STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

State of West Virginia, FILED 

Plaintiff Below, Respondent September 3, 2013 

RORY L. PERRY II, CLERK 

vs) No. 12-1000 (Berkeley County 11-F-120) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Tirrell A. Morton, 

Defendant Below, Petitioner 

MEMORANDUM DECISION 

Petitioner’s appeal, by counsel Duane C. Rosenlieb, arises from an order entered 

September 7, 2012, in the Circuit Court of Berkeley County, wherein he was sentenced to 

a determinate term of twenty years of incarceration to be served concurrently with a sentence 

of five to eighteen years of incarceration. This sentence followed petitioner’s conviction, based 

upon a plea bargain, for one count of first degree robbery and one count of second degree 

robbery. The State, by counsel Christopher C. Quasebarth, has filed its response. On appeal, 

petitioner argues the circuit court erred in denying his motion to withdraw his plea or, in the 

alternative, to find that the plea was not entered voluntarily, knowingly, and intelligently, and 

was therefore invalid. 

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 is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

In May of 2011, petitioner was indicted on charges of first and second degree robbery. On 

June 8, 2012, three days prior to petitioner’s trial date, his trial counsel moved to withdraw from 

further representation, citing “a complete breakdown in communication” with petitioner, among 

other grounds. After a hearing on that date, the circuit court denied the motion by order entered 

July 3, 2012. On June 11, 2012, petitioner entered into a plea agreement wherein he would enter 

an Alford1 guilty plea in exchange for the determinate sentence of twenty years in the penitentiary 

and five to eighteen years in the penitentiary to run concurrently. At the hearing to enter the plea 

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North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970). Under Alford, “[a]n accused 

may voluntarily, knowingly and understandingly consent to the imposition of a prison sentence 

even though he is unwilling to admit participation in the crime, if he intelligently concludes that 

his interests require a guilty plea and the record supports the conclusion that a jury could convict 

him.” Kennedy v. Frazier, 178 W.Va. 10, 12, 357 S.E.2d 43, 45 (1987). 

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deal, the circuit court asked petitioner and his counsel a series of questions, including the 

following: 

THE COURT: Do you understand you have the right to ask the Court to order that
 

any confessions or property illegally obtained or seized cannot be used against
 

you at trial?
 

MR. MORTON: Yes, sir. . . .
 

THE COURT: Do you understand that if you persist in your decision to plead
 

guilty that you will be giving up all of these rights?
 

MR. MORTON: Yes, sir. . . .
 

THE COURT: Okay. Mr. Morton, you have been represented by Mr. Lambert
 

who is here with you today; have you discussed fully with him your case and
 

explained everything you know about it?
 

MR. MORTON: Yes, sir.
 

THE COURT: Has your attorney discussed with you the defenses that might be
 

available to the charge and given you the benefit of advice?
 

MR. MORTON: Yes, sir.
 

THE COURT: Are you satisfied with his representation of you in this matter?
 

MR. MORTON: Yes, sir. . . .
 

THE COURT: Mr. Lambert, do you believe that Mr. Morton understands his
 

rights, consequences of his plea; and that he voluntarily, intelligently, knowingly,
 

and freely enters his plea today?
 

MR. LAMBERT: Yes, Your Honor.
 

THE COURT: Do you believe that the entry of the plea today is in the best
 

interest of your client?
 

MR. LAMBERT: Yes, Your Honor.
 

THE COURT: Mr. Morton, do you agree with what Mr. Lambert has just told
 

me?
 

MR. MORTON: Yes, sir.
 

The State agreed not to file a recidivist action for this offense. On July 21, 2012, petitioner filed a 

pro se motion for an emergency hearing, seeking to hold a hearing on evidence suppression. On 

August 3, 2012, petitioner filed a pro se motion to withdraw his previously entered guilty plea. 

On August 9, 2012, at the previously scheduled sentencing hearing, the circuit court denied 

petitioner’s motion to withdraw his plea and his motion for an emergency hearing, and sentenced 

him to a determinate term of twenty years of incarceration to be served concurrently with a 

sentence of five to eighteen years of incarceration. Petitioner asserts that he should have been 

permitted to withdraw his plea of guilty because he did not understand the rights he waived by 

doing so. 

A circuit court’s decision to deny a motion to withdraw a plea is reviewed for abuse of 

discretion. Syl. Pt. 2, Duncil v. Kaufman, 183 W.Va. 175, 394 S.E.2d 870 (1990). A circuit court 

“may permit withdrawal of [a guilty] plea if the defendant shows any fair and just reason.” W.Va. 

R. Crim. P. 32(e). To permit a withdrawal of a guilty plea based on an assertion of innocence, a 

trial court should consider 

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the length of time between the entry of the guilty plea and the filing of the motion 

to withdraw[,] . . . why the grounds for withdrawal were not presented to the court 

at an earlier point in the proceedings[,] and . . . whether the defendant maintained 

his innocence throughout the plea proceedings. 

Id. at 179. 

“‘If the State will suffer substantial prejudice if the guilty plea is withdrawn prior 

to the time the sentence is imposed, this is a limiting factor which the court should 

consider in determining whether to grant the motion to withdraw the guilty plea.’ 

Syllabus Point 3, State v. Olish, 164 W.Va. 712, 266 S.E.2d 134 (1980).” Syl. pt. 

2, State v. Harlow, 176 W.Va. 559, 346 S.E.2d 350 (1986) 

Syl. Pt. 2, State v. Huff, 180 W.Va. 75, 375 S.E.2d 438 (1988). 

Before a guilty plea will be set aside based on the fact that the defendant was 

incompetently advised, it must be shown that (1) counsel did act incompetently; 

(2) the incompetency must relate to a matter which would have substantially 

affected the fact-finding process if the case had proceeded to trial; (3) the guilty 

plea must have been motivated by this error. Syllabus Point 3, State v. Sims, 162 

W.Va. 212, 248 S.E.2d 834 (1978). 

Syl. Pt. 5, Duncil v. Kauffman, 183 W.Va. 175, 394 S.E.2d 870 (1990). 

Contrary to petitioner’s argument that he did not understand the rights he was waiving by 

entering into a plea bargain, at the plea bargain hearing petitioner clearly stated that he understood 

he was waiving his right to protest evidence, among other rights; that the plea was in his best 

interest and freely entered; and that he fully discussed the case with his trial counsel. Therefore, 

petitioner failed to provide a “fair and just reason” for his plea to be withdrawn, and we hold that 

the circuit court did not abuse its discretion in denying petitioner’s motion to withdraw his plea. 

Additionally, despite petitioner’s argument that there was a breakdown in communication so 

severe that he could not have voluntarily, knowingly, and intelligently entered into the plea 

bargain, he offers no evidence that counsel acted incompetently. We find that the circuit court did 

not abuse its discretion in finding that petitioner knowingly, voluntarily, and intelligently entered 

his plea bargain. Therefore, the circuit court’s sentencing order is hereby affirmed. 

Affirmed. 

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ISSUED: September 3, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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