Berkeley County 18-F-197
Kenneth Andrew Rogers, II, by counsel Matthew T. Yanni,
appeals the order of the Circuit Court of Berkeley County,
entered on October 14, 2018, accepting petitioner's plea
of "no contest" to felony embezzlement and
sentencing him to imprisonment for a term of one to ten years
in the West Virginia State Penitentiary. Respondent State of
West Virginia appears by counsel Patrick Morrisey and
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.
Rogers was indicted in May of 2018 on charges of embezzlement
and petit larceny arising from the theft of $5, 400 from his
employer ("the victim"). He entered into an
agreement with the State wherein he agreed to plead no
contest to embezzlement in exchange for the State's
agreement to not seek post-conviction bail. The agreement
further provided the State's assurance that it would
recommend that Mr. Rogers receive a suspended sentence and be
placed on probation if Mr. Rogers complied with the terms of
his pretrial supervision. The agreement also provided that
"[i]f the [d]efendant should violate any terms of his
bond or commit any new criminal conduct prior to [s]entencing
before the [c]ircuit [c]ourt, this agreement shall be
voidable at the State's discretion."
State filed a motion to revoke petitioner's bail in
September of 2018, on the ground that petitioner harassed the
victim. The circuit court conducted a hearing on the motion
on October 2, 2018. The State requested that it be relieved
of its agreement to recommend the suspended sentence.
Petitioner's counsel responded, "My request is that
we have a hearing on the motion to revoke bail and if the
[c]ourt believes that the State has satisfied its burden then
at that time it could relieve the State of its burden."
The court agreed and proceeded to take evidence.
Petitioner's former employer, the victim, testified that
petitioner and his co-defendant had been driving "past
[his] business hollering obscene things[, ] vulgar
language" at him, and that petitioner directed similar
behavior at the victim's wife. The victim testified,
"He's also made numerous phone calls to friends and
family members of his contacting me and saying different
vulgar things back and forth." Specifically, he
testified that petitioner yelled, "[T]ry to prove that I
stole your money bag and all kind of stuff. Just calling me
M-F'er and all kinds of vulgar language." The
circuit court found that the victim's testimony was
credible and that it established that petitioner violated the
provision of his bond requiring that he have no contact with
circuit court conducted a plea hearing on October 15, 2018.
Petitioner's counsel indicated that petitioner wished to
go forward with his plea of no contest, and he affirmed that
there was "nothing binding" on the circuit court
with regard to sentencing. The court accepted the plea and
immediately proceeded to sentence petitioner. The court found
that petitioner was not suitable for a suspended sentence or
home confinement and sentenced him to serve a term of
imprisonment for one to ten years for his conviction of
appeals the circuit court's judgment and sentencing
orders. He assigns error, first, to the asserted failure of
the circuit court to recognize that the State breached the
plea agreement when it did not recommend that Mr. Rogers be
placed on probation and, second, that the circuit court
abused its discretion in allowing the State to
"withdraw" a recommendation of probation. Each
assignment of error calls into question the State's
responsibilities concerning its agreement with petitioner,
and we therefore review the assignments of error according to
the following standard:
"Cases involving plea agreements allegedly breached by
either the prosecution or the circuit court present two
separate issues for appellate consideration: one factual and
the other legal. First, the factual findings that undergird a
circuit court's ultimate determination are reviewed only
for clear error. These are the factual questions as to what
the terms of the agreement were and what was the conduct of
the defendant, prosecution, and the circuit court. If
disputed, the factual questions are to be resolved initially
by the circuit court, and these factual determinations are
reviewed under the clearly erroneous standard. Second, in
contrast, the circuit court's articulation and
application of legal principles is scrutinized under a less
deferential standard. It is a legal question whether specific
conduct complained about breached the plea agreement.
Therefore, whether the disputed conduct constitutes a breach
is a question of law that is reviewed de novo."
Syllabus Point 1, State ex rel. Brewer v. Starcher,
195 W.Va. 185, 465 S.E.2d 185 (1995).
Pt. 1, State v. Martin, 225 W.Va. 408, 693 S.E.2d
support of his assignments of error, petitioner briefly sets
forth various legal precepts concerning the parties'
duties relative to a plea agreement. He makes no effort,
however, to apply those precepts to the facts before us.
Petitioner having made no effort to demonstrate that the
court reached unreachable conclusions concerning
petitioner's contact with the victim, we find no error in
the circuit court's conclusion that petitioner's
overtures toward the victim violated his agreement with the
State, thus freeing the State of its obligations thereunder.
Petitioner chose to proceed in entering his plea of guilty
with this knowledge. "A guilty plea based on competent
advice of counsel represents a serious admission of factual
guilt, and where an adequate record is made to show it was
voluntarily and intelligently entered, it will not be set
aside." Syl. Pt. 3, State ex rel. Burton v.
Whyte, 163 W.Va. 276, 256 S.E.2d 424 (1979). We thus
find no reason to set aside petitioner's plea. `
foregoing reasons, we affirm.
CONCURRED IN BY: Chief Justice Tim Armstead, Justice Margaret
L. Workman, Justice Elizabeth D. Walker, Justice Evan ...