Brandon Fitzpatrick, by counsel Susan J. Van Zant, appeals
the order of the Circuit Court of Mingo County, entered on
February 27, 2018, sentencing him to a term of life
imprisonment, with mercy, upon his plea of guilty to
first-degree felony murder. Respondent State of West Virginia
appears by counsel Patrick Morrisey and Shannon Frederick
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 order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.
Fitzpatrick was indicted in the Circuit Court of Mingo County
in 2017 on one count of first-degree robbery, one count of
first-degree murder, one count of conspiracy to commit
first-degree robbery, and one count of conspiracy to commit
murder, all related to his role in the death of Bennett
Hatfield. Mr. Fitzpatrick was found guilty in a bifurcated
jury trial of felony murder and conspiracy to commit
first-degree robbery, but he was found not guilty of robbery.
Prior to the mercy phase of trial, Mr. Fitzpatrick moved for
a mistrial on the ground that conspiracy is not a predicate
offense to support a felony murder charge. The circuit court
denied the motion for a mistrial. Immediately thereafter, Mr.
Fitzpatrick and the State entered into a post-verdict plea
agreement, citing Mr. Fitzpatrick's desire that the State
recommend that the court grant mercy.
the plea colloquy, Mr. Fitzpatrick acknowledged that he had
discussed his plea agreement with counsel, that he understood
the agreement, and that he entered it willingly. In
allocution, Mr. Fitzpatrick recounted that he and his
co-defendant, Anthony Arriaga, followed a Ford Mustang into a
cemetery in Mingo County on May 22, 2016, intending to
"car-jack" it. Upon turning into the cemetery,
however, the two men saw Mr. Hatfield's black GMC Denali.
Mr. Fitzpatrick and Mr. Arriaga approached Mr. Hatfield and,
according to Mr. Fitzpatrick, Mr. Arriaga shot Mr. Hatfield.
The two men left Mr. Hatfield to die. They fled the cemetery
separately and later reunited in Wayne County.
circuit court accepted Mr. Fitzpatrick's plea. Mr.
Fitzpatrick thereafter moved the court to set aside the plea
and grant a new trial. The circuit court denied the motion
and sentenced Mr. Fitzpatrick to a term of life imprisonment,
with mercy. On appeal, petitioner advances twelve
arguments. Of these, however, eleven address
circumstances characterized as error in trial procedure.
Petitioner, as stated above, entered a post-trial plea of
guilty, thereby waiving "all pre-trial defects with
regard to his arrest, the gathering of evidence, prior
confessions, etc., and further . . . all non-jurisdictional
defects in the criminal proceeding." Call v.
McKenzie, 159 W.Va. 191, 198, 220 S.E.2d 665, 671
(1975). We have no reservation in this determination,
inasmuch as petitioner has not argued that he lacked
understanding in the entry of his plea.
sole argument petitioner offers concerning the entry of his
plea-and the only argument we here consider, in light of the
above-referenced waiver arising from the entry of the plea-is
remarkably thin. He states only:
Due to the inconsistent Verdict and dismissal of the jury, an
attempted plea was entered. However, the Plea forms have
never been completed and defendant has voiced his desire to
withdraw his plea. The [c]ircuit [c]ourt accepted the Plea
even though Brendan Fitzpatrick refused to complete the
required Plea forms. When threatened with recalling a jury
that had previously been dismissed to determine mercy or no
mercy, Brandon Fitzpatrick took a plea after enduring a
nearly twelve (12) hour day of trial.
brief does not contain a single citation to the portion of
the appendix record on appeal containing the circuit
court's plea hearing. There is no citation explaining the
circumstances under which Mr. Fitzpatrick "voiced his
desire to withdraw his plea" or supporting the statement
that he "refused to complete the required forms."
Moreover, petitioner has cited no legal authority that would
elevate a signed form over the substance of a plea entered
after a thorough colloquy with a criminal defendant. In an
Administrative Order entered on December 10, 2012, Re:
Filings That Do Not Comply With the Rules of Appellate
Procedure, the then-Chief Justice of this Court specifically
noted in paragraph 7 that
[b]riefs with arguments that do not contain a citation to
legal authority to support the argument presented and do not
'contain appropriate and specific citations to the record
on appeal, including citations that pinpoint when and how the
issues in the assignments of error were presented to the
lower tribunal' as required by rule 10(c)(7)
are not in compliance with this Court's rules. Petitioner
has failed to present this Court with a brief that meets
these standards. Having independently reviewed the plea
colloquy in the appendix record on appeal, however, we find
naught that would call the validity of the plea into
question. There is thus no error.
foregoing reasons, we affirm.
CONCURRED IN BY: Chief Justice Tim Armstead Justice Margaret
L. Workman Justice Elizabeth D. Walker Justice Evan ...