                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,                                                            FILED
                                                                                   June 28, 2013
Plaintiff Below, Respondent                                                   RORY L. PERRY II, CLERK

                                                                            SUPREME COURT OF APPEALS

                                                                                OF WEST VIRGINIA

vs) No. 12-0814 (Kanawha County 12-F-227)

Gabriel Heater,

Defendant Below, Petitioner



                              MEMORANDUM DECISION

        Petitioner Gabriel Heater, by counsel Duane Rosenlieb Jr., appeals the Circuit Court of
Kanawha County’s “Sentencing Order” entered on May 29, 2012, which sentenced petitioner to
a term of incarceration of not less than one year nor more than fifteen years for burglary by
breaking and entering and a concurrent term of one year for brandishing a deadly weapon. The
State, by counsel Scott Johnson, filed a response in support of the circuit court’s decision, to
which petitioner replied.

       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 March of 2012, a Kanawha County Grand Jury indicted petitioner on one count of
burglary by breaking and entering, one count of burglary without breaking, two counts of
domestic assault, and one count of brandishing a deadly weapon. These charges arose after an
incident with petitioner’s friend and petitioner’s ex-girlfriend. In an effort to save petitioner’s
military career and background, the State proposed that petitioner plead guilty to misdemeanor
destruction of property by information and simple assault against his friend, and further proposed
that petitioner forfeit the handgun that was used and continue his counseling from Veterans
Affairs. On May 4, 2012, the plea agreement was orally presented to the circuit court, but was
rejected. The circuit court stated that it would not accept the plea agreement unless petitioner was
prevented from ever having access to firearms. The parties unsuccessfully attempted to
renegotiate the proposed plea agreement. The matter proceeded to jury trial on May 7, 2012, and
petitioner was convicted of burglary by breaking and entering and brandishing a deadly weapon.
Petitioner was acquitted of domestic assault.

      On appeal, petitioner first argues that the circuit court exceeded its lawful authority by
improperly participating in the plea negotiation process when it rejected the plea proposal on

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May 4, 2012. This Court has stated that Rule 11(e)(1) of the West Virginia Rules of Criminal
Procedure “prohibits absolutely a trial court from all forms of judicial participation in or
interference with the plea negotiation process.” State v. Sugg, 193 W.Va. 388 406, 456 S.E.2d
469, 487 (1995). However, “[a] trial court is free . . . to reject a plea agreement and may even
express its reasons for doing so.” Id. “A court's ultimate discretion in accepting or rejecting a
plea agreement is whether it is consistent with the public interest in the fair administration of
justice.” Syl. Pt. 4, Myers v. Frazier, 173 W.Va. 658, 319 S.E.2d 782 (1984). Further,

       [a] primary test to determine whether a plea bargain should be accepted or
       rejected is in light of the entire criminal event and given the defendant's prior
       criminal record whether the plea bargain enables the court to dispose of the case
       in a manner commensurate with the seriousness of the criminal charges and the
       character and background of the defendant.

Syl. Pt. 6, id. The facts of this case show that the prosecutor disclosed the terms of the proposed
plea agreement to the circuit court. Thereafter, the circuit court stated that the proposed plea was
unacceptable in view of the seriousness of the underlying charges and his concern about the
safety of the public. Therefore, the circuit court did not abuse its discretion in refusing the
proposed plea agreement.

         Second, petitioner argues that he was denied a fair trial as a result of improper
prosecutorial remarks. Petitioner argues that the prosecutor’s opening statement contained facts
that he knew would not be supported by the trial testimony. Petitioner also argues that he was
denied a fair trial as a result of improper redirect examination by the prosecutor that was
intended to inflame the jury. Finally, petitioner argues during closing arguments, he was denied a
fair trial because the prosecutor referred to facts not in evidence; gave his opinion as to why
petitioner’s gun was unloaded; gave his opinion about what time it got dark; commented on the
truthfulness of a witness’s testimony; stated petitioner’s actions were illegal; gave his opinion
about what constituted brandishing; commented on a witness’s creditability; and, accused
defense counsel of wrong-doing.

        As an initial matter, we observe that petitioner failed to object to the alleged improper
remarks during opening statements. Upon our review, the Court declines to address petitioner’s
assignments of error regarding improper remarks during the prosecutor’s opening statement. We
have previously held that “‘[o]ur general rule is that nonjurisdictional trial error not raised in the
trial court will not be addressed on appeal.’ Syllabus Point 9, State v. Humphrey, 177 W.Va. 264,
351 S.E.2d 613 (1986).” Syl. Pt. 4, State v. Smith, 178 W.Va. 104, 358 S.E.2d 188 (1987).
Because petitioner failed to raise these issues below, the Court declines to address the same here.

        As to the prosecutor’s comments during redirect examination, the Court does not find that
the circuit court abused its discretion in allowing the State to recall a witness concerning the
witness’s conversations with opposing counsel and petitioner. “The action of a trial court in
admitting or excluding evidence in the exercise of its discretion will not be disturbed by the
appellate court unless it appears that such action amounts to an abuse of discretion.” Syl. Pt. 10,
State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds, State ex rel.
R.L. v. Bedell, 192 W.Va. 435, 452 S.E.2d 893 (1994).

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        Finally, in regards to the prosecutor’s comments during his closing statement, we find no
error. In Syllabus Point 5 of State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995), we held that
“[a] judgment of conviction will not be set aside because of improper remarks made by a
prosecuting attorney to a jury which do not clearly prejudice the accused or result in manifest
injustice.” Further, we have noted as follows:

       Four factors are taken into account in determining whether improper prosecutorial
       comment is so damaging as to require reversal: (1) the degree to which the
       prosecutor’s remarks have a tendency to mislead the jury and to prejudice the
       accused; (2) whether the remarks were isolated or extensive; (3) absent the
       remarks, the strength of competent proof introduced to establish the guilt of the
       accused; and (4) whether the comments were deliberately placed before the jury
       to divert attention to extraneous matters.

Syl. Pt. 6, id. Applying the four-part test in Sugg, we find that the State’s comments during
closing arguments could not have misled the jury. Second, the remarks were isolated; third, the
remaining evidence was sufficient to convict petitioner; and fourth, they were unlikely to divert
the attention of the jury to extraneous matters. Thus, because petitioner was not clearly
prejudiced by the State’s comments and because no manifest injustice resulted as a result of the
comments, we find no error.

       For the foregoing reasons, we affirm.

                                                                                       Affirmed.

ISSUED: June 28, 2013

CONCURRED IN BY:

Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:

Chief Justice Brent D. Benjamin
Justice Margaret L. Workman




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