                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

State of West Virginia,
Plaintiff Below, Respondent                                                          FILED
                                                                                   May 26, 2020
vs.) No. 19-0333 (Berkeley County 17-F-233)                                      EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
Shaniqua Whindleton,
Defendant Below, Petitioner



                               MEMORANDUM DECISION

        Petitioner Shaniqua Whindleton, by counsel Kevin D. Mills and Shawn R. McDermott,
appeals the March 13, 2019, order of the Circuit Court of Berkeley County that sentenced her to
one to five years in prison on the charge of possession with intent to deliver marijuana and which
suspended such sentence in favor of probation for a period of five years. The State of West
Virginia, by counsel Shannon Frederick Kiser, filed a response in support of the circuit court’s
order. Petitioner submitted 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 affirming the order of the circuit court is appropriate under Rule 21 of
the Rules of Appellate Procedure.

        In December of 2016, petitioner was a passenger in a vehicle being driven by Joshua Shaine
Moore that was stopped by Trooper D.R. Walker in Berkeley County, West Virginia. Inside the
vehicle, Trooper Walker discovered large amounts of individually sealed bags of marijuana, a
vacuum sealer, empty plastic bags, a vacuum-sealed and loaded .357 Magnum revolver that had
been wiped clean, and other evidence that resulted in the arrest of petitioner, Mr. Moore, and a
second passenger, Abdul Kamara. All three were subsequently indicted on the charges of
possession with intent to deliver marijuana, see W. Va. Code § 60A-4-401(a)(ii), transportation of
a controlled substance into the state, see W. Va. Code § 60A-4-409(a), and one count of conspiracy
to commit possession with intent to deliver marijuana. See W. Va. Code § 61-10-31.1

       1
         Mr. Kamara was also charged with being a prohibited person in possession of a firearm.
See W. Va. Code § 61-7-7(a)(8). He subsequently entered a guilty plea to the misdemeanor offense
of conspiracy to possess marijuana and was sentenced to time served. Mr. Moore was convicted

                                                  1
        On December 5, 2017, petitioner and the State entered into a deferred adjudication
agreement under which petitioner pled guilty to the felony offense of possession with intent to
deliver marijuana, which, pursuant to West Virginia Code § 61-11-22a,2 the circuit court held in
abeyance and placed petitioner on probation/pretrial release for a period of three years, with

by a jury of all three counts of the indictment. See infra. His conviction was affirmed by this Court
in State v. Moore, No. 18-0786, 2020 WL 533113 (W.Va. Feb. 3, 2020) (memorandum decision).
       2
           West Virginia Code § 61-11-22a provides:

       (a) Upon the entry of a guilty plea to a felony or misdemeanor before a circuit or
           magistrate court of this state entered in compliance with the provisions of West
           Virginia Rule of Criminal Procedure 11 or Rule 10 of the West Virginia Rules
           of Criminal Procedure for Magistrate Courts and applicable judicial decisions,
           the court may, upon motion, defer acceptance of the guilty plea and defer further
           adjudication thereon and release the defendant upon such terms and conditions
           as the court deems just and necessary. Terms and conditions may include, but
           are not limited to, periods of incarceration, drug and alcohol treatment,
           counseling and participation in programs offered under articles eleven-a,
           eleven-b and eleven-c, chapter sixty-two of this code.

       (b) If the offense to which the plea of guilty is entered is a felony, the circuit court
           may defer adjudication for a period not to exceed three years. If the offense to
           which the plea of guilty is entered is a misdemeanor, the court may defer
           adjudication for a period not to exceed two years.

       (c) If the defendant complies with the court-imposed terms and conditions he or
           she shall be permitted to withdraw his or her plea of guilty and the matter
           dismissed or, as may be agreed upon by the court and the parties, enter a plea
           of guilty or no contest to a lesser offense.

       (d) In the event the defendant is alleged to have violated the terms and conditions
           imposed upon him or her by the court during the period of deferral the
           prosecuting attorney may file a motion to accept the defendant’s plea of guilty
           and, following notice, a hearing shall be held on the matter.

       (e) In the event the court determines that there is reasonable cause to believe that
           the defendant violated the terms and conditions imposed at the time the plea
           was entered, the court may accept the defendant’s plea to the original offense
           and impose a sentence in the court’s discretion in accordance with the statutory
           penalty of the offense to which the plea of guilty was entered or impose such
           other terms and conditions as the court deems appropriate.

