                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                       FILED
                                                                               June 16, 2017
vs) No. 16-0595 (Kanawha County 16-F-151)                                      RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Brian Parks,

Defendant Below, Petitioner



                               MEMORANDUM DECISION
       Petitioner Brian Parks, by counsel C. Joan Parker, appeals the Circuit Court of Kanawha
County’s May 27, 2016, order sentencing him to a term of incarceration of fifty years for his
conviction of one count of first-degree robbery. The State of West Virginia, by counsel Gordon
L. Mowen, II, filed a response. On appeal, petitioner argues that the circuit court erred when it
denied his motion to withdraw his guilty plea.

        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 September of 2015, petitioner and his co-defendants forcibly entered the victim’s
apartment and robbed him of money and drugs. During the commission of the robbery, the
victim was physically assaulted and later died of his injuries. Subsequently, in March of 2016,
petitioner was indicted on one felony count of first-degree robbery and one felony count of first-
degree murder.

        In April of 2015, following plea negotiations, the State extended a binding plea offer to
petitioner whereby he would plead guilty to one felony count of first-degree robbery and the
State agreed to dismiss the remaining felony count of first-degree murder. For this crime,
petitioner would be sentenced to a determinate term of fifty years of incarceration. Additionally,
the plea itself was entered into pursuant to Rule 11(e)(1)(c) of the West Virginia Rules of
Criminal Procedure.1


       1
           Pursuant to Rule 11(e)(1)(c) of the West Virginia Rules of Criminal Procedure


                                                                                  (continued . . . )
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        Petitioner entered his guilty plea of guilty on May 6, 2016. During the plea hearing, the
circuit court engaged petitioner in a colloquy to determine whether his guilty plea was “freely,
intelligently, and voluntarily entered into.” Petitioner provided the following factual basis for the
plea: he assisted his co-defendants in entering the victim’s apartment, beating the victim, and
taking money and drugs from the victim’s apartment. At the close of the hearing, the circuit court
accepted the plea agreement. On May 25, 2016, petitioner filed a motion to withdraw his guilty
plea. Petitioner argued that he changed his mind regarding his guilty plea, made the “wrong
decision under the pressure of trial preparation,” had no previous criminal record, and had a
“potential defense” to the first-degree robbery charge. On May 26, 2016, the circuit court held a
sentencing hearing wherein it denied petitioner’s motion to withdraw his guilty plea; petitioner
did not testify at the sentencing hearing. The circuit court concluded that petitioner failed to
provide any additional evidence in support of his motion to withdraw and that petitioner’s age,
criminal record, and role in the crime had been addressed previously at the plea hearing. The
circuit court sentenced petitioner to a fifty-year term of incarceration by order entered on May
27, 2016. It is from this order that petitioner appeals.

       We have previously held that

               [n]otwithstanding 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).

        On appeal, petitioner argues that pleading guilty to first-degree robbery was the wrong
decision. He contends that he should be permitted to withdraw his guilty plea because he was
young, had no criminal history, and had a potential defense to the crime. We disagree. Rule 32(e)
of the West Virginia Rule of Criminal Procedure provides that “[i]f a motion for withdrawal of a
plea of guilty . . . is made before sentence is imposed, the court may permit withdrawal of the
plea if the defendant shows any fair and just reason.” We have also previously articulated the
factors for the circuit court to consider when a defendant moves to withdraw a guilty plea before
sentencing:

               A mere declaration of innocence does not entitle a defendant to withdraw


       [t]he attorney for the state and the attorney for the defendant . . . may engage in
       discussions with a view toward reaching an agreement that, upon the entering of
       a plea of guilty . . . to a charged offense or to a lesser or related offense, the
       attorney for the state will do any of the following: Agree that a specific sentence
       is the appropriate disposition of the case.



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       his guilty plea. The general rule is that in the exercise of its discretion to permit
       withdrawal of a guilty plea before sentencing based on a defendant’s assertion of
       innocence, a trial court should consider the length of time between the entry of the
       guilty plea and the filing of the motion to withdraw, why the grounds for
       withdrawal were not presented to the court at an earlier point in the proceedings,
       whether the defendant maintained his innocence throughout the plea proceedings,
       whether the State’s case will be prejudiced, and whether the defendant has
       articulated some ground in support of his claim of innocence.

Id. at 176, 394 S.E.2d at 871. Here, petitioner based his motion, in part, upon his alleged
innocence, claiming he had a “potential defense” to the crime charged. However, upon a review
of the record, this Court finds that the circuit court did not abuse its discretion in this matter. The
record in this proceeding supports the circuit court’s order denying petitioner’s motion. Contrary
to petitioner’s argument that he had a potential defense to the first-degree robbery, petitioner
admitted in his plea colloquy that he participated in the robbery. Further, petitioner offered no
additional evidence in support of his innocence or his motion. The circuit court advised
petitioner that he must articulate a fair and just reason in order for it to consider his motion to
withdraw. However, it is clear from the record that petitioner chose not to testify and failed to
articulate any further basis for his motion. Accordingly, the circuit court correctly found that,
absent some additional evidence, petitioner made a fully-informed decision to plead guilty.
Therefore, petitioner failed to provide a fair and just reason for his plea to be withdrawn.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
May 27, 2016, order is hereby affirmed.


                                                                                            Affirmed.

ISSUED: June 16, 2017


CONCURRED IN BY:

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




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