____________________________________________________________ 

 

 

 

____________________________________________________________ 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA 

January 2015 Term 

_______________ FILED 

April 9, 2015 

released at 3:00 p.m. No. 13-1123 RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

_______________ OF WEST VIRGINIA 

STATE OF WEST VIRGINIA,
 

Plaintiff Below, Respondent
 

v. 

KEITH D.,
 

Defendant Below, Petitioner
 

Appeal from the Circuit Court of Summers County
 

Honorable Robert A. Irons, Judge
 

Criminal Action Nos. 13-F-04 & 13-F-06
 

AFFIRMED
 

Submitted: February 4, 2015
 

Filed: April 9, 2015
 

Matthew D. Brummond, Esq. Patrick Morrisey, Esq. 

Deputy Public Defender Attorney General 

Office of the Public Defender Derek A. Knopp, Esq. 

Kanawha County Assistant Attorney General 

Charleston, West Virginia Charleston, West Virginia 

Counsel for the Petitioner Counsel for the Respondent 

JUSTICE BENJAMIN delivered the Opinion of the Court. 

JUSTICE DAVIS and JUSTICE KETCHUM dissent and reserve the right to file 

dissenting opinions. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “Notwithstanding that a defendant is to be given a more liberal 

consideration in seeking leave to withdraw a plea before sentencing, it remains clear that 

a defendant has no absolute right to withdraw a guilty plea before sentencing. Moreover, 

a trial court’s decision on a motion under Rule 32(d) of the West Virginia Rules of 

Criminal Procedure will be disturbed only if the court has abused its discretion.” Syl. pt. 

2, Duncil v. Kaufman, 183 W. Va. 175, 394 S.E.2d 870 (1990). 

2. “Rule 32(d) of the West Virginia Rules of Criminal Procedure as it 

relates to the right to withdraw a guilty or nolo contendere plea prior to sentence permits 

the withdrawal of a plea for ‘any fair and just reason.’” Syl. pt. 1, State v. Harlow, 176 

W. Va. 559, 346 S.E.2d 350 (1986). 

3. “Habitual criminal proceedings providing for enhanced or additional 

punishment on proof of one or more prior convictions are wholly statutory. In such 

proceedings, a court has no inherent or common law power or jurisdiction.” Syl. pt. 2, in 

part, Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981). 

4. “The words ‘duly cautioned’ contained in the West Virginia 

recidivist statute, Code, 61-11-19, as amended, with regard to former convictions and 

sentences before a valid judgment can be imposed for an additional sentence as provided 

i 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

in Code, 61-11-18, as amended, are fully complied with when the accused, after being 

convicted of the substantive offense and before being sentenced thereon, is later brought 

before the court in the same term and advised that the prosecuting attorney has filed a 

written information informing the court of former convictions and sentences; and the 

court then proceeds to advise the accused of the nature of each former offense and of the 

time and place of each former sentence, and then after giving the accused an opportunity 

to say whether he has any defense thereto, asks him if he is the same person as was 

formerly convicted and sentenced. If he answers in the affirmative, appropriate sentence 

may be pronounced in accordance with the statute.” Syl. pt. 4, State ex rel. Mounts v. 

Boles, Warden, 147 W. Va. 152, 126 S.E.2d 393 (1962). 

5. “A person convicted of a felony may not be sentenced pursuant to 

W. Va. Code, 61-11-18, - 19 [1943], unless a recidivist information and any or all 

material amendments thereto as to the person’s prior conviction or convictions are filed 

by the prosecuting attorney with the court before expiration of the term at which such 

person was convicted, so that such person is confronted with the facts charged in the 

entire information, including any or all material amendments thereto. W. Va. Code, 61­

11-19 [1943].” Syl. pt. 1, State v. Cain, 178 W. Va. 353, 359 S.E.2d 581 (1987). 

ii 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Benjamin, Justice: 

The defendant below and petitioner herein, Keith D., appeals the October 

18, 2013, order of the Circuit Court of Summers County that sentenced him as a habitual 

offender to a prison term of life with mercy. After consideration of the assignment of 

error raised by the petitioner, we affirm the circuit court’s order.1 

I. FACTUAL AND PROCEDURAL BACKGROUND 

Petitioner Keith D. was charged in a fourteen-count indictment with sex 

crimes involving his five-year-old stepdaughter.2 By a separate indictment, the petitioner 

also was charged with possession of a firearm by a prohibited person, i.e., a felon. The 

indictment charging the petitioner with possession of a firearm by a prohibited person 

stated that the petitioner had been convicted of voluntary manslaughter in 2004 in Cabell 

County. 

