Derek Allen Byrd, by counsel Abraham J. Saad, appeals the
Circuit Court of Cabell County's March 1, 2016 order,
sentencing him to consecutive terms of incarceration of
twenty years for his conviction of three counts each of
first-degree robbery and ten years of incarceration for his
conviction of one count of retaliation against a public
official. The State of West Virginia, by counsel Gordon L.
Mowen, II, filed a response. On appeal, petitioner argues
that the circuit court erred in denying his motion to
withdraw his guilty plea.
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.
of 2014, petitioner and his co-defendant used a firearm to
forcibly take money and cigarettes from a Speedway gas
station in Huntington, West Virginia. Subsequently, in
September of 2014, petitioner sent a letter threatening to
harm The Honorable Judge Alfred E. Ferguson and his family.
In October of 2014, petitioner was indicted on three felony
counts of first-degree robbery and three felony counts of
conspiracy. He was subsequently indicted on three counts of
retaliation against a public official.
April of 2015, following plea negotiations with respondent,
petitioner pled guilty to three felony counts of first-degree
robbery and one felony count of retaliation against a public
official. In exchange for the guilty plea, respondent agreed
to dismiss the remaining counts in the indictments and
recommend that petitioner be sentenced to consecutive
fifteen-year terms of incarceration for each first-degree
robbery conviction. This was a non-binding plea agreement
that left sentencing to the circuit court's discretion.
On the same day, the circuit court sentenced petitioner to
three twenty-year terms of incarceration for the first-degree
robbery convictions and a ten-year term of incarceration for
the retaliation against a public official conviction. The
sentences were to run consecutively.
January of 2016, petitioner filed a motion to withdraw his
guilty plea and argued that the circuit court should have
sentenced him in accordance with respondent's
recommendation.A hearing on the motion was held on
February 26, 2016, before the Honorable Christopher D.
Chiles. The circuit court denied petitioner's
motion by order entered on March 1, 2016, and it is from this
order that petitioner appeals.
have previously held that "[t]he Supreme Court of
Appeals reviews sentencing orders . . . under a deferential
abuse of discretion standard, unless the order violates
statutory or constitutional commands. Syllabus Point 1, in
part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221
(1997)." Syl. Pt. 2, State v. Georgius, 225
W.Va. 716, 696 S.E.2d 18 (2010).
review of the circuit court's order denying
petitioner's motion to withdraw his guilty plea is guided
by Rule 32(e) of the West Virginia Rules of Criminal
Procedure, which provides that if the request to withdraw is
made at any time after sentencing "[the] plea may be set
aside only on direct appeal or by petition under W.Va. Code
§ 53-4A-1." Furthermore, "a trial court's
decision on a motion under Rule 32(e) of the West Virginia
Rules of Criminal Procedure will be disturbed only if the
court has abused its discretion." Syl. Pt. 1, Duncil
v. Kaufman, 183 W.Va. 175, 394 S.E.2d 870 (1990).
only assignment of error, petitioner argues that the circuit
court erred in denying his motion to withdraw his guilty
plea. Specifically, he claims that his sentence of sixty
years on three counts of first-degree robbery is "unjust
and unfair" because respondent recommended a
"cap" of forty-five years of incarceration. Thus,
it is his contention that the circuit court should have
"honored" the agreement between petitioner and
petitioner's argument to the contrary, we find no error
in the circuit court's order. We have held that there
"is a distinction between a situation where the
defendant enters the guilty plea but before he is sentenced
changes his mind and seeks to withdraw the plea, and that
where the defendant does not seek to withdraw the guilty plea
until after he hears the sentence." State v. Olish, 164
W.Va. 712, 716, 266 S.E.2d 134, 136 (1990). Further,
"where the guilty plea is sought to be withdrawn by the
defendant after sentence, it should be granted only to avoid
manifest injustice. " Id.
case at bar, petitioner seeks to have his guilty plea set
aside after sentencing. Based upon the record before this
Court, we conclude that there was no abuse of discretion by
the sentencing court in refusing to permit the withdrawal.
First, petitioner did not move to withdraw the guilty plea
until January of 2016, approximately nine months after he
entered his plea. Petitioner now seeks to withdraw his guilty
plea because he views it as a tactical mistake and wants to
have it set aside. Petitioner does not argue that the guilty
plea was involuntary or otherwise unconstitutional.
Petitioner simply claims that his sentence is
"unfair" and the circuit court "should have
heeded" respondent's recommendation. As such,
petitioner failed to satisfy the applicable burden to have
his guilty plea set aside after sentencing.
inasmuch as petitioner challenges the length of his sentence,
this Court has previously held that it reviews
"sentencing orders . . . under a deferential abuse of
discretion standard, unless the order violates statutory or
constitutional commands." Syl. Pt. 2, in part, State
v. Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010). We
have also held that "'[s]entences imposed by the
trial court, if within statutory limits and if not based on
some [im]permissible factor, are not subject to appellate
review.' Syllabus Point 4, State v. Goodnight,
169 W.Va. 366, 287 S.E.2d 504 (1982)."
Georgius, 225 W.Va. at 719, 696 S.E.2d at 21. We
note that petitioner's sentences for his crimes is within
the applicable statutory limitations, and he does not allege
that his sentences were based on any impermissible factors.
As such, his sentences are not reviewable on appeal.
petitioner claims that the circuit court "breached its
plea agreement in violation of the law."
Petitioner's claim is simply wrong. We have held that
where "the state agrees to make a sentencing
recommendation and enters into a plea agreement with the
defendant . . . the trial court is not bound to impose the
sentence recommended by the state if it accepts the plea
agreement." State ex rel. Forbes v. Kaufman,
185 W.Va. 72, 76, 404 S.E.2d 763, 767 (1991). Accordingly, we
find no error below.
foregoing reasons, we find no error in the decision of the
circuit court, and its March 1, ...