                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent

vs) No. 15-0773 (Greenbrier County 11-F-62 & 12-F-125)

Dwayne K.,

Defendant Below, Petitioner



                               MEMORANDUM DECISION
        Petitioner Dwayne K., by counsel Paul S. Detch, appeals the Circuit Court of Greenbrier
County’s July 10, 2015, order sentencing him to a prison term of five to fifteen years in addition
to a fine and terms of sex-offender registration and supervision upon his release from prison.1
The State, by counsel David A. Stackpole, filed a response and a supplemental appendix.
Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in denying (1) his
motion to withdraw his guilty plea, and (2) his motion to dismiss based on an alleged violation of
his speedy trial rights under the West Virginia Constitution.

        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 June of 2011, petitioner was indicted on the following six crimes: two counts of first-
degree sexual assault; two counts of sexual abuse by a parent, guardian, or custodian; and two
counts of incest (case no. 11-F-62). According to the indictment, petitioner committed these
offenses against his minor daughter between 2004 and 2008. Petitioner was appointed a public
defender as counsel of record, and the matter was assigned to Judge James J. Rowe. At his
subsequent arraignment, petitioner’s trial was scheduled for September of 2011.

       Between August of 2011 and June of 2012, petitioner requested at least three
continuances that caused his trial to be delayed. In June of 2012, petitioner was indicted on the
following two additional crimes allegedly occurring in April of 2011: one count of first-degree

       1
         Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).
                                                      1


sexual abuse and one count of sexual abuse by a parent, guardian, or custodian (case no. 12-F­
125). The victim in 12-F-125 was identified as an eight-year-old male child. The matter was
assigned to Judge Joseph C. Pomponio Jr., and trial was scheduled for September of 2012.
Although somewhat unclear from the record on appeal, it appears that a second public defender
was appointed to represent petitioner in 12-F-125.

        In late June of 2012, petitioner’s public defender in 11-F-62 filed a motion to withdraw as
counsel. Judge Rowe granted that motion and appointed Attorney Kristopher Faerber to
represent petitioner in 11-F-62 only. Following another continuance by petitioner’s new counsel,
the circuit court held another pre-trial hearing in 11-F-62 in September of 2012. At that hearing,
the circuit court granted petitioner’s motion to transfer 11-F-62 to Judge Pomponio so that a
single judge could preside over both criminal cases. On the same date that the cases were
transferred, Judge Pomponio signed an “agreed order continuing matters” in both cases—11-F­
62 and 12-F-125. Judge Pomponio’s order also relieved the public defender’s office and
appointed Attorney Faerber as counsel for both cases.2

       Petitioner again delayed his trial date by requesting two more continuances in May of
2013 and January of 2014, respectively. In a motion filed days prior to his April trial date, he
argued that he could not “adequately prepare a defense” based on the indictment in 11-F-62.

        The circuit court held a hearing in this matter in August of 2014. At that hearing,
petitioner’s counsel informed the circuit court that petitioner had entered into a plea agreement
with the State by which he would plead guilty to one count of incest and the remaining counts in
11-F-62 and 12-F-125 would be dismissed; the circuit court was not bound to any agreed
sentencing terms; the parties were free to argue for an appropriate sentence; and the State would
recommend that he receive all of his time served on bond since 2011 as credit for time served.

         However, during a lengthy plea colloquy, petitioner changed his mind about entering the
plea and chose to go to trial. Respecting petitioner’s choice, the parties then took up pre-trial
matters in preparation for trial. For the purpose of assessing the availability of its witnesses for
trial, the State requested a short recess, which the circuit court granted. Following that short
recess, petitioner informed the circuit court that he had, again, changed his mind and now wished
to proceed with the plea agreement. The circuit court verified that petitioner wished to proceed
with the guilty plea, and petitioner stated clearly on the record, “[y]es, sir.” The circuit court
performed a second plea colloquy with petitioner and, again, expressly informed petitioner of the
specific rights he would waive by pleading guilty. In addition to many other discussions of
petitioner’s rights at the plea hearing, the circuit court and petitioner had the following
exchanges:

       COURT: Do you think that your lawyer, or anyone else, is making you plead guilty?