The petitioner entered into a plea agreement with the State in which he pled 

guilty to one count of sexual assault in the third degree and to possession of a firearm by 

a prohibited person. In return, the State dismissed the remaining counts in the indictment 

1 We wish to commend counsel for both parties for their preparation and excellent 

oral arguments before this Court. 

2 Because this case involves a minor victim of sex crimes who is related to the 

petitioner, we use only the petitioner’s first name and last initial consistent with our 

practice in cases involving minors and sensitive facts. See State ex rel. Dept. of H. S. v. 

Cheryl M., 177 W. Va. 688, 689 n.1, 356 S.E.2d 181, 182 n.1 (1987). 

1
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

alleging sex crimes against the petitioner’s stepdaughter and agreed to remain silent on 

the issue of sentencing. The petitioner’s guilty plea was taken by the circuit court in a 

July 19, 2013, hearing. During this hearing, the petitioner indicated that he wished to 

waive his right to a presentence report and asked that he be sentenced immediately. The 

prosecuting attorney opposed immediate sentencing stating her desire to delay sentencing 

until the victim’s mother could be present.3 Consequently, the circuit court set the 

sentencing hearing for August 2, 2013. 

On July 25, 2013, the State filed an information of prior convictions with 

the circuit court pursuant to W. Va. Code §§ 61-11-184 and 61-11-195 in which it alleged 

that the petitioner is the same person previously convicted of two prior felonies: grand 

larceny in November 1996 in the Circuit Court of Cabell County and voluntary 

manslaughter in February 2004 in the Circuit Court of Cabell County. The information 

requested that the petitioner be sentenced to the state correctional facility for life. 

3 According to the prosecuting attorney, the victim’s mother was not present at the 

hearing due to a medical emergency. 

4 According to W. Va. Code § 61-11-18(c) (2000), 

When it is determined, as provided in section nineteen 

of this article, that such person shall have been twice before 

convicted in the United States of a crime punishable by 

confinement in a penitentiary, the person shall be sentenced 

to be confined in the state correctional facility for life. 

5 The relevant portion of W. Va. Code § 61-11-19 (1943), is set forth in Part III of 

this Opinion. 

2
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Thereafter, the petitioner moved to withdraw his guilty plea pursuant to W. 

Va. R. Crim. P. 32(e)6 on the basis that at the time he accepted the State’s plea offer, he 

was not advised that his plea subjected him to a potential life sentence as a habitual 

offender. He also asserted that his counsel did not notify him that he could be sentenced 

as a habitual offender. The circuit court denied the petitioner’s motion to withdraw his 

guilty plea. A jury subsequently found the petitioner guilty of being a habitual offender 

and he was sentenced to life in prison. 

II. STANDARD OF REVIEW 

In this case, the petitioner argues that the circuit court erred in refusing to 

permit him to withdraw his guilty plea prior to sentencing. This Court has held: 

Notwithstanding that a defendant is to be given a more 

liberal consideration in seeking leave to withdraw a plea 

before sentencing, it remains clear that a defendant has no 

absolute right to withdraw a guilty plea before sentencing. 

Moreover, a trial court’s decision on a motion under Rule 

32(d) of the West Virginia Rules of Criminal Procedure will 

be disturbed only if the court has abused its discretion. 

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

abuses its discretion “if it bases its ruling on an erroneous assessment of the evidence or 

an erroneous view of the law.” Cox v. State, 194 W. Va. 210, 218 n.3, 460 S.E.2d 25, 33 

n.3 (1995). Accordingly, we are tasked with determining whether the circuit court abused 

its discretion when it denied the petitioner’s motion to withdraw his guilty plea. 

6 See infra Part III. 

3
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

III. ANALYSIS
 

The petitioner’s only assignment of error is that the circuit court erred in 

refusing to permit him to withdraw his guilty plea. According to Rule 32(e) of the West 

Virginia Rules of Criminal Procedure, in pertinent part, “[i]f a motion for withdrawal of a 

plea of guilty or nolo contendere is made before sentence is imposed, the court may 

permit withdrawal of the plea if the defendant shows any fair and just reason.” We 

previously have recognized that “Rule 32(d) of the West Virginia Rules of Criminal 

Procedure as it relates to the right to withdraw a guilty or nolo contendere plea prior to 

sentence permits the withdrawal of a plea for ‘any fair and just reason.’” Syl. pt. 1, State 

v. Harlow, 176 W. Va. 559, 346 S.E.2d 350 (1986).7 

The crux of the petitioner’s argument is that he has shown a fair and just 

reason for withdrawing his guilty plea: he did not know the State could seek a habitual 

offender sentence after he pled guilty with the understanding that he could receive no 

more than ten years in prison. For the following reasons, we find no merit to this 

argument. 

