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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia,

Plaintiff Below, Respondent

vs.) No. 21-0492 (Kanawha County 17-F-266)

Benjamin A. Harrison, 

Defendant Below, Petitioner

MEMORANDUM DECISION

Petitioner Benjamin A. Harrison, by counsel Edward L. Bullman, appeals the May 24, 

2021, order of the Circuit Court of Kanawha County resentencing petitioner to a term of three to 

fifteen years of incarceration for one count of driving under the influence (“DUI”) causing death 

and a term of two to ten years of incarceration for his conviction of DUI causing serious bodily 

injury. The State of West Virginia, by counsel Patrick Morrisey and William E. Longwell, filed a 

response in support of the circuit court’s order. On appeal, petitioner alleges that the circuit court 

erred in failing to comply with the mandatory requirements of Rule 11(e)(2) of the West Virginia 

Rules of Criminal Procedure.

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 affirming the circuit court’s order is appropriate under Rule 21 of the 

Rules of Appellate Procedure.

Following his indictment on one count of DUI causing death and one count of DUI causing 

serious bodily injury in the Circuit Court of Kanawha County, petitioner entered into a plea 

agreement with the State of West Virginia in March of 2018. In exchange for the State dismissing 

pending charges from other indictments, petitioner agreed to plead guilty to the two counts in the 

indictment at issue. The terms of the plea agreement also set forth that, while both the State and 

petitioner would be free to argue as to sentencing, the State agreed to recommend that the sentence 

imposed for both of petitioner’s felony convictions be run concurrently. However, the agreement 

provided that petitioner’s ultimate sentence was left to the discretion of the court.

FILED

August 31, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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Petitioner appeared before the circuit court in May of 2018 and presented a written plea of 

guilty to one count of DUI causing death and one count of DUI causing serious bodily injury. The 

circuit court engaged petitioner in a plea colloquy, during which petitioner indicated that he 

understood “perfectly” the nature and extent of the charges set forth in the plea agreement, that he 

understood the maximum possible sentences, that he reviewed the plea agreement in its entirety 

with his counsel and understood the terms, that he understood that both he and the State would be 

free to recommend whatever sentence they deemed appropriate, and that the State would 

recommend concurrent sentencing. 

Petitioner also acknowledged that, by signing the written plea of guilty, he understood all 

of his rights, including those he was waving, and that he was entering into the agreement freely, 

knowingly, and intelligently. As to sentencing, petitioner acknowledged that: 

Having read and understood my foregoing rights and further understanding that any 

plea bargaining which appears in the record of this case is not binding upon the 

[c]ourt with respect to punishment or probation, and understanding that in the event 

I should plead guilty to the felony offense of DUI Causing Death and DUI Causing 

Serious Bodily Injury that I could be sentenced as follows: 

COUNT ONE: to penitentiary of this State for not less than three (3) nor 

more than fifteen (15) years and shall be fined not less than one thousand dollars 

($1,000.00) nor more than three thousand dolla[r]s ($3,000.00); 

COUNT TWO: to penitentiary of this State for not less than two (2) nor more 

than ten (10) years and shall be fined not less than one thousand dollars ($1,000.00) 

nor more than three thousand dolla[r]s ($3,000.00), it is still my intention and desire 

to enter pleas of guilty. 

Consistent with the plea agreement and the parties’ proffer of its terms, the court found in its entry 

of plea order that “any plea bargaining that appears in the record of this case is not binding upon 

this [c]ourt with respect to punishment or probation.” After this extensive colloquy, petitioner 

entered his guilty plea to one count of DUI causing death and one count of DUI causing serious 

bodily injury. 