       2
        Although not fully explained in the record on appeal, another attorney, Douglas
Arbuckle, was appointed (apparently as co-counsel to Attorney Faerber, who remained lead
counsel) in 12-F-125 in October of 2012. Michael R. Whitt was later appointed as co-counsel
(with Attorney Faerber) in July of 2014 for the purpose of taking petitioner’s case to trial.


                                                     2


DEFENDANT: No.

       ....

COURT: Do you understand that by entering a plea of guilty, you’re waiving or
giving up certain constitutional rights that you may have?

DEFENDANT: Yes, sir.

       ....

COURT: Do you understand that if you plead guilty, that there will not be a trial,

of any kind, and that you would be giving up your right to a trial?


DEFENDANT: Yes, sir.


COURT: Do you further understand that by entering a plea of guilty, you would

be waiving or giving up all of the pre-trial defects with regard to your arrest, the
gathering of evidence, any prior confessions, and, further, if you enter a plea of
guilty, you waive all non-jurisdictional defects in the criminal proceeding against
you?

DEFENDANT: Yes, sir.

       ....

COURT: [Following a reading in open court of count three of the indictment] Mr.
K[.], with regard to [c]ount 3 of the indictment, charging you with the offense of

incest, how do you plead?


DEFENDANT: Guilty.


       ....

COURT: [Following petitioner’s signing of the written plea agreement in open
court] Did you sign this [written plea agreement], freely and voluntarily?

DEFENDANT: Yes.

       ....

COURT: And you have freely and voluntarily tendered, both, your oral plea of
guilty and your written plea of guilty to the [c]ourt. Is that correct?

DEFENDANT: Yes.

                                            3


Petitioner then expressed his satisfaction with his attorneys and stated that all of his answers to
the circuit court’s questions were true. Petitioner was informed of his maximum prison exposure
under the plea agreement, and he verified that his attorneys had reviewed with him the
consequences of his plea agreement prior to the hearing, including the rights he would waive by
pleading guilty. Attorney Whitt stated that he had witnessed Attorney Faerber go “over all of the
rights, constitutional and statutory rights, that [petitioner would] be waiving and giving up by
entering his guilty plea[.]” Further, Attorney Faerber advised the circuit court that “despite
[petitioner’s] inability to read, he certainly can comprehend, and I’ve always felt that he fully
understands what I’m talking to him about.”3 Following this lengthy proceeding, the circuit court
accepted petitioner’s plea of guilty to one count of incest and dismissed the remaining counts in
both indictments. A sentencing hearing was scheduled for late October of 2014.

        In October of 2014, prior to the scheduled sentencing hearing, petitioner retained his
current counsel, Attorney Detch, to represent him in this matter. Immediately thereafter,
petitioner filed a motion to withdraw his plea of guilty. In that motion, petitioner argued that his
prior attorneys improperly advised him; that his prior attorneys failed to properly investigate the
charges against him; that he maintained his innocence; and that justice required the withdrawal
of his guilty plea. The sentencing hearing was continued.

        In November of 2014, the circuit court held a hearing on petitioner’s motion to withdraw
his plea. Petitioner testified as to his innocence and his claim that he was given no alternative but
to plead guilty. Petitioner’s former counsel, Messrs. Faerber and Whitt, also testified at that
hearing in support of their advocacy and representation of petitioner. In late November of 2014,
petitioner filed a brief in support of his motion to withdraw the guilty plea, and, in December of
2014, the State filed a brief in opposition to petitioner’s motion to withdraw the guilty plea.

        In January of 2015, petitioner filed a motion to dismiss that raised for the first time his
claim that the circuit court violated his speedy trial rights under the West Virginia Constitution,
as those rights are defined by West Virginia Code § 62-3-21 (the “three-term rule”). In that
motion, petitioner argued that seven terms of court passed without any excusable reason as set
forth in the three-term rule statute.

