State v. Donald

399 S.E.2d 898, 184 W. Va. 187
CourtWest Virginia Supreme Court
DecidedNovember 30, 1990
DocketNo. 19499
StatusPublished
Cited by4 cases

This text of 399 S.E.2d 898 (State v. Donald) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Donald, 399 S.E.2d 898, 184 W. Va. 187 (W. Va. 1990).

Opinion

PER CURIAM:

The appellant, the State of West Virginia, appeals an order of the Circuit Court of Kanawha County entered on March 15, 1989, which granted the appellee, Donald S.B.,1 a writ of habeas corpus, and set aside [189]*189his plea of guilty to first-degree sexual abuse. The appellant contends that the circuit court erred in allowing the appellee to withdraw his guilty plea after sentence had been imposed. We agree.

The appellee’s guilty plea was a result of a plea agreement he had entered into with the appellant. Pursuant to that agreement, the appellee agreed to plead guilty to one count of first-degree sexual abuse, and the appellant agreed to stand silent on the issue of sentencing. On May 5, 1988, the appellee waived prosecution by indictment, and entered a plea of guilty to one count of first-degree sexual abuse. Following a presentence investigation, the circuit court sentenced the appellee on August 16, 1988, to a prison term of not less than one nor more than five years.2

The appellee subsequently retained a new attorney to represent him. On September 19,1988, the appellee filed a motion to withdraw his guilty plea and vacate his sentence. The court agreed to treat the motion as a petition for a writ of habeas corpus as required by Rule 32(d) of the West Virginia Rules of Criminal Procedure and W.Va.Code, 53-4A-1.3 The circuit court heard testimony in support of the motion on November 1, 1988.

Prior to the ruling on the habeas corpus petition, the appellee filed a motion for reconsideration of his sentence. In response to the appellee’s motion to reconsider his sentence, the circuit court, without any objection from the appellant or the victim’s mother, placed the appellee on probation for five years pursuant to an order dated December 22, 1988.

On January 12, 1989, the appellee filed a petition for a writ of habeas corpus with this Court, alleging, among other things, that his plea of guilty to the information presented by the appellant was not voluntary. We refused the writ by order dated January 17, 1989.

The appellee subsequently requested a hearing in circuit court on the petition for a writ of habeas corpus. A hearing was held on January 30, 1989.

By letter dated February 10, 1989, the appellee requested that the circuit court rule on the petition for a writ of habeas corpus. A stipulation, signed by both the appellant and appellee’s counsel, was filed with the circuit court which stated that by entering the order dated December 22, 1988, reconsidering the appellee’s sentence and placing him on probation, the circuit judge had considered the petition for a writ of habeas corpus to be moot.4

By order dated March 15, 1989, the circuit court granted the appellee’s writ of habeas corpus and allowed the appellee to withdraw his guilty plea. It is from that order that the appellant now appeals.

The principal issue we shall address in this appeal is whether the circuit court erred in allowing the appellee to withdraw his guilty plea after sentence had been imposed. The appellant asserts that: (1) the appellee’s plea was voluntary; (2) the appellee understood the criminal charge against him; and (3) there was no showing of manifest injustice. The appellee’s primary contentions are that the information did not set forth the elements of the crime, and that the appellee did not understand the nature of the criminal charge against him at the time he pled guilty.

[190]*190I

First, we shall address whether the information presented by the appellant satisfied the requirements of Rule 7(c)(1) of the West Virginia Rules of Criminal Procedure. Rule 7(c)(1) provides, in relevant part, that “the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” The rule further provides that the “information shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated.”

Furthermore, the information is to be judged by the same standards that determine the sufficiency of the body, charge or accusation of an indiction. State v. Wade, 174 W.Va. 381, 327 S.E.2d 142 (1985). As we stated in syllabus point 3 of Wade:

‘An indictment [or information] for a statutory offense is sufficient if, in charging the offense, it substantially follows the language of the statute, fully informs the accused of the particular offense with which he is charged and enables the court to determine the statute on which the charge is based.’ Syl. pt. 3, State v. Hall, 172 W.Va. 138, 304 S.E.2d 43 (1983).

The information presented by the appellant in the instant case is as follows:

That, DONALD S. [B.], being a male person fourteen years old and older and she, Monicia [B.], being eleven years old and less on the 7th day of August, 1987, and prior to the filing of this Information, in the said County of Kanawha, unlawfully and feloniously subject the said Monicia [B.] to sexual contact, to-wit: by touching the female sex organ of the said Monicia [B.] by the said DONALD S. [B.], in violation of chapter [61], Article 8B, Section 7, West Virginia Code, 1931, as amended, against the peace and dignity of the State.

The language of the information substantially follows the statutory language of W.Va.Code, 61-8B-7, and sufficiently apprises the appellant of the sexual abuse charge against him.5 The information clearly advises the appellant of the facts which gave rise to the charge of sexual abuse in that it specifically states that he subjected the victim to sexual contact “by touching the sexual organ” of the victim. Thus, there is no merit in the appellee’s assertion that the information did not sufficiently advise him of the nature of the charge against him.

II

Next, we shall consider whether the appellee understood the charge against him, and entered a voluntary plea of guilty to that charge. The procedure to be followed by a circuit court in accepting a plea of guilty was stated by this Court in syllabus point 4 of Call v. McKenzie, 159 W.Va. 191, 220 S.E.2d 665 (1975):

Where there is a plea bargain by which the defendant pleads guilty in consideration for some benefit conferred by the State, the trial court should spread the terms of the bargain upon the record and interrogate the defendant concerning whether he understands the rights he is waiving by pleading guilty and whether [191]*191there is any pressure upon him to plead guilty other than the consideration admitted on the record.

Once the circuit court has accepted a plea of guilty and imposed a sentence, the guilty plea should not be set aside absent a showing of manifest injustice as we stated in syllabus point 2 of State v. Olish, 164 W.Va. 712, 266 S.E.2d 134

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Cite This Page — Counsel Stack

Bluebook (online)
399 S.E.2d 898, 184 W. Va. 187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-donald-wva-1990.