No. 13-1123 - State v. Keith D. 

FILED 

April 9, 2015
 

RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 

Davis, J., dissenting: 

In this appeal, the defendant argued that he should have been allowed to 

withdraw his guilty plea. The defendant states that he was not informed, prior to entering the 

plea, that he would be subject to being sentenced to life in prison under the habitual offender 

statute. The majority opinion rejected the argument and held that the defendant did not have 

a right to know that he would be sentenced to life in prison prior to the acceptance of his 

guilty plea. For the reasons set out below, I dissent. 

At the outset, it is important to understand that the parties and the majority 

opinion all agree that, at the time the trial court accepted the defendant’s guilty plea, the 

defendant had no knowledge that he would be subject to being sentenced to life in prison 

under the habitual offender statute. Therefore, the controlling issue in this case was whether 

the defendant had a right to be informed of the possible life sentence under the habitual 

offender statute prior to the trial court’s acceptance of his guilty plea. The defendant had a 

right to be so informed. As I will show, the defendant should have been informed of the 

possible life sentence by the prosecutor or the trial court. 

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To begin, it has been recognized that “sentence enhancements based on a 

defendant’s prior convictions are generallyregarded as a consequence of which the defendant 

must be advised before pleading guilty.” Marquez v. Hatch, 146 N.M. 556, 560, 212 P.3d 

1110, 1114 (2009). The opinion in Marquez explained the general procedure that a trial 

court should follow when it learns, either prior to a plea hearing or after a plea hearing, that 

a defendant will be subject to a possible habitual offender sentence enhancement. 

We realize that it may be difficult for the district court to 

accurately inform a defendant of potential sentence 

enhancements before the existence and validity of the 

defendant’s prior convictions have been established through a 

supplemental information proceeding. Such difficulties are not 

insurmountable and do not relieve the court of its obligation to 

adequately inform the defendant of sentencing enhancements 

based on prior convictions that will almost certainly result from 

a guilty or no contest plea. Certainly, if the district court is 

aware of the defendant’s prior convictions that would require a 

sentence enhancement if subsequently requested by the State, 

the court should inform the defendant of the maximum potential 

sentence, including enhancements. If the defendant enters a 

guilty or no contest plea without being advised of possible 

sentence enhancements and then the possible existence of prior 

convictions comes to light when the State files a subsequent 

supplemental information seeking to enhance the defendant’s 

sentence based on those prior convictions, the court should 

conduct a supplemental plea proceeding to advise the defendant 

of the likely sentencing enhancements that will result, and 

determine whether the defendant wants to withdraw the plea in 

light of the new sentencing enhancement information. 

Marquez, 146 N.M. at 562, 212 P.3d at 1116 (internal citations omitted). 

The majority opinion in the instant case wrongly relied upon the per curiam 

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decision in State ex rel. Appleby v. Recht, 213 W. Va. 503, 583 S.E.2d 800 (2002), for the 

proposition that a defendant does not have to be informed of a possible habitual offender 

sentence enhancement before a court may accept a guilty plea. I do not believe that Appleby 

stands for such a proposition. In fact, the majority opinion has incorrectly made it appear that 

Appleby supports such a result. In footnote 6 of Appleby the following facts were set out: 

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 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. . . .” 

Appleby, 213 W. Va. at 512, 583 S.E.2d at 809. Therefore, it is quite clear from footnote 6 

in Appleby that before the defendant entered his guilty plea he was fully aware that the State 

would seek to enhance his punishment under the habitual offender statute. 

In the instant case, the majority opinion stated that the facts set out in footnote 

6 of Appleby had absolutely no impact on the decision in that case because those facts were 

in a footnote. This is a tragic attempt to distinguish reality from reality. Obviously, the fact 

that the defendant in Appleby was aware before he entered a guilty plea that the prosecutor 

was going to file a recidivist information against him had an impact on this Court’s decision 

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in the case. The facts set out in footnote 6 of Appleby were not set out as floral decorations. 

