1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia, Plaintiff Below, Respondent

vs) No. 14-0807 (Marion County 14-F-36)

Lewis Kelly Dailey, Defendant Below,

Petitioner



### MEMORANDUM DECISION

Petitioner Lewis Kelly Dailey, by counsel Heidi M. Georgi Sturm, appeals the Circuit Court of Marion County’s June 18, 2014, order sentencing him to th ree consecutive sentences of one to five years of incarceration following his guilty pleas to three counts of third-degree sexual assault. The State, by counsel Laura Young, filed a response. On appeal, petitioner alleges that the plea agreement was unclear as to whether his individual sentences were to be served concurrently or consecutively; that he was not made aware that entering into a plea agreement would limit the issues he was able to appeal; that the circuit court erred in allowing him to be represented by two separate attorneys in two countie s in two criminal matters; and that the circuit court should have imposed the sentences as set forth in the plea agreement.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21

of the Rules of A ppellate Procedure.

In September of 2013, petitioner was arrest ed after having sexual intercourse with a fourteen-year-old girl. Thereafter, petitioner was indicted on one count of sex trafficking of a minor, three counts of third-degree sexual assa ult, and three counts of second-degree sexual

assault.

In June of 2014, petitioner and the State reached a plea agreement whereby petitioner would plead guilty to three counts of third-degree sexual assault, resulting in a maximum

sentence of not less than three nor more than fifteen years of incarceration. Further, the State agreed to dismiss several felony counts carrying th e potential of between thirty-three to ninety years of incarceration. The State further reco mmended that any sentences imposed would run concurrent with a separate criminal senten ce imposed in Harrison County, West Virginia. However, the written plea agreement specifically st ated that, pursuant to Rule 11(e)(1)(B) of the West Virginia Rules of Criminal Procedur e, the circuit court was not bound to accept the

recommendation. 

### FILED

October 20, 2015

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 The circuit court then held a plea and sentencing hearing. Du ring the hearing, the circuit court asked petitioner if anyone had guaranteed he would rece ive concurrent sentences, and petitioner replied in the negative. Ultimately, the ci rcuit court imposed senten ces that were to run consecutively to one another and consecutively to the separate Harriso n County sentence. The circuit court made this decision based upon the speci fic facts of the case, in cluding the fact that the child was missing for three days while petitioner and a co-defendant committed multiple sex acts with the victim and based upon victim impact st atements. It is from the sentencing order that petitioner appeals.

We have previously held that “‘[t]he S upreme Court of Appeal s reviews sentencing

orders . . . under a deferential a buse of discretion standard, unless the order violates statutory or constitutional commands.’ Syl. Pt. 1, in part, State v. Lucas , 201 W.Va. 271, 496 S.E.2d 221 (1997).” Syl. Pt. 1, State v. James , 227 W.Va. 407, 710 S.E.2d 98 (2011). Further, we have recognized that “[a] guilty plea based on competent advice of counsel represents a serious admission of factual guilt, and where an adequate record is made to s how 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). In syllabus point three of Call v. McKenzie , 159 W.Va. 191, 220 S.E.2d 665 (1975), we outlined the procedures to be followed by trial courts for the purpose of insuring that guilty pleas are entered voluntarily and intelligently, as follows:

When a criminal defendant proposes to enter a plea of guilty, the trial judge should interrogate such defendant on the record with regard to his intelligent understanding of the following rights, some of which he will waive by pleading guilty: 1) the right to retain couns el of his choice, and if indigent, the right to court appointed counsel; 2) the right to consult with counsel and have counsel prepare the defense; 3) the right to a public trial by an impartial jury of twelve persons; 4) the right to have the State prove its case beyond a reasonable doubt and the right of the defendant to st and mute during the proceedings; 5) the right to confront and cross- examine his accusers; 6) the right to present witnesses in his own defense and to testify himself in his own defense; 7) the right to appeal the conviction for any errors of law; 8) the right to move to suppress illegally obtained evidence and illegally obtain ed confessions; and, 9) the right to challenge in the trial court and on appeal all pre-trial proceedings.

With these standards in mind, we turn to petitioner’s assignments of error.

