                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia, Plaintiff Below,                                            FILED
Respondent                                                                       June 15, 2015
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
vs) No. 14-0755 (Hampshire County 11-F-11 & 13-F-55)                            OF WEST VIRGINIA


Robbie Ray Whetzel, Defendant Below,
Petitioner


                              MEMORANDUM DECISION
        Petitioner Robbie Ray Whetzel, by counsel Lawrence E. Sherman Jr., appeals the Circuit
Court of Hampshire County’s June 13, 2014, sentencing order. The State, by counsel Shannon
Frederick Kiser, filed a response. On appeal, petitioner alleges that the circuit court erred in
proceeding to sentencing in light of alleged prosecutorial misconduct, his involuntary plea, and
the ineffective assistance of his trial counsel.

        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 January of 2011, petitioner was indicted on one count of breaking and entering in
violation of West Virginia Code § 61-3-12. However, before this charge was fully adjudicated,
petitioner was indicted on the following additional eight counts: two counts of delivery of a
controlled substance in violation of West Virginia Code § 60A-4-401(a); two counts of
conspiracy to deliver a controlled substance in violation of West Virginia Code § 61-10-31; two
counts of aiding and abetting the delivery of a controlled substance in violation of West Virginia
Code § 60A-4-401(a); and two counts of possession of a controlled substance, oxycodone, in
violation of West Virginia Code § 60A-4-401(c).

        Prior to trial on either indictment, the parties reached a non-binding, oral agreement
regarding petitioner’s plea to all charges. Petitioner’s counsel presented the terms of the plea
agreement to the circuit court at a March of 2014 plea hearing. Petitioner indicated that he would
request suspending all the felony sentences in favor of probation and the State would stand silent.
However, during the plea hearing, the State claimed that it never agreed to remain silent.
Following a bench conference and additional discussion between the parties, the parties then
presented a modified plea agreement to the circuit court. The terms of that agreement were that
the State would dismiss five counts from the eight-count indictment, and petitioner would plead
guilty to all the remaining underlying crimes, including the misdemeanors, with the stipulation

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that the sentences for convictions under the eight-count indictment run concurrent to one another
and consecutive to the single-count indictment. The parties did not, however, present to the
circuit court any term related to the State standing silent or recommending a sentence during the
upcoming sentencing hearing. The circuit court then accepted the modified plea agreement.

        In April of 2014, the circuit court ultimately sentenced petitioner to two terms of
incarceration of one to fifteen years for his conviction of two counts of delivery of a controlled
substance, a term of incarceration of one to fifteen years for his conviction of aiding and abetting
the delivery of a controlled substance, and a term of incarceration of one to ten years for his
conviction of breaking and entering. The circuit court ordered that petitioner’s sentences for
delivery of a controlled substance and aiding and abetting the same would run concurrently to
one another but consecutively to his sentence for breaking and entering. After imposing
sentence, the circuit court directed that petitioner be placed in a residential substance abuse
treatment program called R-SAT at Pruntytown Correctional Facility. During the sentencing
hearing, the State did not stand silent, and instead argued for a sentence differing from what
petitioner’s trial counsel requested.

        In June of 2014, petitioner filed a motion for reconsideration, which the circuit court
denied. Thereafter, petitioner’s trial counsel informed the circuit court of a conflict in his
representation and the circuit court appointed current appellate counsel to represent petitioner.
Petitioner’s new counsel then filed an amended and renewed motion for reconsideration in
September of 2014. The motion cited petitioner’s lack of understanding as to the plea
agreement’s terms and the State’s failure to abide by the plea agreement. This motion included
correspondence between petitioner’s prior counsel and the State, as well as an affidavit from
prior counsel. The circuit court held that motion in abeyance pending petitioner’s completion of
the R-SAT program. It is from this order that petitioner appeals.

      Upon our review, we find that the circuit court did not err in proceeding to sentencing
upon petitioner’s guilty plea. In addressing allegations that the State breached a plea agreement,
we have previously applied the following plain error standard of review:

               “To trigger application of the ‘plain error’ doctrine, there must be (1) an
       error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects
       the fairness, integrity, or public reputation of the judicial proceedings.’ Syl. pt. 7,
       State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).”

Syl. Pt. 2, State v. Myers, 204 W.Va. 449, 513 S.E.2d 676 (1998). Moreover, in regard to
petitioner’s allegation that he received ineffective assistance of trial counsel, we note that
traditionally, an ineffective assistance of counsel claim is not cognizable on direct appeal
because of the insufficiency of the record from the criminal trial.

