State of West Virginia v. Shaniqua Whindleton

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia,

Plaintiff Below, Respondent FILED

May 26, 2020

vs.) No. 19-0333 (Berkeley County 17-F-233) EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

Shaniqua Whindleton,

Defendant Below, Petitioner

MEMORANDUM DECISION

Petitioner Shaniqua Whindleton, by counsel Kevin D. Mills and Shawn R. McDermott,

appeals the March 13, 2019, order of the Circuit Court of Berkeley County that sentenced her to

one to five years in prison on the charge of possession with intent to deliver marijuana and which

suspended such sentence in favor of probation for a period of five years. The State of West

Virginia, by counsel Shannon Frederick Kiser, filed a response in support of the circuit court’s

order. Petitioner submitted a reply.

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 order of the circuit court is appropriate under Rule 21 of

the Rules of Appellate Procedure.

In December of 2016, petitioner was a passenger in a vehicle being driven by Joshua Shaine

Moore that was stopped by Trooper D.R. Walker in Berkeley County, West Virginia. Inside the

vehicle, Trooper Walker discovered large amounts of individually sealed bags of marijuana, a

vacuum sealer, empty plastic bags, a vacuum-sealed and loaded .357 Magnum revolver that had

been wiped clean, and other evidence that resulted in the arrest of petitioner, Mr. Moore, and a

second passenger, Abdul Kamara. All three were subsequently indicted on the charges of

possession with intent to deliver marijuana, see W. Va. Code § 60A-4-401(a)(ii), transportation of

a controlled substance into the state, see W. Va. Code § 60A-4-409(a), and one count of conspiracy

to commit possession with intent to deliver marijuana. See W. Va. Code § 61-10-31.1

1

Mr. Kamara was also charged with being a prohibited person in possession of a firearm.

See W. Va. Code § 61-7-7(a)(8). He subsequently entered a guilty plea to the misdemeanor offense

of conspiracy to possess marijuana and was sentenced to time served. Mr. Moore was convicted

1

On December 5, 2017, petitioner and the State entered into a deferred adjudication

agreement under which petitioner pled guilty to the felony offense of possession with intent to

deliver marijuana, which, pursuant to West Virginia Code § 61-11-22a,2 the circuit court held in

abeyance and placed petitioner on probation/pretrial release for a period of three years, with

by a jury of all three counts of the indictment. See infra. His conviction was affirmed by this Court

in State v. Moore, No. 18-0786, 2020 WL 533113 (W.Va. Feb. 3, 2020) (memorandum decision).

2

West Virginia Code § 61-11-22a provides:

(a) Upon the entry of a guilty plea to a felony or misdemeanor before a circuit or

magistrate court of this state entered in compliance with the provisions of West

Virginia Rule of Criminal Procedure 11 or Rule 10 of the West Virginia Rules

of Criminal Procedure for Magistrate Courts and applicable judicial decisions,

the court may, upon motion, defer acceptance of the guilty plea and defer further

adjudication thereon and release the defendant upon such terms and conditions

as the court deems just and necessary. Terms and conditions may include, but

are not limited to, periods of incarceration, drug and alcohol treatment,

counseling and participation in programs offered under articles eleven-a,

eleven-b and eleven-c, chapter sixty-two of this code.

(b) If the offense to which the plea of guilty is entered is a felony, the circuit court

may defer adjudication for a period not to exceed three years. If the offense to

which the plea of guilty is entered is a misdemeanor, the court may defer

adjudication for a period not to exceed two years.

(c) If the defendant complies with the court-imposed terms and conditions he or

she shall be permitted to withdraw his or her plea of guilty and the matter

dismissed or, as may be agreed upon by the court and the parties, enter a plea

of guilty or no contest to a lesser offense.

(d) In the event the defendant is alleged to have violated the terms and conditions

imposed upon him or her by the court during the period of deferral the

prosecuting attorney may file a motion to accept the defendant’s plea of guilty

and, following notice, a hearing shall be held on the matter.

(e) In the event the court determines that there is reasonable cause to believe that

the defendant violated the terms and conditions imposed at the time the plea

was entered, the court may accept the defendant’s plea to the original offense

and impose a sentence in the court’s discretion in accordance with the statutory

penalty of the offense to which the plea of guilty was entered or impose such

other terms and conditions as the court deems appropriate.

(f) The procedures set forth in this section are separate and distinct from that set

forth in West Virginia Rule of Criminal Procedure 11(a)(2).

2

specific terms and conditions. Pursuant to the agreement, petitioner was required to

fully cooperate with the State on the prosecution of this and pending cases against

any and all co-defendants. . . . This cooperation includes the [petitioner] providing

recorded, truthful, and full debriefings to the State about the aforementioned crimes

. . . . Any failure by the [petitioner] to cooperate fully and truthfully as directed by

the Berkeley County Prosecuting Attorney’s Office or other state and local law

enforcement authorities identified by this office in any and all matters relevant to

this matter will constitute a breach of this agreement by the [petitioner].

In exchange, the State agreed to dismiss all remaining counts of the indictment against

petitioner.