       (f) The procedures set forth in this section are separate and distinct from that set
           forth in West Virginia Rule of Criminal Procedure 11(a)(2).

                                                  2
specific terms and conditions. Pursuant to the agreement, petitioner was required to

       fully cooperate with the State on the prosecution of this and pending cases against
       any and all co-defendants. . . . This cooperation includes the [petitioner] providing
       recorded, truthful, and full debriefings to the State about the aforementioned crimes
       . . . . Any failure by the [petitioner] to cooperate fully and truthfully as directed by
       the Berkeley County Prosecuting Attorney’s Office or other state and local law
       enforcement authorities identified by this office in any and all matters relevant to
       this matter will constitute a breach of this agreement by the [petitioner].

        In exchange, the State agreed to dismiss all remaining counts of the indictment against
petitioner.

       The deferred adjudication agreement further provided that,

       [i]f the prosecuting attorney or the Probation department files a motion to accept
       [petitioner’s] plea of guilty based upon an allegation that [petitioner] violated the
       terms and conditions imposed upon her by the court during the period of deferral
       and, after a hearing, the circuit court determines that there is reasonable cause to
       believe that the [petitioner] violated the terms and conditions, the Court shall enter
       the felony offense and sentence [petitioner] at the Court’s discretion. [Petitioner]
       specifically waives any right to graduated sanctions that may exist pursuant to W.
       Va. Code 61-11-22a or 61-12-10.

However, under the agreement, “if [petitioner] successfully completes the period of deferral, the
[petitioner] may withdraw her plea to the felony and enter a plea to misdemeanor possession of a
controlled substance, marijuana [§ 60-4-401(c)] a lesser included offense, and be sentenced to a
fine.”

        The circuit court thereafter accepted the agreement and entered a pretrial diversion order
on January 31, 2018. Relevant to this appeal, additional terms and conditions to the deferred
adjudication agreement were agreed upon and appended to the court’s order, including that
petitioner “not have any direct or indirect contact with any . . . co-defendant . . . .” and that
petitioner “not use, consume, purchase, possess, or distribute any narcotics, marijuana, or other
controlled substance, unless prescribed for him or her by a physician.”

         Meanwhile, the trial of petitioner’s co-defendant, Mr. Moore, was scheduled to proceed on
all three counts of the indictment.3 Petitioner was subpoenaed to testify. In preparation for Mr.
Moore’s trial, petitioner and her counsel twice met with the assistant prosecuting attorney and
Trooper Walker regarding her testimony. The meetings with petitioner were memorialized in an
August 1, 2018, memorandum prepared by the assistant prosecuting attorney, Kevin J. Watson
(“APA Watson”), and signed by both APA Watson and Trooper Walker. The memorandum noted
that, at the first meeting, petitioner denied knowing anything about the marijuana that was found
in Mr. Moore’s vehicle; admitted “that she thought something might be up, but didn’t know if [Mr.
       3
           The circuit court rejected a proposed plea agreement between Mr. Moore and the State.

                                                  3
Moore] sold marijuana”; and maintained that “she didn’t know anything about a plan to sell or
distribute” the marijuana, stating “I don’t know and I won’t assume.” During that meeting,
petitioner also “maintained that she didn’t know [Mr. Moore] well, that they were just having sex
but weren’t in a relationship.”