       We have urged counsel repeatedly to think of the consequences of raising this
       issue on direct appeal. Claims that an attorney was ineffective involve inquiries
       into motivation behind an attorney’s trial strategies. See State v. Miller, 194
       W.Va. 3, 459 S.E.2d 114 (1995). Without such facts trial counsel’s alleged lapses
       or errors will be presumed tactical moves, flawed only in hindsight. What is more,

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       in the event a defendant pursues his claim on direct appeal and it is rejected, our
       decision will be binding on the circuit court through the law of the case doctrine,
       ‘leaving [defendant] with the unenviable task of convincing the [circuit court]
       judge that he should disregard our previous ruling.’ U.S. v. South, 28 F.3d 619,
       629 (7th Cir.1994). That is why in Miller we suggested that a defendant who
       presents an ineffective assistance claim on direct appeal has little to gain and
       everything to lose.

State ex rel. Daniel v. Legursky, 195 W.Va. 314, 317 n.1, 465 S.E.2d 416, 419 n.1 (1995). As
such, we decline to address petitioner’s claims of ineffective assistance of counsel on direct
appeal because the record is insufficient. This claim would more appropriately be raised in a
petition for writ of habeas corpus.

        As to petitioner’s remaining allegations, we find no evidence to support prosecutorial
misconduct or that petitioner’s plea was involuntary. In support of his argument that his plea was
involuntary, petitioner alleges that he was confused and ignorant as to the terms of the plea
agreement. Our review of the record clearly shows initial confusion as to the terms of the plea
agreement at the plea hearing, especially due to the fact that the agreement was never reduced to
writing. However, an extensive discussion was undertaken to agree on specific terms, at which
point the plea hearing resumed and petitioner agreed to the specific terms as set forth by the
circuit court. In fact, once the circuit court set forth the specific terms of the agreement and the
charges to which petitioner would plead guilty, petitioner affirmatively stated that he understood
those terms and that the agreement, as stated by the circuit court, was correct. It was only after
the circuit court clarified the terms of the agreement and petitioner acknowledged these terms
were correct that the circuit court engaged petitioner in his plea colloquy and accepted his guilty
plea.

        Petitioner, however, claims that it wasn’t until sentencing that the State breached the plea
agreement by recommending a sentence as opposed to standing silent. According to petitioner,
the State’s agreement to stand silent was important in his acceptance of the plea agreement and
he would not have accepted it otherwise. However, the Court finds that a requirement for the
State to stand silent at sentencing was never established as a term of the plea agreement. In
discussing plea agreements, we have stated that “[p]lea agreements are a form of contracts,” but
that “their unique nature requires ordinary contract principles to be supplemented with a concern
that the bargaining and execution process does not violate the defendant’s right to fundamental
fairness under the due process clause.” Myers at 458, 513 S.E.2d at 685. As such, we note that
“‘[a] meeting of the minds of the parties is a sine qua non of all contracts.’ Syl. pt. 1, Martin v.
Ewing, 112 W.Va. 332, 164 S.E. 859 (1932).” Syl. Pt. 2, Triad Energy Corp. of W.Va., Inc. v.
Renner, 215 W.Va. 573, 600 S.E.2d 285 (2004). Here, it is clear that such a meeting of the minds
in regard to the State’s alleged agreement to stand silent at sentencing did not occur. In both
petitioner’s initial plea offer to the State and in the agreed conviction order, no mention is made
of the State remaining silent at sentencing. In fact, the agreed conviction order contains
recommendations from the State as to petitioner’s potential sentence. As such, we cannot find
that the plea agreement herein was breached.




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        Further, because petitioner alleges that his plea was involuntary because he was unaware
the State would not stand silent, we also find no error. Simply put, petitioner had no reasonable
expectation that the State would stand silent at sentencing such that we could find reversible
error. Moreover, petitioner’s claim of prosecutorial misconduct is based on an alleged willful
breach of the plea agreement by the State. Again, since it is clear that the parties never reached
an agreement whereby the State would stand silent at sentencing, we cannot find that the
prosecuting attorney committed misconduct of any kind in recommending a sentence below.

       For the foregoing reasons, the circuit court’s June 13, 2014, sentencing order is hereby
affirmed.


                                                                                        Affirmed.

ISSUED: June 15, 2015

CONCURRED IN BY:

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

DISSENTING:

Justice Robin Jean Davis




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