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Harry W. v. Murphy

Supreme Court of West Virginia

November 17, 2017

Harry W. Jr., Petitioner Below, Petitioner
v.
John T. Murphy, Warden, Huttonsville Correctional Center, Respondent Below, Respondent

         Hampshire County 16-C-95

          MEMORANDUM DECISION

         Petitioner Harry W. Jr., [1] pro se, appeals the December 13, 2016, order of the Circuit Court of Hampshire County denying his petition for a writ of habeas corpus. Respondent Marvin Plumley, Warden, Huttonsville Correctional Center, by counsel Robert L. Hogan, filed a summary response in support of the circuit court's order. Petitioner filed a reply.

         The 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.

         Petitioner was indicted by the Hampshire County grand jury on May 13, 2013, on three counts of sexual assault in the first degree; eight counts of sexual abuse in the first degree; and three counts of sexual abuse by a person in a position of trust to a child. On November 14, 2013, pursuant to a plea agreement, petitioner pled guilty to eight counts of sexual abuse in the first degree, and the remaining charges in the indictment were dismissed.

         Petitioner's plea agreement was binding on the circuit court insofar as it limited the circuit court's ability to run petitioner's sentences consecutively with regard to no more than five of the eight counts to which he pled guilty. Otherwise, sentencing was at the discretion of the circuit court.

         Under the plea agreement, petitioner was free to argue for probation or that his sentences should run concurrently. However, at the November 14, 2013, plea hearing, the circuit court made clear to petitioner that whether he received probation was solely at the court's discretion. Moreover, as a part of the plea colloquy, [2] the circuit court questioned petitioner whether he was promised anything in exchange for his guilty pleas that was not included in the plea agreement:

THE COURT: All right. Are you entering this plea today freely, voluntarily, and of your own free will?
THE DEFENDANT: Yes, sir.
THE COURT: Did anyone pressure or intimidate you to enter this plea?
THE DEFENDANT: No, sir.
THE COURT: Did anyone promise you anything in exchange for entering this plea?
THE DEFENDANT: No, sir.

         The circuit court also asked petitioner if he had any complaints about his trial attorney. Petitioner responded, "No, sir." Petitioner informed the circuit court that his trial attorney did "a good job" for him. The circuit court also discussed with petitioner the constitutional rights that he would be giving up by pleading guilty. Finally, the circuit court explained to petitioner the purpose of a plea colloquy-using probation as an example-as follows:

THE COURT: And[, ] that's why we're going through all of these questions and answers so that you don't come back later and say, well, I didn't understand or I didn't do this, I thought the [j]udge ...

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