        At the second meeting, the memorandum noted, petitioner eventually admitted that she had
been in a serious relationship with Mr. Moore, and that, even though he often stayed at her house,
did not have a car, and petitioner would often give him a ride, she denied “any detailed knowledge
about Mr. Moore’s marijuana operation/sales.” Regarding the marijuana that was found in the
vehicle at the time of her arrest, petitioner advised that Mr. Moore “briefly mentioned to her about
selling the Marijuana to 2 different dispensaries in Whiteplains, N[ew] Y[ork] (near New York
City), he said he wanted to see what they thought of his stuff.” Petitioner further advised that “she
didn’t know anything about Abdul Kamara [the other passenger], and that he just showed up one
day, she believed they [Kamara and Moore] lived together in California for a while.” Regarding
photographs that were found on Mr. Moore’s phone of packages that contained marijuana that had
shipping labels addressed to petitioner on them, petitioner stated that, although she lived alone,
she never received any such packages and could not explain the pictures on Mr. Moore’s phone.
Regarding the gun that was found vacuum-sealed in the vehicle, petitioner claimed that it belonged
to her, could not explain why male clothing was found in the bag with the gun, and “specifically
denied wiping it for fingerprints or packaging it . . . for any illegal or bad purposes.” Finally,
although petitioner “agreed with Trooper [W]alker that [Mr. Moore] had used her, and indicated
that they were not together now and they don’t talk[,]” petitioner was present at Mr. Moore’s pre-
trial hearing “and was seated behind Mr. Moore—seemingly directly contradicting her statements
that they were not together now and they don’t talk.” In sum, the memorandum stated:

       It was clear that [petitioner] was minimizing her knowledge and relationship with
       Mr. Moore, was directly untruthful about several matters, and generally was not
       cooperating with law enforcement on this matter. The State proceeded with the jury
       trial of Mr. Moore without [petitioner as a witness], based in large part upon her
       uncooperativeness and untruthfulness.4

       ....

       During the statements, when [petitioner] would speak about marijuana, Joshua
       Moore, or the firearm, her voice and body language would change, making it appear
       as though she was being deceitful.

(Footnote added).

       On August 14, 2018, the State filed a Motion to Revoke Deferred Adjudication and Accept
the Defendant’s Plea of Guilty. The State requested a hearing “to determine if there is reasonable
cause to believe that the defendant violated the terms and conditions imposed[,]” including the
requirements that she “shall truthfully answer all inquiries of . . . any law enforcement officer[,]”
and “shall not have any direct or indirect contact with any . . . co-defendant . . . .” Upon such a


       4
           Mr. Moore was convicted on all three counts of the indictment.
                                                 4
finding, the State requested that the court “accept and adjudicate [petitioner] upon the guilty plea
to Possession With Intent to Deliver Marijuana . . . and sentence [her] in the [c]ourt’s discretion.”

         The State filed a supplement to its motion to revoke on September 7, 2018, in which it
alleged that petitioner violated an additional term and condition of her deferred adjudication—that
is, petitioner tested positive for marijuana despite the condition directing that she not consume
marijuana or any other controlled substance.

         A revocation hearing was conducted on September 17, 2018, at which Trooper Walker
testified.5 Trooper Walker’s testimony was consistent with the observations made in the August 1,
2018, memorandum. In an order entered on September 18, 2018, the circuit court found that the
evidence presented at the September 17th hearing “show[ed] reasonable cause to believe that
[petitioner] violated a condition of her Deferred Adjudication Agreement as alleged” by the State.
The court found:

          Specifically, [petitioner] was untruthful regarding her relationship with the co-
          defendant who was the target of the investigation. In addition to being a violation
          of her terms of deferred adjudication, this was material because it was bargained
          for by the State in the plea agreement. [Petitioner] got her bargained[-]for relief,
          but the State did not get a witness on the inside of the operation.

The court ordered that a pre-sentence investigation report be prepared and scheduled an additional
hearing for entry of judgment and sentencing.

       On December 10, 2018, the circuit court conducted a disposition hearing on the State’s
motion to revoke.6 According to its December 20, 2018, order,

          [p]rior to hearing argument, the [c]ourt noted the binding nature of the plea
          agreement: specifically, that paragraph 7, line 5 of the agreement states that the
          [c]ourt “shall” enter the conviction if the Court finds that [petitioner] violated a
          term of her deferred adjudication. The [c]ourt noted that[,] pursuant to [] its
          previous unequivocal acceptance of the plea agreement, and Syl. Pts. 4 and 5 of
          State ex rel. Brewer v. Starcher, 195 W. Va. 185, 189, 465 S.E.2d 185, 189 (1995),
          it believes it is without jurisdiction to place [petitioner] back upon deferred
          adjudication.7
          5
              Petitioner’s probation officer, Lara Nine, also testified.
          6
              A copy of the December 10, 2018, hearing transcript was not made a part of the appendix
record.
          7
         Syllabus points 4 and 5 of State ex rel. Brewer v. Starcher, 195 W. Va. 185, 465 S.E.2d
185 (1995) held:
               Once a circuit court unconditionally accepts on the record a plea agreement
       under Rule 11(e)(1)(C) of the West Virginia Rules of Criminal Procedure, the
       circuit court is without authority to vacate the plea and order reinstatement of the

                                                       5
At petitioner’s request, the circuit court continued the hearing on the motion to revoke and
“specifically[,] on the issue of the [c]ourt’s ability to enter the conviction, and any
sentencing/disposition issues[.]”

