                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS



State of West Virginia,                                                               FILED
Plaintiff Below, Respondent                                                          March 12, 2013
                                                                                 RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
vs) No. 11-1780 (Mineral County 10-F-155)                                          OF WEST VIRGINIA


Christopher J. Kroner,
Defendant Below, Petitioner


                                  MEMORANDUM DECISION

         Petitioner’s appeal, by counsel Nicholas T. James, arises from the Circuit Court of
Mineral County, wherein he was sentenced to a term of incarceration of ten to twenty years for
one count of sexual abuse by a custodian and a term of incarceration of one to five years for child
abuse causing injury, said sentences to run consecutively. That order was entered on November
18, 2011. The State, by counsel Laura Young, has filed its response, to which petitioner has filed
a reply.

       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.

        On September 8, 2010, petitioner was indicted by grand jury on the following counts:
sexual assault in the first degree; incest; sexual abuse by a custodian/guardian or other person in a
position of trust; and, child abuse resulting in injury. Pursuant to a plea agreement, petitioner pled
no contest to one count of sexual abuse by a guardian and one count of child abuse resulting in
injury. The remaining counts were dismissed. A plea hearing was held on August 3, 2011, after
which petitioner was sentenced to a term of incarceration of ten to twenty years for sexual abuse
by a custodian and a term of incarceration of one to five years for child abuse resulting in injury,
said sentences to run consecutively.

        On appeal, petitioner alleges that he did not knowingly, intelligently, and voluntarily enter
into the plea. In support, petitioner argues that he thought he was entering a plea pursuant to
North Carolina v. Alford, 400 U.S. 25 (1970); that his attorney failed to argue for probation at
sentencing; that he was not properly evaluated by a psychiatrist in order to be eligible for
probation consideration; that the circuit court failed to thoroughly investigate his competency; and
that he was coerced into entering the plea agreement through threats of a longer sentence. In
response, the State argues that the petitioner received the appropriate evaluation in order to be

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considered for probation, and that petitioner was denied probation because of his prior criminal
record and the fact that he was not amenable to treatment. Further, the State argues that the record
demonstrates that petitioner was competent and fully understood the proceedings, and that his
remote prior head injury did not affect his competency to enter a plea. Lastly, the State argues that
petitioner was not threatened with additional incarceration, but was instead accurately informed of
the potential exposure he faced if he decided to contest all the charges at trial.

        “‘The Supreme Court of Appeals 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. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).” Syl. Pt. 1, State v. James, 227
W.Va. 407, 710 S.E.2d 98 (2011). Moreover, the Court has previously stated that,

       [i]n Call v. McKenzie, 159 W.Va. 191, 220 S.E.2d 665 (1975), we detailed the
       procedural safeguards to be undertaken on the record by the trial judge before
       accepting a defendant’s . . . plea, so that a reviewing court could determine that the
       defendant’s waiver of rights was voluntary, knowing, and intelligent.

State v. Neuman, 179 W.Va. 580, 584, 371 S.E.2d 77, 81 (1988).

        Here, the record reflects that the circuit court took the necessary steps to ensure that
petitioner’s no contest plea was freely, knowingly, and voluntarily made and that petitioner was
fully advised of all the rights he was giving up by pleading no contest. The record also reflects
that petitioner unequivocally informed the circuit court that he understood his rights; that he
wished to plead no contest to the crimes charged; and that no one had unduly influenced him to
plead. For these reasons, the Court finds that petitioner knowingly, freely, intelligently, and
voluntarily pled no contest to the charges of sexual abuse by a custodian and child abuse resulting
in injury.

        While petitioner argues that he thought he was entering an Alford plea, he cites to no
evidence in the record to support this assertion and the Court finds no merit in the argument.
Similarly, we find no merit in petitioner’s arguments related to his psychiatric evaluation and
counsel’s attempts to obtain probation. The record clearly shows that the circuit court and all
parties agreed to have petitioner evaluated by a psychologist because of the lack of psychiatrists
in the area, and such evaluation did not bar petitioner from being eligible for probation. Further,
the record shows that at the sentencing hearing, petitioner’s counsel specifically asked the circuit
court if probation would be an option, to which the circuit court stated that probation would be
“out of the question in this particular case.” As such, the fact that petitioner did not receive
probation does not render his plea involuntary. Lastly, the Court finds no merit in petitioner’s
argument that he was “threatened with [thirty-five] to life to sign a plea bargain.” As noted by the
State, this was simply an accurate reflection of the possible sentence petitioner faced if he was
tried on all four counts with which he was originally indicted.

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



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                                        Affirmed.

ISSUED: March 12, 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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