Jackie S., by counsel Justin Gregory, appeals the Circuit
Court of Preston County's July 23, 2015, order sentencing
him to prison for ten to twenty years for one count of sexual
abuse by a parent, in violation of West Virginia Code §
61-8D-5. The State of West Virginia, by counsel
Zachary Aaron Viglianco, filed a response in support of the
circuit court's order. On appeal, petitioner argues that
he did not knowingly, intelligently, and voluntarily enter
into a plea agreement.
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.
October of 2013, a Preston County grand jury indicted
petitioner on twelve counts of incest, in violation of West
Virginia Code § 61-8-12, and eight counts of sexual
abuse by a parent, in violation of West Virginia Code §
61-8D-5. These charges stemmed from sexual conduct against
his adopted daughter.
April of 2015, petitioner entered an Alford plea to
one count of sexual abuse by a parent. As part of the
plea agreement, the State dismissed the remaining nineteen
counts. During the plea hearing, the circuit court conducted
a thorough plea colloquy. During the proceedings, petitioner
indicated that while he was having "a little bit of
trouble with [his blood] sugar today" and was slow to
"comprehend" the proceedings, he "ate some
cookies" and was then able to understand everything.
Throughout the rest of the proceedings, petitioner
affirmatively answered, multiple times, that he understood
the plea hearing proceedings and that he was voluntarily
entering into the plea agreement. Thereafter, the circuit
court sentenced petitioner to a term of incarceration of ten
to twenty years, followed by twenty years of supervised
release. This appeal followed.
Court has previously explained that "[a]n appeal
ordinarily does not lie in a criminal case from a judgment of
conviction rendered upon a plea of guilty." State v.
Sims, 162 W.Va. 212, 215, 248 S.E.2d 834, 837 (1978).
However, we also held in Syllabus Point 1 of Sims
that "[a] direct appeal from a criminal conviction based
on a guilty plea will lie where an issue is raised as to the
voluntariness of the guilty plea or the legality of the
sentence." Id. at 212, 248 S.E.2d at 835, Syl.
Pt. 1. Further, "[w]here the issue on an appeal from the
circuit court is clearly a question of law or involving an
interpretation of a statute, we apply a de novo
standard of review." Syl. Pt. 1, Chrystal R.M. v.
Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).
appeal, petitioner argues that he did not knowingly,
intelligently, and voluntarily enter into his plea agreement.
Specifically, petitioner argues that he displayed clear signs
that he did not fully understand the proceedings and was
suffering from a medical issue that prevented him from
entering a plea agreement. We disagree. This Court set forth
the requirements to determine the voluntariness of a guilty
plea in Call v. McKenzie 159 W.Va. 191, 220 S.E.2d
665 (1975). In Syllabus Points 3, 4, and 5 of Call,
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
Where there is a plea bargain by which the defendant pleads
guilty in consideration for some benefit conferred by the
State, the trial court should spread the terms of the bargain
upon the record and interrogate the defendant concerning
whether he understands the rights he is waiving by pleading
guilty and whether there is any pressure upon him to plead
guilty other than the consideration admitted on the record.
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
or a trial court proceeding in Habeas corpus that the
defendant's plea was knowingly and intelligently made
with due regard to the intelligent waiver of known rights.
Id. at 191-92, 220 S.E.2 at 667-68.
review of the hearing transcript reflects that the circuit
court conducted a thorough plea colloquy in this case,
satisfying the requirements of Call and ensuring
that petitioner's guilty plea was knowingly,
intelligently, and voluntarily made and that petitioner was
fully advised of all the rights he was giving up by pleading
guilty. Further, petitioner's argument that he suffered
from a medical condition that prohibited him from
understanding the plea proceedings or entering a knowing,
intelligent, and voluntary plea is not supported by the
record. During the plea hearing, the circuit court discussed
petitioner's medical condition as it related to his
ability to understand the proceedings to which petitioner
responded that he was having "a little bit of trouble
with [his blood] sugar today" and was slow to
"comprehend" the proceedings, but that he "ate
some cookies" and was able to understand everything. The
record also reflects that petitioner testified at the plea
hearing that his plea was voluntary; that no one had used any
force, pressure, or threats to unduly influence him to plead
guilty; and that he had plenty of time to meet and discuss
his case with his attorney. For these reasons, the Court
finds no error.
foregoing reasons, the circuit court's July 23, 2015,