        Following a hearing on February 11, 2019, the circuit court entered an order on March 13,
2019, that concluded that petitioner “does now stand convicted of the offense of possession with
the intent to distribute [sic] marijuana, a felony,” and sentenced her to one to five years in prison,
which sentence was ordered to be suspended in favor of probation for five years. The court stayed
its order pending this appeal.

       This Court reviews the circuit court’s order under the following standard:

               In reviewing challenges to the findings and conclusions of the circuit court,
       we apply a two-prong deferential standard of review. We review the final order and
       the ultimate disposition under an abuse of discretion standard, and we review the
       circuit court’s underlying factual findings under a clearly erroneous standard.
       Questions of law are subject to a de novo review.

Syl. Pt. 2, State v. Hinchman, 214 W. Va. 624, 591 S.E.2d 182 (2003) (citation omitted).

        In her first assignment of error, petitioner argues that the circuit court erred in finding that
reasonable cause existed that she violated the terms of the deferred adjudication agreement, which
required that she “fully cooperate with the State on the prosecution of” Mr. Moore, including that
she “provid[e] recorded, truthful, and full debriefings to the State about the . . . crimes.” Petitioner
argues that she substantially complied with the agreement by truthfully informing law enforcement
that Mr. Moore was driving to New York for the purpose of delivering the marijuana to a
dispensary. Petitioner argues that she was prepared to testify at Mr. Moore’s trial and that her
testimony would have helped to prove the charges on which he was being tried – i.e., possession
with intent to deliver marijuana, transportation of a controlled substance into the state, and
conspiracy to commit possession with intent to deliver marijuana. She contends that Trooper
Walker incorrectly determined that she was untruthful because her statements did not comport
with his theory that Mr. Moore intended to sell the marijuana to a gang in New York, which
petitioner found to be “preposterous” and without a basis in fact. In any event, petitioner argues,
there was overwhelming evidence presented to convict Mr. Moore and, therefore, her testimony

       original charge. Furthermore, after a defendant is sentenced on the record in open
       court, unilateral modification of the sentencing decision by the circuit court is not
       an option contemplated within Rule 11(e)(1)(C).

               A circuit court has no authority to vacate or modify, sua sponte, a validly
       accepted guilty plea under Rule 11(e)(1)(C) of the West Virginia Rules of Criminal
       Procedure because of subsequent events that do not impugn the validity of the
       original plea agreement.




                                                   6
was not necessary. Finally, petitioner argues that whether she was totally forthcoming about the
extent of her romantic relationship with Mr. Moore was not material to the determination of
whether she fully and truthfully cooperated with the State in connection with Mr. Moore’s
prosecution.

        We find no error. Trooper Walker’s testimony revealed that petitioner was not truthful
about her relationship with Mr. Moore, and, in his view, petitioner was also untruthful about the
actual purpose of transporting the marijuana to New York, as her statements were not consistent
with the evidence as they presented it to her.8 This Court has repeatedly stated that, as a reviewing
court, we “cannot assess witness credibility through a record.” Michael D.C. v. Wanda L.C., 201
W. Va. 381, 388, 497 S.E.2d 531, 538 (1997). See also Gum v. Dudley, 202 W. Va. 477, 484, 505
S.E.2d 391, 398 (1997) (“The trial court [is in the best position to] observe[ ] the demeanor of the
witnesses . . . that a record simply cannot convey.”); State v. Butcher, 165 W. Va. 522, 527, 270
S.E.2d 156, 159 (1980) (“The trial court had the benefit of observing the demeanor of the witness
as he testified, and we are without such benefit.”). Petitioner has failed to show that the circuit
court was clearly wrong in finding that there was reasonable cause to believe that petitioner
violated the condition of her deferred adjudication agreement requiring that she fully and truthfully
cooperate with the state in connection with Mr. Moore’s prosecution. See Hinchman, 214 W. Va.
at 626, 591 S.E.2d at 184, syl. pt. 2. Further, petitioner’s argument that her allegedly untruthful
characterization of her relationship with Mr. Moore was not material to the investigation of his
case is not compelling. As the circuit court correctly found, the State entered into the deferred
adjudication agreement with petitioner on the condition that she provide inside information about
Mr. Moore’s drug distribution operation. She refused to provide the bargained-for information.
We find no error in the court’s conclusion that petitioner’s breach of the agreement was material.

