Gilmer
County 15-F-11
MEMORANDUM DECISION
Petitioner
Gary Paul Ferrell, by counsel Andrew Chattin, appeals the
Circuit Court of Gilmer County's April 4, 2016, order
denying his motion to withdraw his guilty plea. Respondent
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 because he provided a fair and just reason for
the withdrawal.
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.
On July
7, 2015, petitioner was indicted on one count of failure to
re-register as a sex offender upon release from incarceration
and one count of failure to provide sex offender registration
change of information. On January 5, 2016, the parties
appeared for trial. During the trial, however, the parties
announced to the circuit court that they wished to enter into
a plea agreement. Petitioner agreed to plead guilty to
failure to re-register upon release from incarceration, and,
in return, the State agreed to dismiss the remaining count.
The State also agreed to join petitioner in recommending
probation at sentencing. The circuit court accepted
petitioner's plea, and he was adjudicated guilty.
On
February 10, 2016, petitioner filed with the circuit court a
pro se letter, which the court deemed to be a motion to
withdraw his guilty plea. Petitioner stated in his motion
that his attorney had informed him that his plea could be
withdrawn prior to sentencing. He also criticized his
attorney for failing to call certain witnesses for trial. On
February 22, 2016, petitioner appeared for sentencing, at
which time petitioner informed the circuit court that his
plea had been "coerced." Petitioner also informed
the circuit court that he no longer wished to plead guilty,
and reiterated that he had been informed that he could
withdraw his plea before sentencing. On the record, the
circuit court found that petitioner had entered his plea
freely, knowingly, voluntarily, intelligently, and with the
assistance of counsel; however, no order reflecting this
ruling was entered. The circuit court proceeded to sentence
petitioner.[1]
Petitioner
filed a second pro se letter requesting to withdraw his
guilty plea on March 3, 2016. On March 17, 2016, the parties
appeared before the circuit court for a hearing on
petitioner's motion. The circuit court again found that
petitioner's plea was entered knowingly and voluntarily,
and denied his motion to withdraw his plea. This ruling was
memorialized in the circuit court's April 4, 2016,
"Order Denying Defendant's Motion to Rescind
Plea." It is from this order that petitioner
appeals.[2]
Petitioner
asserts on appeal that he provided a fair and just reason for
withdrawing his plea. Namely, he claims that he was informed
by trial counsel that he would be allowed to withdraw his
plea before sentencing, if, after reviewing additional
evidence, he no longer believed himself to be guilty of the
crime charged. Petitioner contends that this misinformation
amounted to coercion to enter his plea. He also argues that
his trial counsel failed to subpoena the proper witnesses for
trial and failed to present certain evidence.
West
Virginia Rule of Criminal Procedure 32(e) provides that
"[i]f a motion for withdrawal of a plea of guilty or
nolo contendere is made before sentence is imposed, the court
may permit withdrawal of the plea if the defendant shows any
fair and just reason." In addition, we have 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([e]) 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, 176,
394 S.E.2d 870, 871 (1990).
Petitioner's
first contention, that he was advised that he would be
allowed to withdraw his plea before sentencing, is belied by
the record. At petitioner's plea hearing, he asked the
circuit court, "[w]ell, if I come up with the form
[showing he registered upon release from incarceration] later
on can this be, before sentencing, can something be
done?" The circuit court specifically informed him that
"once you enter this plea of guilty, it's final.
Okay." The circuit court continued, "[y]ou
understand that once you plead guilty here you can't take
it back?" Petitioner replied, "[y]es, sir."
Again, the circuit court asked petitioner, "[y]ou
understand that if I accept it, again, you can't take it
back?" Petitioner answered, "[y]es, Your
Honor." Thus, it is clear that, at the time he entered
the plea, petitioner was informed no less than three times
that he would not be permitted to withdraw his plea, and that
petitioner understood the circuit court's statements on
this issue.
Petitioner
was also asked at the plea hearing whether there were
"any promises made to you other than what's
contained in the plea-bargain agreement and stated in open
court here on the record?" He replied, "[n]o."
The circuit court asked whether "anyone threatened you,
threatened your family, placed you in fear, placed your
family in fear to get you to enter this plea?" He
responded, "[n]o, sir." Petitioner further
acknowledged that no one told him that he had to enter his
plea. In sum, petitioner's contentions that he was
coerced into entering his guilty plea and that he was
informed that he could withdraw his guilty plea prior to
sentencing are flatly contradicted by the record. We find
that the circuit court did not abuse its discretion in
denying petitioner's request to withdraw his guilty plea
on this ground.
With
respect to petitioner's contention that his trial counsel
failed to present certain evidence and subpoena certain
witnesses, we note first that petitioner, following the start
of trial, elected to waive his right to a jury trial and
enter a plea. To the extent petitioner contends that trial
counsel's alleged failure to properly prepare for trial
forced him into entering his plea, the record does not
support this contention. The record also reflects that
petitioner indicated that he was satisfied with the legal
representation he received:
THE COURT: And, Mr. Ferrell, you're represented by Mr.
Timothy Gentilozzi. Are you satisfied with the manner in
which Mr. ...