                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia, Plaintiff Below,                                             FILED
Respondent                                                                          April 28, 2014
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs) No. 13-0781 (Hampshire County 13-F-08 and 13-F-49)                           OF WEST VIRGINIA



Shane Hott, Defendant Below,
Petitioner


                                MEMORANDUM DECISION

        Petitioner Shane Hott, by counsel Agnieszka Collins, appeals the Circuit Court of
Hampshire County’s May 31, 2013, order sentencing him to a term of incarceration following his
pleas of nolo contendere to one count of malicious assault; one count of battery on a police
officer, second offense; and one count of domestic battery, third offense. The State, by counsel
Derek Knopp, filed a response. On appeal, petitioner alleges that he did not knowingly,
intelligently, and voluntarily enter his nolo contendere pleas.

        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.

       Following an incident with his ex-girlfriend in October of 2012, petitioner was indicted in
January of 2013, in Criminal Action No. 13-F-08 on two counts of second degree sexual assault;
one count of domestic battery, third offense; one count of battery on a police officer, second
offense; and one count of obstructing an officer.

        The parties appeared before the circuit court on May 24, 2013, for the entry of
petitioner’s plea agreement. However, prior to discussing the terms of petitioner’s plea
agreement on the record, the State filed an Information charging petitioner with one count of
malicious assault. Petitioner then filed a “Waiver of Indictment and Agreement to be Prosecuted
by Information” and a “Waiver of Indictment.”1 Following a lengthy discussion on the record,
petitioner pled nolo contendere to one count of malicious assault; one count of battery on a
police officer, second offense; and one count of domestic battery, third offense. The remaining

       1
        These documents were filed on May 24, 2013. However, for reasons that are not clear
from the record before this Court, the documents are dated May 24 and May 25, 2013,
respectively.
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counts of the indictment were dismissed. By order entered on May 31, 2013, petitioner was
sentenced to a term of incarceration of one to five years for one count of domestic battery, third
offense, in violation of West Virginia Code § 61-2-28; one to three years for one count of battery
on a police officer, second offense, in violation of West Virginia Code § 61-2-10b(d); and two to
ten years for one count of malicious assault in violation of West Virginia Code § 61-2-9(a).2 It is
from this order that petitioner now appeals.

        Petitioner argues that his nolo contendere plea was not freely, knowingly, and voluntarily
entered because he did not have a sufficient time to consider the plea deal. Specifically,
petitioner asserts that he did not have an opportunity to discuss the agreement with his family
because he was presented with the agreement on May 23, 2013, and then appeared before the
circuit court the following day for an unscheduled hearing in which the circuit court accepted the
plea agreement. Petitioner further avers that his statement to the circuit court requesting an
alternative sentence supports his position that he did not fully understand the terms of his plea
agreement.

        Upon our review, we find no error. To begin, petitioner concedes that his assignment of
error must be analyzed under “plain error” because he did not object to the time provided to
consider his plea. “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).

        Rule 11 of the West Virginia Rules of Criminal Procedure and Call v. McKenzie, 159
W.Va. 191, 220 S.E.2d 665 (1975) set forth the requirements to determine the voluntariness of a
guilty plea. In Syllabus Point 5 of Call, we stated that

                [a] trial court should spread upon the record the defendant's education,
        whether he consulted with friends or relatives about his plea, any history of
        mental illness or drug use, the extent he consulted with counsel, and all other
        relevant matters which will demonstrate to an appellate court . . . that the
        defendant’s plea was knowingly and intelligently made with due regard to the
        intelligent waiver of known rights.

Id. at 192, 220 S.E.2d at 668.

        A review of the hearing transcript reflects that the circuit court conducted a thorough plea
colloquy in this case, satisfying the requirements of Rule 11 and Call v. McKenzie. Further,
Petitioner’s argument that he did not have the opportunity to speak with his friends or family
about his plea agreement is not supported by the record. During the plea and sentencing hearing,
the circuit court discussed petitioner’s education, his understanding of the proceedings, and his

        2
         The circuit court ordered that the sentences for battery on a police officer and domestic
battery shall run consecutively to each other, but consecutive to the sentence for malicious
assault for an effective sentence of three to fifteen years.
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mental status. The circuit court thoroughly explained the elements and potential penalties for
each crime, along with his constitutional rights. During the plea hearing, petitioner testified that
he was pleading nolo contendere after the circuit court stated that he was pleading guilty.
Furthermore, petitioner began negotiating his plea agreement as early as February of 2013.
Importantly, the record reflects that petitioner tried to renegotiate the plea agreement four days
before the circuit court accepted petitioner’s plea agreement. The record also reflects that
petitioner testified that his plea of nolo contendere was of his own “free will and accord;” that no
one had used any force, pressure, or threats to unduly influence him to plead nolo contendere;
and that he had plenty of time to meet and discuss his case with his attorney. For these reasons,
the Court finds no error.

       For the foregoing reasons, the circuit court’s May 31, 2013, sentencing order is hereby
affirmed.


                                                                                         Affirmed.

ISSUED: April 28, 2014

CONCURRED IN BY:

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




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