*1 I am Accordingly, respectfully I dissent. state that Justice McGRAW
authorized
joins in this dissent.
STATE West
Below, Appellee, VALENTINE, Damon Defendant
Lorenza
Below, Appellant.
No. 27618. Appeals
Supreme Court of Virginia. Sept. 2000.
Submitted Nov.
Decided
Concurring Opinion of Justice 5, 2001.
Starcher Jan. *2 Bluefield, Virginia,
creational Center West gang young to confront a of had men who severely appellant’s beaten one of the friends previous day. appellant As soon as the Center, gunfire and his friends arrived at the Brown, erupted, by- and Lowell an innocent stander, fatally was shot the back. day, appellant The next informed the police that he was at the scene of the shoot- gave ing. detailing a statement He night provided movements that and shot- gun possession had in his at the time shooting. police The that the determined shotgun had been loaded with “bird shot” discharged and had been once in the air. In fact, there was some evidence that indicated appellant may have fired the first Sanders, Austin, Flanigan, Esq., William However, evening. shot that the bullet that Princeton, Swope Flanigan, Virginia, & pistol. killed Mr. Brown was fired from a Attorney Appellant. for the Subsequently, appellant MeGraw, Jr., and two of his Esq., Attorney Darrell V. General, charged degree II, friends were with second Loughry, Esq., Allen H. Assis- plea agree- All General, Charleston, murder. three entered into Attorney tant West Vir- appellant’s agree- with ments the State. The ginia, Attorneys Appellee. for provided ment with the State that he would MAYNARD, Chief Justice: plead guilty voluntary manslaughter, and exchange, object would not State upon appeal This ease is before this Court imposing three-year the court a sentence. of a final order of the Circuit Court Mer- However, agreement provided that County cer entered on November 1999. State would otherwise stand silent on sen- order, appellant In that and defendant tencing. below, Valentine, Lorenza Damon was sen- years to a tenced determinate term fifteen accepted appellant’s The circuit court penitentiary following plea in the state a 6, 1998, plea on June and a scheduled sen- guilty voluntary manslaugh- to the offense tencing hearing August for 1998. The appeal, appellant ter. On contends the sentencing hearing was later rescheduled for by informing circuit court erred him that meantime, December pursuant Virgi- to Rule of the West court, appellant a wrote letter the circuit Procedure, nia Rules of Criminal he could se,1 pro requesting that he be allowed to accepted, not withdraw his after it was withdraw his because he believed that imposed even ex- actually he was not since had not agree- proposed cess of the term in his fired that struck Brown. the bullet Mr. The ment with the State. appellant’s by letter was followed a formal petition This Court has before it the by motion to withdraw his filed record, appeal, the briefs of entire appellant’s sentencing At counsel. below, counsel. For the reasons set forth hearing, appel- circuit court denied the conviction is affirmed. pro- lant’s motion withdraw his appellant ceeded sentence the to a definite I. years term of confinement of fifteen in the 27,1998, penitentiary March On and three state for his role in the death of Hardy appeal of his went to Mr. Brown. friends Street Re- This followed. represented 1. The counsel this time.
II.
first
Cabell was the
case in which this
requirement
Court addressed the
of Rule
contends that the cir
11(e)(2).
case,
In that
we noted
our
cuit court committed
fail
reversible error
Rule
is identical to
corresponding
ing to advise him in
accordance
law,
Following
federal
11(e)
rule.
federal case
of the West
Rules of Criminal
*3
specifically
Iaquinta,
719
that
Procedure
his
could not be with
(4th Cir.1983),
F.2d 83
this Court reversed
accepted,
drawn after it was
if
even
the
the defendant’s conviction in
rejected
Cabell because
circuit court
his
for a three-
the circuit court failed to
year
inform the defen-
response,
In
sentence.
the State as
dant
right
that he did not have
that
the
to with-
appel
serts
the record shows that the
draw
accepted,
after it was
if
provisions
lant understood the
of
even
Rule 11.
rejected
the circuit court
argues
that
the terms of his
State further
if
even
plea agreement.
circuit
comply
precise
court did not
with the
11(e),
requirements of Rule
the error was
analysis
The same
in
utilized
State v.
harmless.
Stone,
(1997).
126,
200 W.Va.
400
S.E.2d
However,
Stone,
above,
also consid-
Court
As discussed
en
ered
give
whether the failure to
agreement
into an
the Rule
pur
tered
with the State
11(e)(1)(B)
admonition could
Virginia
suant to Rule
be considered
the West
Ultimately,
harmless error.
this Court stat-
whereby
Rules
Criminal Procedure
“[ujnless
appellant agreed
ed that
factual
plead guilty
voluntary
to
to
evidence is clear
manslaughter,
agreed
rights
disregarded,
that no substantial
the State
not to
were
11(h)
oppose
appellant’s request
the harmless error
a three-
rule Rule
[1996]2
year
circumstances,
Stone,
applied.”
sentence.
should
these
not be
Rule
200 W.Va. at
requires
Stone,
that “the court shall advise
with
requirements
of Rule
The record shows that
11(e)(2) of
Virginia
the West
Rules
appeared
two co-defendants
before the
may initially
Criminal Procedure.