The issue in this case is governed by this Court’s decision in State ex rel. 

Appleby v. Recht, 213 W. Va. 503, 583 S.E.2d 800 (2002). In Appleby, the petitioner, Mr. 

Appleby, pled guilty to both counts in the indictment against him: driving under the 

7 At the time that Harlow was decided, the portion of Rule 32 regarding the withdrawal 

of guilty and nolo contendere pleas was located at subsection (d) of that rule. 

4
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

influence (“DUI”), third offense, and driving while on a revoked license, third offense, 

for DUI. At the hearing in which Mr. Appleby entered his plea, the trial court advised 

him that the maximum term of imprisonment for each of the offenses to which he pled 

guilty was one to three years, and that because the sentences could be imposed 

consecutively, the maximum sentence he could receive was incarceration for a term of 

two to six years. The trial court did not indicate that the State could initiate a habitual 

offender proceeding. 

Thereafter, the State filed an information alleging that Mr. Appleby was a 

habitual offender in that he had three prior convictions for DUI, third offense, one 

unlawful assault conviction, and one felony conviction for driving on a revoked license 

for DUI, third offense. Mr. Appleby, if sentenced as a habitual offender, was subject to a 

life sentence with the opportunity for parole. The trial court denied Mr. Appleby’s motion 

to dismiss the habitual offender information. Mr. Appleby then sought relief in 

prohibition in this Court. 

Mr. Appleby argued before this Court that the trial court erred in, inter alia, 

not dismissing the habitual offender proceeding because when he pled guilty, the trial 

court informed him he would be facing only a maximum sentence of two to six years— 

not the possibility of a life sentence as a habitual offender. This Court rejected Mr. 

Appleby’s argument based on two points of law. First, this Court found that when a 

defendant pleads guilty, the trial court must make him aware of only the direct 

5
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

consequences of his plea; not the collateral consequences of his plea. Specifically, we 

stated as follows: 

The law is clear that a valid plea of guilty requires that 

the defendant be made aware of all “the direct consequences 

of his plea.” By the same token, it is equally well settled that, 

before pleading, the defendant need not be advised of all 

collateral consequences of his plea, or, as one Court has 

phrased it, of all “possible ancillary or consequential results 

which are peculiar to the individual and which may flow from 

a conviction of a plea of guilty, . . . .” 

Appleby, 213 W. Va. at 511, 583 S.E.2d at 808, quoting Cuthrell v. Director, Patuxent 

Inst., 475 F.2d 1364, 1365–66 (4th Cir. 1973) (citations omitted). Second, we determined 

that a habitual offender proceeding is a collateral consequence of a guilty plea, 

explaining: 

The distinction between “direct” and “collateral” 

consequences of a plea, while sometimes shaded in the 

relevant decisions, turns on whether the result represents a 

definite, immediate and largely automatic effect on the range 

of the defendant’s punishment. 

Under West Virginia Code §§ 61-11-18 & 19, the 

imposition of a life sentence is not definite, immediate and 

largely automatic. The State not only retains the discretion to 

decide when to pursue recidivist sentencing (or to decide not 

to so proceed), but the separate nature of the recidivist 

proceeding requires the State to satisfy a number of 

requirements such as: (1) filing a written information, (2) 

proving beyond a reasonable doubt that each penitentiary 

offense, including the principal penitentiary offense, was 

committed subsequent to each preceding conviction and 

sentence, and (3) proving beyond a reasonable doubt to the 

jury the identity of the defendant. . . . 

The possible significance of a guilty verdict for 

purposes of the habitual offender act is a classic example of a 

conviction’s consequences that is collateral in the sense that 

the consequence requires application of a legal provision 

6 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

extraneous to the definition of the criminal offense and the 

provisions for sentencing those convicted under it. 

Appleby, 213 W. Va. at 511–512, 583 S.E.2d at 808–809 (citations omitted) (internal 

quotation marks omitted) (ital. omitted). Thus, this Court concluded in Appleby that the 

constitution does not “require[] that a criminal defendant be advised of the possibility of 

habitual criminal proceedings prior to the entry of a guilty plea.” Id. at 512, 583 S.E.2d at 

809 (citation omitted). See also Gardner v. Ballard, No. 13-1301, 2014 WL 5546202, at 

* 3 (W. Va. Nov. 3, 2014) (memorandum decision) (concluding that “pursuant to 

Appleby, the circuit court had no duty to inform petitioner about a possible recidivist 

action because such an action was not a direct consequence of his guilty plea”). 

