may correct an illegal sentence
at any time and may correct a sentence imposed in an illegal manner within the time period
provided herein for the reduction of sentence.”). By order entered March 31, 2014, the circuit
court denied petitioner’s motion. This appeal followed.

        Our review of the circuit court’s order denying petitioner’s motion to correct his sentence
is guided by the following:

              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 507 (1996). Furthermore, “[t]he abuse of
discretion standard on Rule 35 motions continues the deference we have traditionally accorded
trial courts in matters of sentencing. See Syl. pt. 12, State v. Broughton, 196 W.Va. 281, 470
S.E.2d 413 (1996) (‘[s]entences imposed by the trial court, if within statutory limits and if not
based on some [im]permissible factor, are not subject to appellate review’).” Head, 198 W.Va. at
301, 480 S.E.2d at 510.

        In his first assignment of error, petitioner argues that the circuit court erred in failing to
afford him credit for time previously served to also reduce his sentence for his forgery
conviction. As noted above, petitioner was given 448 days credit for time previously served for
his convictions of robbery and second degree robbery, the sentences for which were ordered to
be served concurrently. With regard to the forgery sentence, which was ordered to run
consecutively to the robbery sentences, the circuit court ordered that petitioner receive “a credit
of zero (0) days previously served.” Petitioner argues that

              [t]he Double Jeopardy and Equal Protection Clauses of the West Virginia
       Constitution require that time spent in jail before conviction shall be credited

       3
         In his March 26, 2014, motion, petitioner requested 466 days of credit for time served.
He did not explain how he arrived at this number; the Court surmises that he may have
erroneously added time served since his sentencing to the number of days served prior to the
imposition of his sentence.
                                                  3
       against all terms of incarceration to a correctional facility imposed in a criminal
       case as a punishment upon conviction when the underlying offense is bailable.”

Syl. Pt. 6, State v. McClain, 211 W.Va. 61, 561 S.E.2d 783 (2002). See State v. Eilola, 226
W.Va. 698, 702, 704 S.E.2d 698, 702 (2010) (reiterating that, despite language of West Virginia
Code 61-11-24 providing that one sentenced to confinement in jail or penitentiary “may, in the
discretion of the court or justice, be given credit” for time served, the granting of presentence
credit is, in fact, mandatory). Thus, it is petitioner’s contention that the circuit court clearly erred
in failing to give him credit for time previously served as to all three sentences.

        Notwithstanding petitioner’s argument to the contrary, we find no reversible error in the
circuit court’s sentencing order. In syllabus point seven of Eilola, this Court held as follows:

                For purposes of calculating a defendant’s parole eligibility date, credit for
       time served by the defendant prior to being sentenced should be applied to the
       aggregated minimum term of all the consecutive sentences combined. To the
       extent that language in State v. Middleton, 220 W.Va. 89, 640 S.E.2d 152 (2006),
       mandates that the period of time served during presentence incarceration be
       credited only against the aggregated maximum term of the consecutive sentences,
       it is hereby overruled.

226 W.Va. at 700, 704 S.E.2d at 700.

        The aggregated minimum term of petitioner’s consecutive sentences is eleven years.
Under Eilola, for purposes of calculating petitioner’s parole eligibility date, the circuit court
should have applied the 448 days of credit for time served to the aggregated minimum of the
consecutive sentences rather than to each of the concurrent sentences of robbery and second
degree robbery. Nonetheless, the effect of the sentencing order is the same. Even if the circuit
court had applied the credit for time served to the aggregated minimum term of the consecutive
sentences, it is clear that the credit of 448 days will be fully used on the robbery sentence, which
carries a minimum sentence of ten years. Thus, petitioner received all of the credit to which he is
entitled.4

        In his second assignment of error, petitioner argues that he received ineffective assistance
of counsel because his trial counsel failed to object to the modification of the original plea
agreement, which included terms and conditions more favorable to petitioner than those included
in the modified plea agreement. Petitioner further argues that the plea hearing was “hurried,”
“convoluted,” “interspersed with recesses” and “re-writes of the plea agreement[]” such that
there “existed an environment of ‘insecurity and confusion’” for petitioner, resulting in a
violation of his constitutional rights to effective assistance of counsel. Petitioner also contends

       4
          Although not explicitly set forth in his brief on appeal, the effect of petitioner’s
argument is that he believes that he is entitled to an additional 448 days of credit for time
previously served as against the consecutive forgery sentence, which would be an absurd
interpretation of Eilola.


