                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                         FILED
                                                                                    June 10, 2013
                                                                               RORY L. PERRY II, CLERK
vs) No. 12-1151 (Mineral County 10-F-126)                                    SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

Kelly M. Bradley,
Defendant Below, Petitioner


                                 MEMORANDUM DECISION

       Petitioner’s appeal, by counsel Agnieszka Collins, arises from the Circuit Court of Mineral
County, wherein she was sentenced to a definite term of incarceration of eight years following her
guilty plea to second degree arson by order entered on August 20, 2012. The State of West
Virginia, by counsel Andrew Mendelson, has filed its response.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        In September of 2010, petitioner was indicted on three counts of second degree arson, one
count of burning insured property, two counts of causing injury during an arson, and one count of
conspiracy. This indictment resulted from an incident in which a fire was started in the Polish
Pines Restaurant and Bar, owned by petitioner’s husband. The fire significantly damaged the
Wee-Care Daycare and Citi Financial, which were located in the same strip mall. The fire also
caused approximately one million dollars in damages and two firefighters received minor injuries.
Prior to petitioner accepting an Alford plea, the State failed to disclose information regarding
money found inside poker machines that were located inside the restaurant. Petitioner entered into
an Alford plea agreement without this information. The circuit court accepted petitioner’s Alford
plea and ordered a presentence investigation. Following testimony from several witnesses,
including testimony regarding the previously unknown poker machines, petitioner was sentenced
to a definite term of incarceration of eight years.

        On appeal, petitioner alleges the circuit court erred in proceeding with her sentencing after
exculpatory testimony was offered. Petitioner argues that the State failed to comply with the
circuit court’s March 23, 2012, discovery order related to the money found inside the poker
machines, and as result, petitioner accepted the Alford plea upon incomplete information.
Petitioner argues this new evidence goes directly against the State’s assertion that petitioner was

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in dire financial straits and was selling everything of value before the fire because she had access
to the poker machine money boxes. The State argues that petitioner is attempting to frame the
issue under plain error to escape the consequences of her decision to plead guilty. The State also
argues that petitioner has waived her right to raise this plain error argument.

        “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). Moreover, this Court has stated:

       Under the “plain error” doctrine, “waiver” of error must be distinguished from
       “forfeiture” of a right. A deviation from a rule of law is error unless there is a
       waiver. When there has been a knowing and intentional relinquishment or
       abandonment of a known right, there is no error and the inquiry as to the effect of a
       deviation from the rule of law need not be determined. By contrast, mere
       forfeiture of a right-the failure to make timely assertion of the right-does not
       extinguish the error. In such a circumstance, it is necessary to continue the inquiry
       and to determine whether the error is “plain.” To be “plain,” the error must be
       “clear” or “obvious.”

Syl. Pt. 8, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). Applying this standard, the Court
concludes that there was a waiver of any alleged error in the circuit court proceeding in
petitioner’s sentencing hearing. A review of the record clearly shows that the circuit court granted
petitioner a recess to consult with counsel after learning that certain information was not properly
disclosed. The record also shows that the circuit court inquired as to whether petitioner wished to
reconsider her Alford plea in connection with the new information, her desire to continue with the
proceedings, and if petitioner had enough time to discuss her options with counsel. In response to
the court’s inquiry, petitioner, through her counsel stated that she “desire[d] to proceed with the
proceedings” and “not withdraw.” Counsel for petitioner also inquired if she had enough time to
discuss the issue and if her decision was informed, to which petitioner responded “[y]es.”

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


                                                                                             Affirmed.

ISSUED: June 10, 2013

CONCURRED IN BY:

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

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