To begin, the Court declines to address petiti oner’s arguments that th e circuit court erred in allowing him to be represented by two separate attorneys in separate criminal proceedings in

two counties or that the circuit court erred in failing to accept the State’ s recommended sentence. First, petitioner clearly recognizes that the pl ea agreement that he accepted was non-binding on the circuit court, pursuant to Rule 11(e)(1)(B) of the West Virginia Rules of Criminal Procedure, and he plainly acknowledges that the circuit cour t had discretion in imposing his sentence below.3 Further, petitioner’s sentencing order in the sepa rate criminal proceedings from Harrison County is not at issue in this appeal a nd, therefore, not addressed herein. 1

Most importantly, however, in his brief on a ppeal, petitioner cites to no authority in support of either of these assignments of erro r and instead makes broad generalizations while arguing that policy considerations support his assertions. This is in direct contradiction to Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure, which requires that “[t]he brief must contain an argument exhibiting clearly the points of fact and law pres ented, the standard of review applicable, and citing the authorities relied on . . . .” Mo reover, that Rule requires that “[t]he argument must contain appropriate and speci fic citations to the reco rd on appeal, including citations that pinpoint when and how the issues in the assignments of erro r were presented to the lower tribunal.” Absent adequate support, this Court is free to disregard such errors. For these reasons, the Court finds petitioner is entitled to no relief in regard to these assignments of error.

As to petitioner’s argument that the plea agreement did not cl early state whether the State would recommend that the sentences imposed in this case be served consecutively or concurrently, the Court finds no merit to this argu ment. Specifically, this argument is contrary to petitioner’s own statement of the facts on appeal, wherein he clearl y states that “[t]he terms of the plea agreement from the State included the sentences for the three [third-degree sexual assault charges] would run cons ecutively to one another.” Simply put, petitioner cites to no evidence that the terms of the plea agreement we re unclear or that the resulting confusion caused him to enter into the plea without knowledge or involuntarily. To the contrary, the record is replete with evidence that petitio ner clearly understood the terms of the plea agreement, that he entered into it knowingly and volunt arily, and that the State’s r ecommendations were not binding on the circuit court. Petitioner even admits in his brief on appeal that he “entered into this plea voluntarily, knowing that the [circu it court] would make the ultimate decision as to what the punishment . . . would be.” As such, th e Court finds no error in this regard.

Finally, in regard to petitioner’s argument that the circuit co urt erred in limiting the issues he could raise on appeal, the Court again finds no merit to this argument. Specifically, petitioner acknowledges that by entering a guilty plea, he limited his grounds for appeal to the following three issues: whether the plea is voluntary; whether the sentence is correct; and whether jurisdiction is proper. Further, petitioner argues that he was provi ded with a copy of a “Notice of Post-Conviction Rights” and that it “implie[d he] is entitled to appeal on every ground available, even if not applicable because he entered a plea .” However, it is unclear what issues, if any, petitioner has been barred from appealing, as he has not raised any specific issue that he should be entitled to appeal but is pr evented from raising herein. In f act, it is unclear what, exactly, petitioner is alleging as an error in this regard. Petitioner argues that, of ten, a criminal defendant may move for reconsideration of his sentence outside the bounds of the agreed appealable issues, only to have the State use such action as a basi s to revoke the plea agreement. However, no such

1 Petitioner did appeal the sent encing order from the crimin al charges in Harrison County in a separate appeal to this Court. However, the Court dismisse d that appeal fr om the docket by order entered on August 31, 2015. As such, petitioner is precluded from raising issues related to the Harrison County prosecution in this appeal, which concerns onl y the Circuit Court of Marion County’s sentencing order.4 action has occurred here, nor is petitioner arguing th at he should be entitled to appeal a specific issue. As such, we find this issue is not ripe for appeal, and note that “‘[m]oot questions or abstract propositions, the decision of which would avail nothing in the determination of controverted rights of persons or of property, are not properly cognizable by a court.’ Syl. Pt. 1, State ex rel. Lilly v. Carter , 63 W.Va. 684, 60 S.E. 873 (1908).” Syl. Pt. 1, State v. Merritt , 221 W.Va. 141, 650 S.E.2d 240 (2007). Simply put, the ci rcuit court was under no duty to inform petitioner that he could not a ppeal his conviction on issues th at are inapplicable and had no bearing on his sentence, a nd petitioner has not alleged he has been harmed in any way in regard to this assignment of error.

For the foregoing reasons, the circuit cour t’s June 18, 2014, sentencing order is hereby

affirmed.

Affirmed.

ISSUED : October 20, 2015

CONCURRED IN BY :

Chief Justice Margaret L. Workman

Justice Robin Jean Davis Justice Brent D. Benjamin

Justice Menis E. Ketchum Justice Allen H. Loughry II