                                                   4
that trial counsel was ineffective by agreeing not to re-try the charges of failure to provide notice
of registration changes, second offense, the first trial of which resulted in a mistrial. See n.2,
supra.5

        This Court has recognized that “it 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.” State v. Miller, 194 W.Va. 3, 14, 459 S.E.2d 114, 125 (1995) (quoting State v.
Triplett, 187 W.Va. 760, 771, 421 S.E.2d 511, 522 (1992)). As we explained in Miller, this is
due to the undeveloped state of the record:

       The 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.

194 W.Va. at 15, 459 S.E.2d at 126.

       However, future review of the issue of ineffective assistance of counsel is not necessarily
foreclosed; as this Court has previously held,

               [a]n incarcerated individual who raises an issue on direct appeal that was
       not the subject of a previous petition seeking post-conviction relief under West
       Virginia Code § 53–4A–1 (1967) (Repl.Vol.2000) is not prohibited from seeking
       habeas corpus relief following the issuance of an opinion by the West Virginia
       Supreme Court of Appeals where the decision on the appeal does not contain any
       ruling on the merits of the issue, as no final adjudication within the meaning of
       West Virginia Code § 53–4A–1 has resulted.

Syl. Pt. 4, State v. Frye, 221 W.Va. 154, 650 S.E.2d 574 (2006). In this case, the record is not
properly developed to permit review of the issue raised on its merits. Therefore, we decline to
address the merits of petitioner’s ineffective assistance of counsel claim. Relief in the form of
habeas corpus is not barred under the provisions of West Virginia Code § 53-4A-1 as the result
of petitioner’s having instituted a direct appeal raising the issue.

       In his final assignment of error, petitioner argues that the circuit court erred in failing to
schedule a hearing on his pro se motion to withdraw his plea agreement prior to the sentencing
hearing. He contends that he filed his motion to withdraw on November 13, 2013; that new

       5
          See Syl. Pt. 5, in part, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995) (holding that
“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.”).
                                                 5
counsel was appointed during a December 5, 2013, hearing, but that petitioner’s motion to
withdraw his plea was not addressed at the hearing; that new counsel failed to file a second
motion to withdraw the plea until the day before the sentencing hearing; and that the circuit court
did not address the motion until the February 7, 2014, sentencing hearing. Petitioner argues that
the circuit court should have afforded petitioner a separate hearing on the motion to withdraw his
guilty plea so that petitioner “could firmly address whether he did or did not desire to plea[d]
guilty or if he desired to withdraw the plea agreement.”

        Despite petitioner’s argument that he should have been afforded a hearing on his motion
to withdraw his guilty plea, it is clear from the record that, during the sentencing hearing,
petitioner unequivocally expressed his desire to withdraw his motion and proceed with
sentencing. Indeed, prior to the imposition of sentence by the circuit court, petitioner went so far
as to apologize to the court and victims for his actions. As this Court has previously made clear,
“[w]hen there is an opportunity to speak, silence may operate as a waiver of objections to error
and irregularities at the trial which, if seasonably made and presented, might have been regarded
as prejudicial.” State v. Grimmer, 162 W.Va. 588, 595, 251 S.E.2d 780, 785 (1979), overruled on
other grounds, State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980).This Court has further held
that “‘[a]s a general matter, a defendant may not assign as error, for the first time on direct
appeal, an issue that could have been presented initially for review by the trial court on a post-
trial motion.’ Syl. Pt. 2, State v. Salmons, 203 W.Va. 561, 509 S.E.2d 842 (1998).” Syl. Pt. 3,
State v. Jessie, 225 W.Va. 21, 689 S.E.2d 21 (2009). Petitioner expressly withdrew his motion to
withdraw his guilty plea thereby waiving, for purposes of appeal, the issue of whether the circuit
court erred in failing to conduct a hearing on the motion prior to sentencing.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.

ISSUED: September 18, 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




                                                 6
