Brian Parks, by counsel C. Joan Parker, appeals the Circuit
Court of Kanawha County's May 27, 2016, order sentencing
him to a term of incarceration of fifty years for his
conviction of one count of first-degree robbery. The State of
West Virginia, by counsel Gordon L. Mowen, II, filed a
response. On appeal, petitioner argues that the circuit court
erred when it denied 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.
September of 2015, petitioner and his co-defendants forcibly
entered the victim's apartment and robbed him of money
and drugs. During the commission of the robbery, the victim
was physically assaulted and later died of his injuries.
Subsequently, in March of 2016, petitioner was indicted on
one felony count of first-degree robbery and one felony count
of first-degree murder.
April of 2015, following plea negotiations, the State
extended a binding plea offer to petitioner whereby he would
plead guilty to one felony count of first-degree robbery and
the State agreed to dismiss the remaining felony count of
first-degree murder. For this crime, petitioner would be
sentenced to a determinate term of fifty years of
incarceration. Additionally, the plea itself was entered into
pursuant to Rule 11(e)(1)(c) of the West Virginia Rules of
entered his guilty plea of guilty on May 6, 2016. During the
plea hearing, the circuit court engaged petitioner in a
colloquy to determine whether his guilty plea was
"freely, intelligently, and voluntarily entered
into." Petitioner provided the following factual basis
for the plea: he assisted his co-defendants in entering the
victim's apartment, beating the victim, and taking money
and drugs from the victim's apartment. At the close of
the hearing, the circuit court accepted the plea agreement.
On May 25, 2016, petitioner filed a motion to withdraw his
guilty plea. Petitioner argued that he changed his mind
regarding his guilty plea, made the "wrong decision
under the pressure of trial preparation, " had no
previous criminal record, and had a "potential
defense" to the first-degree robbery charge. On May 26,
2016, the circuit court held a sentencing hearing wherein it
denied petitioner's motion to withdraw his guilty plea;
petitioner did not testify at the sentencing hearing. The
circuit court concluded that petitioner failed to provide any
additional evidence in support of his motion to withdraw and
that petitioner's age, criminal record, and role in the
crime had been addressed previously at the plea hearing. The
circuit court sentenced petitioner to a fifty-year term of
incarceration by order entered on May 27, 2016. It is from
this order that petitioner appeals.
previously held that
[n]otwithstanding that a defendant is to be given a more
liberal consideration in seeking leave to withdraw a plea
before sentencing, it remains clear that a defendant has no
absolute right to withdraw a guilty plea before sentencing.
Moreover, a trial court's decision on a motion under Rule
32(d) of the West Virginia Rules of Criminal Procedure will
be disturbed only if the court has abused its discretion.
Syl. Pt. 2, Duncil v. Kaufman, 183 W.Va. 175, 394
S.E.2d 870 (1990).
appeal, petitioner argues that pleading guilty to
first-degree robbery was the wrong decision. He contends that
he should be permitted to withdraw his guilty plea because he
was young, had no criminal history, and had a potential
defense to the crime. We disagree. Rule 32(e) of the West
Virginia Rule of Criminal Procedure provides that "[i]f
a motion for withdrawal of a plea of guilty . . . is made
before sentence is imposed, the court may permit withdrawal
of the plea if the defendant shows any fair and just
reason." We have also previously articulated the factors
for the circuit court to consider when a defendant moves to
withdraw a guilty plea before sentencing:
A mere declaration of innocence does not entitle a defendant
to withdraw his guilty plea. The general rule is that in the
exercise of its discretion to permit withdrawal of a guilty
plea before sentencing based on a defendant's assertion
of innocence, a trial court should consider the length of
time between the entry of the guilty plea and the filing of
the motion to withdraw, why the grounds for withdrawal were
not presented to the court at an earlier point in the
proceedings, whether the defendant maintained his innocence
throughout the plea proceedings, whether the State's case
will be prejudiced, and whether the defendant has articulated
some ground in support of his claim of innocence.
Id. at 176, 394 S.E.2d at 871. Here, petitioner
based his motion, in part, upon his alleged innocence,
claiming he had a "potential defense" to the crime
charged. However, upon a review of the record, this Court
finds that the circuit court did not abuse its discretion in
this matter. The record in this proceeding supports the
circuit court's order denying petitioner's motion.
Contrary to petitioner's argument that he had a potential
defense to the first-degree robbery, petitioner admitted in
his plea colloquy that he participated in the robbery.
Further, petitioner offered no additional evidence in support
of his innocence or his motion. The circuit court advised
petitioner that he must articulate a fair and just reason in
order for it to consider his motion to withdraw. However, it
is clear from the record that petitioner chose not to testify
and failed to articulate any further basis for his motion.
Accordingly, the circuit court correctly found that, absent
some additional evidence, petitioner made a fully-informed
decision to plead guilty. Therefore, petitioner failed to
provide a fair and just reason for his plea to be withdrawn.
foregoing reasons, we find no error in the decision of the
circuit court, and its May 27, ...