        Further, though not included in the circuit court’s revocation order, evidence was presented
that petitioner committed additional violations of her agreement – that is, the requirements that she
not have contact with Mr. Moore or consume marijuana. The record reveals that petitioner attended
Mr. Moore’s trial seemingly in support of him and, further, that she tested positive for marijuana
during her period of probation/pre-trial release. Petitioner does not dispute that she violated these
conditions of her deferred adjudication agreement. See Syl. Pt. 11, State ex rel. Vernatter v.
Warden, W. Virginia Penitentiary, 207 W. Va. 11, 528 S.E.2d 207 (1999) (“‘This Court may, on
appeal, affirm the judgment of the lower court when it appears that such judgment is correct on
any legal ground disclosed by the record, regardless of the ground, reason or theory assigned by
the lower court as the basis for its judgment.’ Syllabus point 3, Barnett v. Wolfolk, 149 W.Va. 246,
140 S.E.2d 466 (1965).”). Based upon the foregoing, therefore, we conclude that the circuit court
did not err in finding that there was reasonable cause to believe that petitioner violated the terms
and conditions of her deferred adjudication agreement.




       8
           As noted in the memorandum, which was written after the completion of Mr. Moore’s
jury trial, “Trooper Walker presented [petitioner] with a factual scenario that the evidence was
pointing to (and that the jury apparently foun[d] beyond a reasonable doubt at Mr. Moore’s jury
trial). In response, [petitioner] stated that Trooper Walker can have his opinion but she doesn’t
know anything about that.”
                                                 7
         We next address petitioner’s assignment of error that the circuit court erred in determining
that it did not have the discretion to continue petitioner on deferred adjudication. The agreement
stated, in relevant part, as follows:

       If the prosecuting attorney or the Probation department files a motion to accept
       [petitioner’s] plea of guilty based upon an allegation that [petitioner] violated the
       terms and conditions imposed upon her by the court during the period of deferral
       and, after a hearing, the circuit court determines that there is reasonable cause to
       believe that the defendant violated the terms and conditions, the Court shall enter
       the felony offense and sentence defendant at the Court’s discretion. [Petitioner]
       specifically waives any right to graduated sanctions that may exist pursuant to W.
       Va. Code 61-11-22a or 61-12-10.

(Emphasis added).

        Petitioner argues that the emphasized language – “[i]f . . . the circuit court determines that
there is reasonable cause to believe that the defendant violated the terms and conditions, the Court
shall enter the felony offense and sentence defendant at the Court’s discretion” – coupled with the
language set forth in West Virginia Code § 61-11-22a(e), afforded the circuit court the discretion
not to enter the felony offense of possession with intent to deliver marijuana, but to continue
petitioner on deferred adjudication (i.e., probation), with additional conditions. West Virginia
Code § 61-11-22a(e) provides:

       In the event the court determines that there is reasonable cause to believe that the
       defendant violated the terms and conditions imposed at the time the plea was
       entered, the court may accept the defendant’s plea to the original offense and
       impose a sentence in the court’s discretion in accordance with the statutory penalty
       of the offense to which the plea of guilty was entered or impose such other terms
       and conditions as the court deems appropriate.