        In February of 2015, the circuit court held a sentencing hearing. At the conclusion of that
hearing, the circuit court denied petitioner’s motion to withdraw his guilty plea noting that it was
clear from petitioner’s statements at the plea hearing that his plea was entered into voluntarily,
knowingly, and intelligently. As to sentencing, in addition to sex offender registry and a period
of supervised release, the circuit court sentenced petitioner to prison for five to fifteen years with
credit for time served in the amount of thirty-four days and fined him $1,000. It is from the
circuit court’s sentencing order, entered on July 10, 2015, that petitioner now appeals.

       On appeal, petitioner first argues that the circuit court erred in denying his motion to
withdraw his plea, which he filed before sentencing. This Court has held:



       3
           Petitioner’s illiteracy was previously noted during the hearing.
                                                       4


               Notwithstanding 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). A circuit court abuses its
discretion “if it bases its ruling on an erroneous assessment of the evidence or an erroneous view
of the law.” Cox v. State, 194 W.Va. 210, 218 n. 3, 460 S.E .2d 25, 33 n. 3 (1995).

       Rule 32(e) of the West Virginia Rules of Criminal Procedure provides that “the [circuit]
court may permit withdrawal of the plea if the defendant shows any fair and just reason.” We
have also held that the word “may” is permissive and connotes discretion. See Gebr. Eickhoff
Maschinenfabrik Und Eisengieberei mbH v. Starcher, 174 W.Va. 618, 626 n. 12, 328 S.E.2d
492, 500 n. 12 (1985) (stating that “[a]n elementary principle of statutory construction is that the
word ‘may’ is inherently permissive in nature and connotes discretion.”).

        In this case, petitioner asserts that he was entitled to have his guilty plea withdrawn
because he has maintained his innocence throughout these proceedings and because he was
coerced into pleading guilty when his attorneys gave him no alternative. We disagree. It is
evident from the plea hearing that petitioner admitted his guilt after a lengthy and exhausting
colloquy with the circuit court, which included a discussion of the rights he would waive by
pleading guilty and the potential prison term and other consequences he faced. Indeed, the circuit
court conducted not one, but two plea colloquies with petitioner. Petitioner was also informed,
several times, that he had the right to proceed to trial, which he clearly understood given his
vacillation during the plea hearing. Based upon our review of the record herein and our holding
in Call v. McKenzie, 159 W.Va. 191, 220 S.E.2d 665 (1975), we find that petitioner knowingly,
voluntarily, and intelligently decided to enter the guilty plea.4

       4
         In Syllabus Point 3 of Call v. McKenzie, 159 W.Va. at 191, 220 S.E.2d at 665, this Court
held as follows:

               When a criminal defendant proposes to enter a plea of guilty, the trial
       judge should interrogate such defendant on the record with regard to his
       intelligent understanding of the following rights, some of which he will waive by
       pleading guilty: 1) the right to retain counsel of his choice, and if indigent, the
       right to court appointed counsel; 2) the right to consult with counsel and have
       counsel prepare the defense; 3) the right to a public trial by an impartial jury of
       twelve persons; 4) the right to have the State prove its case beyond a reasonable
       doubt and the right of the defendant to stand mute during the proceedings; 5) the
       right to confront and cross-examine his accusers; 6) the right to present witnesses
       in his own defense and to testify himself in his own defense; 7) the right to appeal
       the conviction for any errors of law; 8) the right to move to suppress illegally
       obtained evidence and illegally obtained confessions; and, 9) the right to
       challenge in the trial court and on appeal all pre-trial proceedings.
                                                     5


         Further, as noted above, petitioner stated that he was satisfied with his attorneys, who
appeared ready to proceed to trial but who counseled petitioner that the guilty plea was in his
best interests. Petitioner also told the circuit court at the plea hearing that his answers during the
plea colloquy were true. Following a thorough review of the record on appeal, the parties’
arguments, and all pertinent legal authority, we find no error in the circuit court’s denial of
petitioner’s motion to withdraw his guilty plea because no fair and just reason exists to support
such a withdrawal. Given petitioner’s admissions during the plea hearing and his failure to
demonstrate a just and fair reason to withdraw his guilty plea, we find no merit to petitioner’s
first assignment of error.

