State of West Virginia v. Brian Elisha Ballard ( 2018 )


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  •                             STATE OF WEST VIRGINIA
    SUPREME COURT OF APPEALS
    State of West Virginia,
    Plaintiff Below, Respondent                                                      FILED
    October 19, 2018
    vs.) No. 17-1008 (Summers County 17-F-38)                                    EDYTHE NASH GAISER, CLERK
    SUPREME COURT OF APPEALS
    OF WEST VIRGINIA
    Brian Elisha Ballard,
    Defendant Below, Petitioner
    MEMORANDUM DECISION
    Petitioner Brian Elisha Ballard, pro se, appeals the Circuit Court of Summers County’s
    September 26, 2017, order sentencing him to not less than one nor more than three years of
    incarceration following his conviction for driving while revoked for driving under the influence
    (“DUI”), third offense. The State, by counsel Gordon L. Mowen II, filed a response. Petitioner
    filed a supplemental appendix. On appeal, petitioner argues that he was erroneously denied his
    right to a preliminary hearing and that the circuit court was biased at sentencing.
    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.
    Petitioner was arrested on April 20, 2017, for driving while revoked for DUI, third
    offense; possession of a controlled substance; obstructing an officer; and giving false information
    to a trooper. Petitioner made his initial appearance before a magistrate on this same date. A
    preliminary hearing was scheduled, but did not take place due to petitioner’s waiver of his right
    to a preliminary hearing within twenty days of his initial appearance. The preliminary hearing
    was rescheduled for a later date, but the record reflects that petitioner’s counsel moved to
    continue that rescheduled hearing due to a conflict. In further support of the motion to continue,
    petitioner’s counsel cited petitioner’s prior waiver of the preliminary hearing timeframe.
    On July 18, 2017, and absent a preliminary hearing, petitioner was indicted on the
    charges for which he was arrested, and the matter was transferred to the circuit court. At a
    September 25, 2017, status conference, the parties announced that they had reached an
    agreement whereby petitioner would plead no contest to the driving revoked for DUI, third
    offense, charge in exchange for the dismissal of the remaining charges. Before accepting
    petitioner’s plea, the court informed petitioner that, upon entry of his plea, he would give up
    certain rights, including
    1
    [t]he right to have a jury trial to determine your guilt or innocence; and benefit of
    the presumption of innocence; the right against self-incrimination; the right to
    confront the people who accuse you of this; the right to defend yourself; the right
    to call witnesses on your own behalf; and the right to challenge any violation of
    any legal right[.]
    Petitioner indicated that he understood that he would be waiving these rights and, nonetheless,
    wished to enter the no contest plea.
    The circuit court accepted the parties’ agreement and, after petitioner waived his right to
    a presentence investigation report, sentenced him to not less than one nor more than three years
    of incarceration. The court further ordered that this sentence run concurrently with a sentence
    imposed in Monroe County, West Virginia, but with an effective sentencing date of the date of
    the hearing, September 25, 2017. These rulings were memorialized in the court’s order dated
    September 26, 2017, and it is from this order that petitioner appeals.
    On appeal, petitioner argues that he was denied his right to a preliminary hearing.
    Petitioner states that he executed his preliminary hearing timeframe waiver one week after the
    time for holding a preliminary hearing expired, and he further notes that he waived only the
    timeframe, and not his right to the hearing altogether. Petitioner also challenges his sentence on
    the ground that the sentencing judge “cannot make a[n] unbiased sentenc[e].” In support,
    petitioner states only that the sentencing judge was the same judge who sentenced him in another
    matter.1
    This Court reviews sentencing orders “under a deferential abuse of discretion standard,
    unless the order violates statutory or constitutional commands.” Syl. Pt. 1, in part, State v.
    Adams, 211 W.Va. 231, 
    565 S.E.2d 353
    (2002). We have also held that “[s]entences imposed by
    the trial court, if within statutory limits and if not based on some [im]permissible factor, are not
    subject to appellate review.” Syl. Pt. 4, State v. Goodnight, 169 W.Va. 366, 
    287 S.E.2d 504
    (1982).
    Petitioner’s first assignment of error concerning the preliminary hearing is without merit.
    We have long held that “[a] preliminary hearing in a criminal case is not constitutionally
    required.” Syl. Pt. 1, State ex rel. Rowe v. Ferguson, 165 W.Va. 183, 
    268 S.E.2d 45
    (1980).
    Further, if a defendant is indicted before a preliminary hearing can be held, a preliminary hearing
    is not required. 
    Id. at 192,
    268 S.E.2d at 49; see also W.Va. R. Crim. P. 5(c) (“[T]he preliminary
    1
    Petitioner also asserts that “the arresting officer in my Summers County case was
    testifying in Monroe County in front of [the sentencing judge] at my bond revocation hearing.”
    Petitioner fails to explain the alleged significance of this. In any event, the record reflects that the
    arresting officer did not testify at sentencing, nor was the officer even mentioned. Accordingly,
    we decline to address this alleged error. See State, Dep’t of Health and Human Res., Child
    Advocate Office ex rel. Robert Michael B. v. Robert Morris N., 195 W.Va. 759, 765, 
    466 S.E.2d 827
    , 833 (1995) (“[A] skeletal ‘argument,’ really nothing more than an assertion, does not
    preserve a claim[.]”).
    2
    examination shall not be held if the defendant is indicted or if an information against the
    defendant is filed in circuit court before the date set for the preliminary examination.”). This is so
    because, when “the grand jury makes the probable cause determination necessary for holding the
    defendant over for trial, the magistrate no longer needs to address that issue.” State v. Davis, 236
    W.Va. 550, 556, 
    782 S.E.2d 423
    , 429 (2015).
    Moreover, petitioner acknowledged that he gave up certain rights, including his “right to
    challenge any violation of any legal right[,]” upon entry of his no contest plea. By “entering a
    plea of guilty [a defendant] waives all pre-trial defects with regard to his arrest, the gathering of
    evidence, prior confessions, etc., and further, . . . he waives all non-jurisdictional defects in the
    criminal proceeding.”2 Call v. McKenzie, 159 W.Va. 191, 198, 
    220 S.E.2d 665
    , 671 (1975)
    (citations omitted). Therefore, even assuming some error with respect to the failure to hold a
    preliminary hearing, petitioner waived the right to challenge such error upon entry of his plea.
    Finally, petitioner’s assertion that the circuit court was biased at sentencing is also
    without merit. Petitioner’s sentence is within statutory limits. See W.Va. Code § 17B-4-3(b).
    Accordingly, absent identification of an impermissible factor, his sentence is not subject to
    appellate review. Goodnight, 169 W.Va. at 
    366, 287 S.E.2d at 505
    , Syl. Pt. 4. Because petitioner
    offers nothing more than the unsupported assertion that the circuit court was biased at
    sentencing, he has failed to identify any impermissible factor, and his sentence is not subject to
    review.
    For the foregoing reasons, the circuit court’s September 26, 2017, sentencing order is
    hereby affirmed.
    Affirmed.
    ISSUED: October 19, 2018
    CONCURRED IN BY:
    Chief Justice Margaret L. Workman
    Justice Elizabeth D. Walker
    Justice Paul T. Farrell sitting by temporary assignment
    Justice Tim Armstead
    Justice Evan H. Jenkins
    Justice Allen H. Loughry II suspended and therefore not participating
    2
    The consequences of entering a no contest plea are, in effect, the same as those
    following entry of a guilty plea. See Humphries v. Detch, 227 W.Va. 627, 635, 
    712 S.E.2d 795
    ,
    803 (2011) (citation omitted).
    3