        This Court has made clear that “[a]s a matter of criminal jurisprudence, a plea agreement
is subject to principles of contract law insofar as its application insures a defendant receives that
to which he is reasonably entitled.” Brewer, 195 W. Va. at 192, 465 S.E.2d at 192. Relying on
Paroline v. United States, 572 U.S. 434, 447 (2014), petitioner argues that this Court should apply
the canon of statutory construction that provides that “‘[w]hen several words are followed by a
clause which is applicable as much to the first and other words as to the last, the natural
construction of the language demands that the clause be read as applicable to all.’” (quoting Porto
Rico Railway, Light & Power Co. v. Mor, 253 U.S. 345, 348 (1920)).9 At the very least, petitioner
argues, the phrase “at the Court’s discretion” in the deferred adjudication agreement should be
construed as modifying both the entry of the felony offense and sentencing. According to
petitioner, the burden was on the State to draft the agreement with clarity and, because it failed to
do so, it must be construed against the State and in favor of petitioner:

              Due to the significant constitutional rights that a criminal defendant waives
       in connection with the entry of a guilty plea, the burden of insuring both precision

       9
           Petitioner identifies this canon of construction as the “series qualifier” canon.
                                                   8
       and clarity in a plea agreement is imposed on the State. Consequently, the existence
       of ambiguity in a court-approved plea agreement will be construed against the State
       and in favor of the defendant.

Syl. Pt. 3, State ex rel. Thompson v. Pomponio, 233 W. Va. 212, 757 S.E.2d 636 (2014).

        We disagree as we do not find the deferred adjudication agreement to be ambiguous and,
as a result, conclude that rules of statutory construction do not apply. We have explained that

       “‘[i]t is not the right or province of a court to alter, pervert or destroy the clear
       meaning and intent of the parties as expressed in unambiguous language in their
       written contract or to make a new or different contract for them.’ Syllabus point 3,
       Cotiga Development Co. v. United Fuel Gas Co., 147 W.Va. 484, 128 S.E.2d 626
       (1962).” Syl. Pt. 3, Cabot Oil & Gas Corp. v. Huffman, 227 W.Va. 109, 705 S.E.2d
       806 (2010).

State v. Stewart, No. 18-0006, 2019 WL 181479, *5 (W. Va. Jan. 14, 2019) (memorandum
decision). Petitioner’s assertion that the deferred adjudication agreement is ambiguous does not
make it so. We recognize that West Virginia Code § 61-11-22a(e) gives courts the discretion to
accept a defendant’s plea to the original offense and impose a sentence where there is a reasonable
cause to believe the terms and conditions of a plea agreement have been violated. In this case, as
authorized by West Virginia Code § 61-11-22a(e), the agreement clearly required the circuit court
to enter the original felony offense as evidence by the use of the word “shall,” see generally Syl.
Pt. 1, Nelson v. W. Va. Pub. Emp. Ins. Bd, 171 W. Va. 445, 300 S.E.2d 86 (1982) (holding that the
word “shall . . . should be afforded a mandatory connotation”), while also allowing it to sentence
petitioner “at [its] discretion.” The circuit court adhered to the plain language of the agreement
when, upon finding that petitioner violated the agreement, it entered the offense of possession with
intent to deliver marijuana, and, in its discretion, sentenced petitioner to a period of five years in
prison, which sentence it suspended in favor of five years of probation. We, therefore, find
petitioner’s argument that the agreement is ambiguous and should have been construed against the
State and in her favor to be without merit.

        Additionally, petitioner argues that if the agreement is deemed to be unambiguous, she did
not make a knowing, intelligent, and voluntary waiver of her statutory right to have the circuit
court exercise discretion in imposing the felony conviction upon finding a violation. According to
petitioner, the discretion afforded the circuit court in deciding disposition, as set forth in West
Virginia Code § 61-11-22a(e), “is an important due process right that [petitioner] would be
required to waive.” We find no error.

       The record reveals that, during the January 25, 2018, plea hearing, it was petitioner’s
counsel who summarized the deferred adjudication agreement as one where

       [petitioner] would be tendering a conditional plea to the felony offense of
       possession with intent to deliver marijuana. And if she’s successful on three years
       of supervised probation, it would be reduced down to misdemeanor of simple
       possession. And, of course, if she is not successful, then the felony would be entered
       against her.
                                                  9
(Emphasis added).

       The circuit court proceeded to conduct the plea colloquy, explaining to petitioner that

       I have to ask you certain questions in order to take a valid plea. Now, this is
       deferred, so, this is all, you know, the way the lawyers think is: What’s the worst
       that’s going to happen? So all of this is going to be phrased as, you know if you
       were to at some point in the indefinite future violate the terms of the deferral, at
       that point you come back, we have a hearing, you did or you didn’t. If I find
       reasonable cause to believe you did, then, you know, we enter judgment on the
       severer of the charges, the felony possess [sic] with intent to deliver. And so that’s
       the reasons for all this, you know, procedure, with respect to it, because taking a
       felony plea is a big deal.