It
ad-
5, 1998,
guilty
circuit court on June
to enter
guilty
vise the defendant at the time the
pleas
voluntary manslaughter. Although
any
is taken that as to
recommended
the circuit court sometimes addressed all
made
connection with a
collectively,
engaged
three defendants
it also
agreement, if the court
accept
does not
colloquies
in individual
with each defendant.
sentence,
recommended
the defendant will
accepting
appellant’s plea,
Before
right
have no
guilty plea.
withdraw the
questioned
circuit court
fol-
as
option,
As a
may
second
court
lows:
conditionally accept
guilty plea pending
Valentine,
Okay,
THE
Mr.
it
COURT:
presentence
a
report
giving
without
says
you
plead
going
here that
are
cautionary warning required by Rule
guilty
voluntary manslaughter,
is that
11(e)(2). However, if it
determines
correct?
sentencing hearing not to follow the rec-
Yes,
MR. VALENTINE:
sir.
sentence,
ommended
it must
the de-
fendant the
says
you
to withdraw the
THE
It also
COURT:
that
are
plea.
going
cooperative
with
authori-
be
ties?
Cabell,
Syllabus Point
State v.
176 W.Va.
(1986).
Yes,
THE COURT:
any
accepted
plea.
circuit
information about the
present
will
firearm,
is that correct?
presentment
record,
upon this
we
Based
believe
Yes, sir.
MR. VALENTINE:
comply
court’s failure to
the circuit
says
It also
THE COURT:
11(e)(2),
precise requirement
of Rule
you
in the event that
void
will be
must be
error.
deemed harmless
As noted
with the authorities?
cooperate
above,
Stone, swpra,
we
indicated
Yes,
11(h)
sir.
VALENTINE:
MR.
harmless
of Rule
should
error rule
be
applied
anybody
you or
the factual evidence is clear
Did
force
when
THE COURT:
rights
no
you
substantial
of the
you to make
enter into this
threaten
disregarded.
were
Our conclusion in this
plea?
*4
regard
supported by
is
several federal court
No sir.
MR. VALENTINE:
Iaquinta, supra,
decisions.
was decid
Since
you
anybody promise
Did
THE COURT:
ed,
Appeals
several United States Courts
you probation?
give
that I would
adopted
analysis
have
a harmless error
No, sir.
VALENTINE:
MR.
11(e)(2)
respect to
omission of the Rule
the
you
that I
Do
understand
THE COURT:
Noriega-Mil
admonition.
v.
United States
you
full
in this
give
the
sentence
could
(1st
lan,
Cir.1997);
While
mendation or
is not
warn
sufficient
requirements
judge
to the strict
is
adhere
ing
attempted
when the district court never
courts to
of Rule 11 and we advise our circuit
by any
to ascertain
means the defendant
so,
courts,
federal
we refuse to
like the
understood he had no
to withdraw his
form
in Rule 11 hear-
exalt
over substance
plea);
DeBusk,
976 F.2d
Thibodeaux,
ings.
(Filed 2001) Theron, imposed); v. United States 849 F.2d Jan. (10th Cir.1988) (not harmless error be pled guilty The defendant June of 1998 attempted cause district court never to ascer charge killing though someone —even by any tain means whether the defendants actually vic- the defendant did shoot the they understood wee without the judge proper did tim. The plea). to withdraw cautionary warning it is clear that the —but knew that would not allowed defendant be commendably brought These eases were plea, to withdraw the once he had entered it. this Court’s attention counsel later, September Three months show, state. As these cases the law is clear sentencing, well before grounds that whenever there are reasonable change his mind and asked the wanted fully to believe that a defendant didn’t under- plea. him court to let withdraw his pled stand when he that he could not judge properly exercised discretion plea, withdraw must be allowed to (The judge request. this also could denied so. granted request probably would have —I withdrawal.) have allowed the happening of what I on a too- Because see Court,
regular separate- on I basis write
ly emphasize that is a substantial there finding
body law to of ease the effect is not automatic in situ-
harmless error these See, Ferrara, e.g.,
ations. United States (2d Cir.1992) (from
the court concluded it was sentencing hearing. ruling 4. We that the circuit court addressed the The circuit court's note regard appeal. at the is not an issue in this to withdraw his