        Petitioner next argues that the circuit court erred in denying his motion to dismiss the
indictment because he claims his right to a speedy trial under the West Virginia Constitution was
violated when he was not tried within three terms of court, as required by West Virginia Code §
62-3-21. In reviewing challenges to a circuit court’s order regarding a motion to dismiss an
indictment, we employ the following standard of review:

               This Court’s standard of review concerning a motion to dismiss an
       indictment is, generally, de novo. However, in addition to the de novo standard,
       where the circuit court conducts an evidentiary hearing upon the motion, this
       Court’s “clearly erroneous” standard of review is invoked concerning the circuit
       court’s findings of fact.

Syl. Pt. 1, State v. Grimes, 226 W.Va. 411, 701 S.E.2d 449 (2009). Our review of alleged speedy
trial violations under the West Virginia Constitution is further guided by Syllabus Point 2 of
State v. Carrico, 189 W.Va. 40, 427 S.E.2d 474 (1993): “‘It is the three-term rule, W.Va. Code
[§] 62-3-21 [1959], which constitutes the legislative pronouncement of our speedy trial standard
under Article III, Section 14 of the West Virginia Constitution.’ Syl. Pt. 1, Good v. Handlan, 176
W.Va. 145, 342 S.E.2d 111 (1986).”

        We have also held that a “defendant waives significant constitutional rights by entering
into a plea agreement, such as . . . the right to a speedy trial.” State ex rel. Forbes v. Kaufman,
185 W.Va. 72, 77, 404 S.E.2d 763, 768 (1991); see also State v. Greene, 196 W.Va. 500, 505,
473 S.E.2d 921, 926 (1996) (stating that “[i]f any principle is well settled in this State, it is that,
in the absence of special circumstances, a guilty plea waives all antecedent constitutional and
statutory violations save those with jurisdictional consequences.”); Tollett v. Henderson, 411
U.S. 258 (1973) (stating that when criminal defendant openly in court admits he is guilty of
offense charged, “he may not thereafter raise independent claims relating to the deprivation of
constitutional rights that occurred prior to the entry of the guilty plea.”). Notably, once a criminal
defendant waives constitutional rights, “he cannot be heard to complain thereafter.” Call v.
Mckenzie, 159 W.Va. 191, 195-96, 220 S.E.2d 665, 669-70 (1975).

        Here, petitioner waived and forfeited his right to appeal the three-term rule issue by
failing to raise it prior to the entry of his guilty plea and by failing to enter a conditional guilty




                                                      6


plea that would have preserved the issue for appellate review.5 See State v. Legg, 207 W.Va. 686,
690 n. 7, 536 S.E.2d 110, 114 n. 7 (2000), relying on Justice Cleckley’s concurrence in State v.
Lilly, 194 W.Va. 595, 461 S.E.2d 101 (1995) (stating that “[w]hen a defendant unconditionally
and voluntarily pleads guilty to an offense, the defendant generally waives nonjurisdictional
objections to a circuit court's rulings, and therefore cannot appeal those questions to a higher
court.”). As petitioner waived his assertion of a speedy trial issue by pleading guilty
unconditionally, we decline to address the issue in this memorandum decision.

       For the foregoing reasons, the circuit court’s July 10, 2015, order is hereby affirmed.


                                                                                         Affirmed.

ISSUED:

CONCURRED IN BY:

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




       5
        Rule 11(a) of the West Virginia Rules of Criminal Procedure addresses pleas generally
and includes an express provision regarding conditional guilty pleas, which reads as follows:

       (2) Conditional pleas. With the approval of the court and the consent of the state,
       a defendant may enter a conditional plea of guilty or nolo contendere, reserving in
       writing the right, on appeal from the judgment, to review of the adverse
       determination of any specified pretrial motion. A defendant who prevails on
       appeal shall be allowed to withdraw the plea.



                                                    7