The circuit court convened for a sentencing hearing later in May of 2018. Petitioner moved 

for a term of home incarceration. The State argued that petitioner had been “partying all day long” 

on the day of the incident and that he was “intentionally speeding while drunk” when the incident 

occurred. The State also noted that after the incident, petitioner asked those who stopped to help 

to “not call the police” despite the fact that his friend, a passenger in the vehicle, was either dying 

or dead. The State further noted that petitioner initially lied to law enforcement officers and told 

them that he was not the driver of the vehicle. Family members of the decedent and the surviving 

passenger of petitioner’s vehicle also addressed the court. 
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Thereafter, the court imposed a sentence of not less than three nor more than fifteen years 

of incarceration, with credit for time served, for his conviction of DUI causing death; and not less 

than two nor more than ten years for his conviction of DUI causing serious bodily injury. The court 

ordered the sentences to run consecutively.1

In September of 2018, petitioner filed a motion for reconsideration of sentence, requesting 

the circuit court modify its sentence to permit him to attend the Anthony Correctional Center for 

Youthful Offenders. Later that month, the court issued an order denying petitioner’s motion 

without a hearing.

In October of 2019, petitioner, self-represented, filed a petition for writ of habeas corpus 

in the circuit court. Petitioner alleged that his trial counsel provided ineffective assistance, that he 

was denied the right to a direct appeal, and that his sentence was unconstitutionally 

disproportionate. Petitioner alleged in his petition that he “was assured if he t[ook] the plea, his 

sentences would run concurrent, [and] they were ran consecutive.” Petitioner also alleged that he 

was induced to accept a “guilty plea that was not in his absolute best interest.” Petitioner further 

alleged his counsel failed to assist him in fully understanding the “consequences and ramifications 

of exactly what he was agreeing to plead guilty to.” Later that month, the court denied the petition 

without a hearing. 

Petitioner appealed the circuit court’s order denying his petition for a writ of habeas corpus,

but this Court reversed the circuit court’s order and directed that an order be entered with the 

appropriate findings of fact and conclusions of law detailing the reason for its decision. Harrison 

v. Straughn, No. 19-1071, 2021 WL 357882 (W. Va. Feb 2, 2021)(memorandum decision). This 

Court further directed that, if it was necessary, the circuit court should convene a hearing in order 

to determine whether petitioner requested his trial counsel to file an appeal, and, if so, to resentence 

petitioner to restart the four-month timeframe to file an appeal.

In May of 2021, the circuit court held a hearing and concluded that petitioner had requested 

his previous counsel file an appeal of his sentence, and, thus, resentenced petitioner and appointed 

appellate counsel. Petitioner was resentenced on May 21, 2021, so that his newly appointed 

counsel could file an appeal on petitioner’s behalf. The circuit court’s May 24, 2021, order, 

memorialized its decision. Petitioner now appeals that order.

On appeal, petitioner argues that the circuit court erred in failing to comply with the 

mandatory requirements of Rule 11(e)(2) of the West Virginia Rules of Criminal Procedure, which 

requires the following:

1An individual found guilty of DUI causing death “is guilty of a felony and, upon 

conviction thereof, shall be imprisoned in a state correctional facility for not less than three nor 

more than 15 years.” W. Va. Code § 17C-5-2(b). Additionally, an individual found guilty of DUI 

causing serious bodily injury “is guilty of a felony and, upon conviction thereof, shall be 

imprisoned in a state correctional facility for not less than two nor more than 10 years.” W. Va. 

Code § 17C-5-2(c).
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If a plea agreement has been reached by the parties, the court shall, on the record, 

require the disclosure of the agreement in open court or, on a showing of good 

cause, in camera, at the time the plea is offered. If the agreement is of the type 

specified in subdivision (e)(1)(A), (C), or (D), the court may accept or reject the 

agreement, or may defer its decision as to the acceptance or rejection until there has 

been an opportunity to consider the presentence report. If the agreement is of the 

type specified in subdivision (e)(1)(B), the court shall advise the defendant that if 

the court does not accept the recommendation or request, the defendant 

nevertheless has no right to withdraw the plea.