The petitioner sets forth several reasons why this Court should not apply 

Appleby to the facts of the instant case. First, the petitioner attempts to distinguish the 

facts of Appleby from those of the instant case. For example, the petitioner notes that 

Appleby was before this Court on a petition for a writ of prohibition instead of an appeal.8 

8 The petitioner also refers to a footnote in Appleby in which this Court indicated 

that the State informed the defendant of its intent to file a habitual offender information 

as early as a bond hearing. Specifically at Appleby, 213 W. Va. at 512 n.6, 583 S.E.2d at 

809 n.6, this Court indicated: 

We also note that the State says that it specifically 

informed Mr. Appleby’s trial counsel that, if he was 

convicted, the State would seek a recidivist sentence, and that 

discovery was apparently provided to Mr. Appleby that 

included a list of Mr. Appleby’s prior convictions. We 

additionally note that at a bond hearing on October 31, 2001, 

the Prosecuting Attorney told the trial judge, in the presence 

of Mr. Appleby and counsel, “I do not believe that two to six 

7 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

We see no merit in this argument. The distinguishing facts of Appleby 

relied on by the petitioner did not control our analysis in that case. Rather, our analysis 

and decision in Appleby was based on the rule that a criminal defendant does not have to 

be advised of the possibility of habitual criminal proceedings prior to the entry of a guilty 

plea because the filing of a habitual offender information is a collateral and not a direct 

consequence of a guilty plea. When we apply that rule of law from Appleby to the facts of 

this case, we conclude that the failure to inform the petitioner prior to his guilty plea that 

a habitual offender information may be filed against him does not constitute error. 

In a second challenge to the application of Appleby to the present case, the 

petitioner asserts that “the legal theory underlying the . . . Appleby decision[] has recently 

come under scrutiny and its continued validity is questionable[]” after the United States 

Supreme Court’s decision in Padilla v. Kentucky, 559 U.S. 356 (2010). The petitioner 

mischaracterizes Padilla. The Supreme Court’s holding in Padilla is that “counsel must 

inform her client whether his plea carries a risk of deportation.” Padilla, 559 U.S. at 374. 

This holding was based on the Supreme Court’s recognition that “recent changes in our 

is the maximum sentence he may be facing. And in fact, this 

Court has often indicated that DUI three is an act of violence, 

and I contend that there’s a possibility of a much steeper 

sentence. . . . 

The fact that this information is placed in a footnote means that it was not a factor in our 

analysis in Appleby. It is axiomatic that “language in a footnote generally should be 

considered obiter dicta which, by definition, is language ‘unnecessary to the decision in 

the case and therefore not precedential.’ Black’s Law Dictionary 1100 (7th ed. 1999).” 

State ex rel. Med. Assurance v. Recht, 213 W. Va. 457, 471, 583 S.E.2d 80, 94 (2003). 

8
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

immigration law have made removal nearly an automatic result for a broad class of 

noncitizen offenders[,]” id. at 366, so that “[d]eportation as a consequence of a criminal 

conviction is, because of its close connection to the criminal process, uniquely difficult to 

classify as either a direct or collateral consequence.” Id. Because the Supreme Court’s 

holding in Padilla deals specifically with deportation as a consequence of a guilty plea, 

Padilla does not affect this Court’s holding in Appleby nor its underlying rationale. This 

is because in Appleby we expressly found that a habitual offender proceeding is a 

collateral consequence of a guilty plea. 

Finally, the petitioner contends that Appleby represents a minority position 

among the States, is bad policy, and should be overruled. According to the petitioner, it is 

preferable to require the trial court or the prosecuting attorney to inform a defendant of 

the prosecuting attorney’s plan to file a habitual offender information prior to a 

defendant’s conviction. 

We agree that it is preferable for a defendant to be advised of potential 

habitual offender proceedings before he or she enters a guilty plea. As this Court opined 

in Appleby, “we think that from a practical standpoint the better course of action for a 

trial court is to advise a defendant about the possibility of recidivist proceedings being 

instituted in every case where West Virginia Code § 61-11-18 might apply.” 213 W. Va. 

at 512 n.7, 583 S.E.2d at 809 n.7 (citation omitted). However, this Court previously has 

recognized that “[h]abitual criminal proceedings providing for enhanced or additional 

9
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

punishment on proof of one or more prior convictions are wholly statutory. In such 

proceedings, a court has no inherent or common law power or jurisdiction.” Syl. pt. 2, in 

part, Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981). 

