                            STATE OF WEST VIRGINIA 

                          SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                      FILED
                                                                             October 19, 2018
vs.) No. 17-1008 (Summers County 17-F-38)                                    EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Brian Elisha Ballard,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner Brian Elisha Ballard, pro se, appeals the Circuit Court of Summers County’s
September 26, 2017, order sentencing him to not less than one nor more than three years of
incarceration following his conviction for driving while revoked for driving under the influence
(“DUI”), third offense. The State, by counsel Gordon L. Mowen II, filed a response. Petitioner
filed a supplemental appendix. On appeal, petitioner argues that he was erroneously denied his
right to a preliminary hearing and that the circuit court was biased at sentencing.

        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.

        Petitioner was arrested on April 20, 2017, for driving while revoked for DUI, third
offense; possession of a controlled substance; obstructing an officer; and giving false information
to a trooper. Petitioner made his initial appearance before a magistrate on this same date. A
preliminary hearing was scheduled, but did not take place due to petitioner’s waiver of his right
to a preliminary hearing within twenty days of his initial appearance. The preliminary hearing
was rescheduled for a later date, but the record reflects that petitioner’s counsel moved to
continue that rescheduled hearing due to a conflict. In further support of the motion to continue,
petitioner’s counsel cited petitioner’s prior waiver of the preliminary hearing timeframe.

        On July 18, 2017, and absent a preliminary hearing, petitioner was indicted on the
charges for which he was arrested, and the matter was transferred to the circuit court. At a
September 25, 2017, status conference, the parties announced that they had reached an
agreement whereby petitioner would plead no contest to the driving revoked for DUI, third
offense, charge in exchange for the dismissal of the remaining charges. Before accepting
petitioner’s plea, the court informed petitioner that, upon entry of his plea, he would give up
certain rights, including


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       [t]he right to have a jury trial to determine your guilt or innocence; and benefit of
       the presumption of innocence; the right against self-incrimination; the right to
       confront the people who accuse you of this; the right to defend yourself; the right
       to call witnesses on your own behalf; and the right to challenge any violation of
       any legal right[.]

Petitioner indicated that he understood that he would be waiving these rights and, nonetheless,
wished to enter the no contest plea.

        The circuit court accepted the parties’ agreement and, after petitioner waived his right to
a presentence investigation report, sentenced him to not less than one nor more than three years
of incarceration. The court further ordered that this sentence run concurrently with a sentence
imposed in Monroe County, West Virginia, but with an effective sentencing date of the date of
the hearing, September 25, 2017. These rulings were memorialized in the court’s order dated
September 26, 2017, and it is from this order that petitioner appeals.

        On appeal, petitioner argues that he was denied his right to a preliminary hearing.
Petitioner states that he executed his preliminary hearing timeframe waiver one week after the
time for holding a preliminary hearing expired, and he further notes that he waived only the
timeframe, and not his right to the hearing altogether. Petitioner also challenges his sentence on
the ground that the sentencing judge “cannot make a[n] unbiased sentenc[e].” In support,
petitioner states only that the sentencing judge was the same judge who sentenced him in another
matter.1

         This Court reviews sentencing orders “under a deferential abuse of discretion standard,
unless the order violates statutory or constitutional commands.” Syl. Pt. 1, in part, State v.
Adams, 211 W.Va. 231, 565 S.E.2d 353 (2002). We have also held that “[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.” Syl. Pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504
(1982).

        Petitioner’s first assignment of error concerning the preliminary hearing is without merit.
We have long held that “[a] preliminary hearing in a criminal case is not constitutionally
required.” Syl. Pt. 1, State ex rel. Rowe v. Ferguson, 165 W.Va. 183, 268 S.E.2d 45 (1980).
Further, if a defendant is indicted before a preliminary hearing can be held, a preliminary hearing
is not required. Id. at 192, 268 S.E.2d at 49; see also W.Va. R. Crim. P. 5(c) (“[T]he preliminary


       1
         Petitioner also asserts that “the arresting officer in my Summers County case was
testifying in Monroe County in front of [the sentencing judge] at my bond revocation hearing.”
Petitioner fails to explain the alleged significance of this. In any event, the record reflects that the
arresting officer did not testify at sentencing, nor was the officer even mentioned. Accordingly,
we decline to address this alleged error. See State, Dep’t of Health and Human Res., Child
Advocate Office ex rel. Robert Michael B. v. Robert Morris N., 195 W.Va. 759, 765, 466 S.E.2d
827, 833 (1995) (“[A] skeletal ‘argument,’ really nothing more than an assertion, does not
preserve a claim[.]”).


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examination shall not be held if the defendant is indicted or if an information against the
defendant is filed in circuit court before the date set for the preliminary examination.”). This is so
because, when “the grand jury makes the probable cause determination necessary for holding the
defendant over for trial, the magistrate no longer needs to address that issue.” State v. Davis, 236
W.Va. 550, 556, 782 S.E.2d 423, 429 (2015).

        Moreover, petitioner acknowledged that he gave up certain rights, including his “right to
challenge any violation of any legal right[,]” upon entry of his no contest plea. By “entering a
plea of guilty [a defendant] waives all pre-trial defects with regard to his arrest, the gathering of
evidence, prior confessions, etc., and further, . . . he waives all non-jurisdictional defects in the
criminal proceeding.”2 Call v. McKenzie, 159 W.Va. 191, 198, 220 S.E.2d 665, 671 (1975)
(citations omitted). Therefore, even assuming some error with respect to the failure to hold a
preliminary hearing, petitioner waived the right to challenge such error upon entry of his plea.

        Finally, petitioner’s assertion that the circuit court was biased at sentencing is also
without merit. Petitioner’s sentence is within statutory limits. See W.Va. Code § 17B-4-3(b).
Accordingly, absent identification of an impermissible factor, his sentence is not subject to
appellate review. Goodnight, 169 W.Va. at 366, 287 S.E.2d at 505, Syl. Pt. 4. Because petitioner
offers nothing more than the unsupported assertion that the circuit court was biased at
sentencing, he has failed to identify any impermissible factor, and his sentence is not subject to
review.

       For the foregoing reasons, the circuit court’s September 26, 2017, sentencing order is
hereby affirmed.

                                                                                           Affirmed.

ISSUED: October 19, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Paul T. Farrell sitting by temporary assignment
Justice Tim Armstead
Justice Evan H. Jenkins

Justice Allen H. Loughry II suspended and therefore not participating




       2
        The consequences of entering a no contest plea are, in effect, the same as those
following entry of a guilty plea. See Humphries v. Detch, 227 W.Va. 627, 635, 712 S.E.2d 795,
803 (2011) (citation omitted).
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