Those facts were material and relevant to the disposition of the case. Those facts were set 

out to show all of the facts this Court considered in reaching its conclusion in the Appleby 

case. 

Far from supporting the majority opinion in the instant proceeding, I believe 

Appleby supports my position: the defendant in this case had a right to be informed about the 

possible habitual offender enhancement of his sentence before entering his guilty plea. 

Under Appleby, this critical information could have been provided by the prosecutor prior 

to the plea hearing. Insofar as the prosecutor failed to alert the defendant of its intentions, 

I believe that the trial court was obligated under our Rules of Criminal Procedure to inform 

the defendant of the possible habitual offender enhancement of his sentence. 

Prior to a trial court’s acceptance of a guilty plea, Rule 11(c)(1) of the West 

Virginia Rules of Criminal Procedure imposes a mandatory duty on the court to inform a 

defendant of “the maximum possible penalty provided by law.” (Emphasis added.) This 

requirement from Rule 11(c)(1) also is contained in Rule 3.172 of Florida’s rules of criminal 

procedure. The Florida Supreme Court construed its Rule 3.172 in the case Ashley v. State, 

614 So. 2d 486 (Fla. 1993). In Ashley, the defendant argued that his conviction on a nolo 

contendere plea should be vacated, because the trial court did not inform him that his 

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sentence could be enhanced under Florida’s habitual offender statute. The Florida Supreme 

Court agreed with the defendant that the requirement under Rule 3.172, that a trial court 

inform a defendant of “the maximum possible penalty provided by law,” includes informing 

a defendant about the consequences of the application of the habitual offender statute. The 

court addressed the matter as follows: 

Because habitual offender maximums clearly constitute 

the “maximum possible penalty provided by law”. . . the plain 

language of rule 3.172 require[s] that before a court may accept 

a guilty or nolo plea from an eligible defendant it must ascertain 

that the defendant is aware of the possibility and reasonable 

consequences of habitualization. To state the obvious, in order 

for the plea to be “knowing,” i.e. , in order for the defendant to 

understand the reasonable consequences of his or her plea, the 

defendant must “know” beforehand that his or her potential 

sentence may be many times greater what it ordinarily would 

have been under the guidelines and that he or she will have to 

serve more of it. We note that this view is endorsed by courts, 

commentators, and the American Bar Association. 

Ashley, 614 So. 2d at 489. See also United States v. Hairston, 522 F.3d 336, 341 (4th 

Cir. 2008) (concluding that the district court erred by failing to inform the defendant before 

accepting his plea that he would face an enhanced statutory minimum sentence if he had 

qualifying prior convictions); United States v. Castro-Gomez, 233 F.3d 684, 687 (1st Cir. 

2000) (setting aside guilty plea because of failure to inform defendant of impact of prior 

convictions on sentence); Carter v. State, 812 So. 2d 391, 394 (Ala. Crim. App. 2001) 

(reiterating that a defendant must be advised of any applicable habitual offender 

enhancements before accepting plea); State v. Melone, 299 Mont. 442, 2 P.3d 233, 236 

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(2000) (recognizing that the court must advise a defendant of the maximum penalty, 

including anypersistent felonyoffender enhancements that might apply); Hudson v. Warden, 

Nevada State Prison, 117 Nev. 387, 22 P.3d 1154 (2001) (determing that a discrepancy 

regarding information the defendant was given regarding sentence enhancements for prior 

convictions rendered the plea invalid). 

As can be seen from the above analysis, courts around the country recognize 

that a defendant has a right to be informed of a possible habitual offender sentence 

enhancement before entering a guilty plea. To the extent that the prosecutor in this case did 

not inform the defendant, prior to the court’s acceptance of the plea, that a recidivist 

information would be filed against him, then I believe Rule 11(c)(1) imposed a duty upon the 

trial court to inform the defendant of the possible enhancement of his sentence under the 

habitual offender statute. 

Based upon the foregoing, I respectfully dissent. 

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