The Legislature set forth the procedure for habitual offender proceedings in 

W. Va. Code § 61-11-19 (1943), in part, as follows: 

It shall be the duty of the prosecuting attorney when he 

has knowledge of former sentence or sentences to the 

penitentiary of any person convicted of an offense punishable 

by confinement in the penitentiary to give information thereof 

to the court immediately upon conviction and before 

sentence. Said court shall, before expiration of the term at 

which such person was convicted, cause such person or 

prisoner to be brought before it, and upon an information filed 

by the prosecuting attorney, setting forth the records of 

conviction and sentence, or convictions and sentences, as the 

case may be, and alleging the identity of the prisoner with the 

person named in each, shall require the prisoner to say 

whether he is the same person or not. If he says he is not, or 

remains silent, his plea, or the fact of his silence, shall be 

entered of record, and a jury shall be impanelled to inquire 

whether the prisoner is the same person mentioned in the 

several records. If the jury finds that he is not the same 

person, he shall be sentenced upon the charge of which he 

was convicted as provided by law; but if they find that he is 

the same, or after being duly cautioned if he acknowledged in 

open court that he is the same person, the court shall sentence 

him to such further confinement as is prescribed by section 

eighteen [§ 61-11-18] of this article on a second or third 

conviction as the case may be. 

The statute clearly provides that the prosecuting attorney’s filing of an information 

setting forth a defendant’s prior conviction or convictions is timely if it is filed in the 

same term of the defendant’s current conviction and before sentencing for that 

10
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

conviction. This code section does not require the trial court or the prosecuting attorney 

to inform a defendant of the potential filing of habitual offender information prior to the 

defendant’s conviction or guilty plea. In recognition of the specific procedure set forth in 

W. Va. Code § 61-11-19, this Court held in syllabus point 4 of State ex rel. Mounts v. 

Boles, 147 W. Va. 152, 126 S.E.2d 393 (1962), that 

[t]he words “duly cautioned” contained in the West 

Virginia recidivist statute, Code, 61-11-19, as amended, with 

regard to former convictions and sentences before a valid 

judgment can be imposed for an additional sentence as 

provided in Code, 61-11-18, as amended, are fully complied 

with when the accused, after being convicted of the 

substantive offense and before being sentenced thereon, is 

later brought before the court in the same term and advised 

that the prosecuting attorney has filed a written information 

informing the court of former convictions and sentences; and 

the court then proceeds to advise the accused of the nature of 

each former offense and of the time and place of each former 

sentence, and then after giving the accused an opportunity to 

say whether he has any defense thereto, asks him if he is the 

same person as was formerly convicted and sentenced. If he 

answers in the affirmative, appropriate sentence may be 

pronounced in accordance with the statute. 

More recently, we have held: 

A person convicted of a felony may not be sentenced 

pursuant to W. Va. Code, 61-11-18, -19 [1943], unless a 

recidivist information and any or all material amendments 

thereto as to the person’s prior conviction or convictions are 

filed by the prosecuting attorney with the court before 

expiration of the term at which such person was convicted, so 

that such person is confronted with the facts charged in the 

entire information, including any or all material amendments 

thereto. W. Va. Code, 61-11-19 [1943]. 

Syl. pt. 1, State v. Cain, 178 W. Va. 353, 359 S.E.2d 581 (1987). In the instant case, the 

requirements of W. Va. Code § 61-11-19 were fully complied with below. Further, 

11
 
 

 

 

 

 

 

 

 

 

 

 

 

 

because habitual offender proceedings are statutorily created, this Court has no inherent 

power to amend the legislatively-prescribed procedure for these proceedings. Finally, this 

Court finds no reason to depart from the law as set forth in Appleby inasmuch as the 

rationale supporting that law remains valid. 

IV. CONCLUSION 

This Court concludes that the trial court and the prosecuting attorney did 

not have a duty under our law to inform the petitioner of the possibility of enhanced 

sentencing under W. Va. Code §§ 61-11-18 and 6-11-19 before the petitioner entered his 

guilty plea. Consequently, the circuit court did not abuse its discretion in denying the 

petitioner’s motion to withdraw his guilty plea. Accordingly, the October 18, 2013, order 

of the Circuit Court of Summers County that sentenced the petitioner as a habitual 

offender to a prison term of life with mercy is affirmed. 

Affirmed. 

12