(Emphasis added). Petitioner’s counsel did not object or otherwise correct the circuit court’s
explanation of the agreement to petitioner. Finally, the court advised petitioner that

       what [the deferred adjudication agreement] does is, you know, contingent on how
       you perform, if you do well, then you get the possession if you – if there’s a problem
       and we have a hearing and it is determined that you have a problem, the next step
       is enter judgment on the felony conviction.

       And then, of course, everybody has to argue what they think is right for sentencing,
       and that could mean a penitentiary sentence for a felony.

       Do you understand that?

       A. Yes, sir.

(Emphasis added).

       The record thus clearly shows that petitioner understood that a violation of the deferred
adjudication agreement required the circuit court to enter judgment on the felony conviction of
possession with intent to deliver marijuana while allowing it to sentence her in its discretion.
Therefore, we conclude that, if petitioner was required to waive her rights under West Virginia
Code § 61-11-22a(e), she did so knowingly, intelligently, and voluntarily.

        Petitioner also argues that the parties intended that the deferred adjudication agreement
give the circuit court full discretion in both entry of the felony conviction and sentencing, as
provided for in West Virginia Code § 61-11-22a(e), and that the court erred in failing to reform
the agreement to reflect the same. See Syl. Pt. 4, Smith v. Smith, 219 W. Va. 619, 639 S.E.2d 711
(2006) (“A mutual mistake is one which is common to all parties, wherein each labors under the
same misconception respecting a material fact or provision within the agreement.”). We find no
error. As we have already established, petitioner clearly understood that the unambiguous language
of the agreement did not afford the circuit court discretion with regard to entering judgment on the


                                                10
felony conviction of possession with intent to deliver marijuana. Thus, the circuit court did not err
in refusing to reform the deferred adjudication agreement.

        Finally, we address petitioner’s assignment of error that the circuit court erred in finding
that the State did not violate her due process rights by failing to disclose impeachment evidence
regarding Trooper Walker. Petitioner contends that she learned, via media reports, that Trooper
Walker had been terminated from his employment following his involvement in the beating of a
juvenile during the course of an arrest and that she requested information from the State as to
whether Trooper Walker had lied on official police documents relating to that incident. Petitioner
argues that the State failed to provide the requested information, that the circuit court failed to
reopen the revocation proceedings, and that the court erred in finding that her due process rights
were not violated by the same.

         We find no error. Petitioner fails to point to anywhere in the record where the circuit court
considered whether petitioner was entitled to Trooper Walker’s personnel records or other
information regarding the arrest of the juvenile. Although petitioner requested the records in
Defendant Shaniqua Whindleton’s Memorandum Regarding Interpretation of Plea Agreement,
which she filed on February 7, 2019, our review of the February 11, 2019, hearing transcript
reveals that petitioner failed to raise the issue at that time or to otherwise request that the revocation
proceedings be reopened for consideration of the same. This Court has cautioned that “[i]t is the
responsibility of the parties to ensure that the record is preserved for our review. Indeed,
[petitioner], as the moving party, must assume the burden of bringing his motion to the attention
of the trial court.” State v. Garrett, 195 W. Va. 630, 642, 466 S.E.2d 481, 493 (1995) (citing State
v. Moran, 168 W. Va. 688, 691, 285 S.E.2d 450, 453 (1981)). See State v. Lively, 226 W. Va. 81,
92, 697 S.E.2d 117, 128 (2010) (quoting State v. LaRock, 196 W. Va. 294, 316, 470 S.E.2d 613,
635 (1996) (“‘[I]n general, the law ministers to the vigilant, not to those who sleep on their rights.
. . . When a litigant deems himself or herself aggrieved by what he or she considers to be an
important occurrence in the course of a trial . . . he or she ordinarily must object then and there or
forfeit any right to complain at a later time.’”). Thus, we find no error in the proceedings below.

        For the foregoing reasons, we affirm.

                                                                                               Affirmed.
ISSUED: May 26, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison

NOT PARTICIPATING:

Justice Margaret L. Workman



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