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State v. Hess

Supreme Court of West Virginia

November 21, 2018

State of West Virginia, Plaintiff Below, Respondent
v.
Nicholas Clinton Hess, Defendant Below, Petitioner

          Jefferson County 16-F-89 and 16-F-114

          MEMORANDUM DECISION

         Petitioner Nicholas Clinton Hess, by counsel Ben J. Crawley-Woods, appeals the Circuit Court of Jefferson County's October 31, 2017, sentencing order following his first-degree robbery convictions.[1] Respondent State of West Virginia, by counsel Robert L. Hogan, filed a response. On appeal, petitioner asserts that the circuit court committed reversible error in finding that his guilty plea was voluntarily entered, in sentencing him to thirty years of imprisonment, and in denying his motion to release his diagnostic evaluation report.

         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 September 20, 2016, petitioner was indicted on one count each of first-degree robbery, burglary, assault during the commission of a felony, and conspiracy to commit robbery following his first-degree robbery of Kory Farmer on March 14, 2016. The next day, September 21, 2016, petitioner and Jamar Wayne McDonald were indicted in a separate case on one count each of first-degree robbery, burglary, assault during the commission of a felony, and conspiracy to commit robbery. These charges stemmed from the first-degree robbery of Allen Tolliver. Petitioner robbed Mr. Tolliver only two days after robbing Mr. Farmer. In fact, petitioner used a gun to commit the second robbery that he stole from Mr. Farmer during the first robbery.

         The circuit court held a pretrial conference on December 12, 2016, at which petitioner's counsel noted, for the record, that petitioner had that day received a plea offer from the State. Under the terms of the offer, petitioner would plead guilty to each first-degree robbery charge and be sentenced to concurrent thirty-year terms of incarceration. The remaining charges would be dismissed, and the State would further agree not to initiate recidivist proceedings. The court asked petitioner whether that was the agreement counsel just received and whether petitioner had seen it. Petitioner responded, "Yeah, what I was told was [twenty] from the beginning." The court provided petitioner time to consider the agreement with his counsel and instructed the parties to appear the following week to either proceed with trial or enter into the plea agreement. Petitioner then stated, "Well, I would like to ask if the State could appoint me new counsel at this time please." Because petitioner's counsel only then learned of petitioner's dissatisfaction, and because the court did not "have a motion before me except an oral motion right now[, ]" the court deferred consideration of that motion until the following week when the parties could reappear to discuss the plea negotiations.[2] The court further invited petitioner to reduce his oral motion to writing.

         On December 19, 2016, the parties appeared before the court and announced that a plea agreement had been reached, with slightly different terms than those announced on December 12, 2016. Namely, petitioner agreed to plead guilty to both first-degree robbery charges, but the State agreed that the sentence for each would be no more than thirty years, and petitioner was free to argue for a lesser term of incarceration.[3] The terms of the agreement were placed on the record, and the court explained to petitioner that the terms of the agreement included a sentencing cap of concurrent thirty-year terms, but that the minimum sentence was ten years. Petitioner confirmed that he understood these terms.

         Before accepting petitioner's plea, the court asked petitioner whether he had "done [his] level best to make sure that [his attorney] understands everything that can help him be an effective lawyer for you?" Petitioner responded in the affirmative. Further, the court asked petitioner whether his lawyer has

done what you hope and expect a good lawyer would do, has he spent time actually visiting with you, sat down and talked with you and listened to you and talked about the discovery and the strength of the State's case and about the defenses and the strategies that you might have available to you at trial, basically given you the benefit of his advice?

         Petitioner responded, "Yes, Your Honor." Petitioner also confirmed that no one had "promised or suggested that [he] would be rewarded in any fashion, other than the plea agreement, if [he came] in here to plead guilty."

Further, the court advised petitioner of the rights he would waive if he pled guilty. Petitioner entered his guilty plea, nonetheless, and executed a written plea form. Thereafter, the circuit court again ensured that the plea was voluntarily, knowingly, and intelligently entered:
Now, I make a big deal about you can't change your mind and then the very next thing I do every time is ask, are you sure you don't want to change your mind.
I am not trying to torment you, I do this in every case, but are you sure, we have gone over a lot of constitutional rights, and if you listen to them closely they are a beautiful bunch of rights when you're charged with an offense.
If what you really would like to do is have your day in court to come in and see if the State could prove what they claim against you, I would do my dead level best to make sure you got a full, fair and proper trial, the benefit of all those constitutional rights. And if you got convicted and you ended up going down and being convicted and sentenced on it, you have the right to appeal to the West Virginia Supreme Court of Appeals and make sure they thought you got a full, fair and proper trial. These are valuable rights. Are you sure you want to give up all those rights and stand upon this plea, [petitioner]?

         Petitioner again replied, "Yes, Your Honor." The court, therefore, accepted petitioner's plea and adjudged him guilty of ...


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