Notably, petitioner’s plea agreement was the type specified in Rule 11(e)(1)(B) of the West 

Virginia Rules of Criminal Procedure, as the State made a non-binding recommendation for 

petitioner’s sentence to the circuit court. See W. Va. R. Crim. P. 11(e)(1)(B). Petitioner argues that 

although he was advised by the circuit court that sentencing would be at its discretion, he was not 

made aware in open court that if the court decided to go against the recommendation of the State, 

the plea may not be withdrawn once it is entered. He argues this is a violation of prior precedents.

See Syl. Pt. 2, State v. Cabell, 176 W. Va. 272, 342 S.E.2d 240 (1986) (holding that circuit courts 

must “comply with the mandatory requirements of Rule 11(e)(2)”); State v. Stone, 200 W. Va. 

125, 488 S.E.2d 400 (1997) (holding that the harmless error test applied to Rule 11(e)(2) 

violations); and United States v. Iaquinta, 719 F.2d 83, 85 (4th Cir. 1983) (reversing a conviction 

for failure to comply with Fed. R. Crim. P. 11(e)(2)). Finally, petitioner argues that his rights were

substantially disregarded because he was sentenced without being given the information or 

opportunity to withdraw his plea as required by the foregoing rules. 

Rule 11(h) provides that “[a]ny variance from the procedure required by [Rule 11] which 

does not affect substantial rights shall be disregarded.” We reiterated this in Syllabus Point 2 of 

State v. Valentine, holding that “[t]he harmless error rule of Rule 11(h) of the West Virginia Rules 

of Criminal Procedure should be applied when the factual evidence is clear that no substantial 

rights of the defendant were disregarded.” 208 W. Va. 513, 514, 541 S.E.2d 603, 604 (2000). 

Finally, and most specific to the facts of this case, we held that “[t]he omission of the statement 

required by Rule 11(e)(2) of the West Virginia Rules of Criminal Procedure must be deemed 

harmless error unless there is some realistic likelihood that the defendant labored under the 

misapprehension that his plea could be withdrawn.” Id. at 514, 541 S.E.2d at 604, Syl. Pt. 3.

Under the circumstances presented here, we agree with the State that the circuit court’s 

omission of the Rule 11(e)(2) provision is harmless error. Here, petitioner’s plea agreement 

expressly provided that sentencing would be left to the discretion of the circuit court. Then, the 

circuit court informed petitioner on multiple occasions during his plea colloquy that the court 

would exercise its discretion in imposing his sentence, despite the State’s recommendation. 

Furthermore, petitioner signed a written guilty plea which expressly stated that “[h]aving read and 

understood my foregoing rights and further understanding that any plea bargaining which appears 

in the record of this case is not binding upon the Court with respect to punishment or probation.”

While petitioner contends that “[t]here was a reasonable likelihood that [he] was under the 

misapprehension that the plea could be withdrawn” if the circuit court did not abide by the State’s 
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recommendation, he does not affirmatively assert that he misunderstood the terms of his plea 

agreement. Further, his blanket statement that his “substantial rights . . . were violated requiring 

reversal” is only supported by his assertion that the circuit court is required to provide the Rule 

11(e)(2) provision and now, having not been informed to the letter of the Rule, he stands sentenced 

to consecutive terms of incarceration for his felony offenses, rather than concurrent sentencing. 

However, just as in Valentine, “we refuse to exalt form over substance in Rule 11 hearings.” 208 

W. Va. at 517, 541 S.E.2d at 607. There is no indication in the record that petitioner “labored under 

the misapprehension that his plea could be withdrawn,” and we, therefore, find that the circuit 

court’s omission of the Rule 11 provision is harmless. Id.

For the foregoing reasons, we find no error in the circuit court’s May 24, 2021, order.

Affirmed.

ISSUED: August 31, 2022

CONCURRED IN BY:

Chief Justice John A. Hutchison

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice William R. Wooton

Justice C. Haley Bunn