The deferred adjudication agreement further provided that,

[i]f the prosecuting attorney or the Probation department files a motion to accept

[petitioner’s] plea of guilty based upon an allegation that [petitioner] violated the

terms and conditions imposed upon her by the court during the period of deferral

and, after a hearing, the circuit court determines that there is reasonable cause to

believe that the [petitioner] violated the terms and conditions, the Court shall enter

the felony offense and sentence [petitioner] at the Court’s discretion. [Petitioner]

specifically waives any right to graduated sanctions that may exist pursuant to W.

Va. Code 61-11-22a or 61-12-10.

However, under the agreement, “if [petitioner] successfully completes the period of deferral, the

[petitioner] may withdraw her plea to the felony and enter a plea to misdemeanor possession of a

controlled substance, marijuana [§ 60-4-401(c)] a lesser included offense, and be sentenced to a

fine.”

The circuit court thereafter accepted the agreement and entered a pretrial diversion order

on January 31, 2018. Relevant to this appeal, additional terms and conditions to the deferred

adjudication agreement were agreed upon and appended to the court’s order, including that

petitioner “not have any direct or indirect contact with any . . . co-defendant . . . .” and that

petitioner “not use, consume, purchase, possess, or distribute any narcotics, marijuana, or other

controlled substance, unless prescribed for him or her by a physician.”

Meanwhile, the trial of petitioner’s co-defendant, Mr. Moore, was scheduled to proceed on

all three counts of the indictment.3 Petitioner was subpoenaed to testify. In preparation for Mr.

Moore’s trial, petitioner and her counsel twice met with the assistant prosecuting attorney and

Trooper Walker regarding her testimony. The meetings with petitioner were memorialized in an

August 1, 2018, memorandum prepared by the assistant prosecuting attorney, Kevin J. Watson

(“APA Watson”), and signed by both APA Watson and Trooper Walker. The memorandum noted

that, at the first meeting, petitioner denied knowing anything about the marijuana that was found

in Mr. Moore’s vehicle; admitted “that she thought something might be up, but didn’t know if [Mr.

3

The circuit court rejected a proposed plea agreement between Mr. Moore and the State.

3

Moore] sold marijuana”; and maintained that “she didn’t know anything about a plan to sell or

distribute” the marijuana, stating “I don’t know and I won’t assume.” During that meeting,

petitioner also “maintained that she didn’t know [Mr. Moore] well, that they were just having sex

but weren’t in a relationship.”

At the second meeting, the memorandum noted, petitioner eventually admitted that she had

been in a serious relationship with Mr. Moore, and that, even though he often stayed at her house,

did not have a car, and petitioner would often give him a ride, she denied “any detailed knowledge

about Mr. Moore’s marijuana operation/sales.” Regarding the marijuana that was found in the

vehicle at the time of her arrest, petitioner advised that Mr. Moore “briefly mentioned to her about

selling the Marijuana to 2 different dispensaries in Whiteplains, N[ew] Y[ork] (near New York

City), he said he wanted to see what they thought of his stuff.” Petitioner further advised that “she

didn’t know anything about Abdul Kamara [the other passenger], and that he just showed up one

day, she believed they [Kamara and Moore] lived together in California for a while.” Regarding

photographs that were found on Mr. Moore’s phone of packages that contained marijuana that had

shipping labels addressed to petitioner on them, petitioner stated that, although she lived alone,

she never received any such packages and could not explain the pictures on Mr. Moore’s phone.

Regarding the gun that was found vacuum-sealed in the vehicle, petitioner claimed that it belonged

to her, could not explain why male clothing was found in the bag with the gun, and “specifically

denied wiping it for fingerprints or packaging it . . . for any illegal or bad purposes.” Finally,

although petitioner “agreed with Trooper [W]alker that [Mr. Moore] had used her, and indicated

that they were not together now and they don’t talk[,]” petitioner was present at Mr. Moore’s pre-

trial hearing “and was seated behind Mr. Moore—seemingly directly contradicting her statements

that they were not together now and they don’t talk.” In sum, the memorandum stated:

It was clear that [petitioner] was minimizing her knowledge and relationship with

Mr. Moore, was directly untruthful about several matters, and generally was not

cooperating with law enforcement on this matter. The State proceeded with the jury

trial of Mr. Moore without [petitioner as a witness], based in large part upon her

uncooperativeness and untruthfulness.4

....

During the statements, when [petitioner] would speak about marijuana, Joshua

Moore, or the firearm, her voice and body language would change, making it appear

as though she was being deceitful.

(Footnote added).

On August 14, 2018, the State filed a Motion to Revoke Deferred Adjudication and Accept

the Defendant’s Plea of Guilty. The State requested a hearing “to determine if there is reasonable

cause to believe that the defendant violated the terms and conditions imposed[,]” including the

requirements that she “shall truthfully answer all inquiries of . . . any law enforcement officer[,]”

and “shall not have any direct or indirect contact with any . . . co-defendant . . . .” Upon such a

4

Mr. Moore was convicted on all three counts of the indictment.

4

finding, the State requested that the court “accept and adjudicate [petitioner] upon the guilty plea

to Possession With Intent to Deliver Marijuana . . . and sentence [her] in the [c]ourt’s discretion.”

The State filed a supplement to its motion to revoke on September 7, 2018, in which it

alleged that petitioner violated an additional term and condition of her deferred adjudication—that

is, petitioner tested positive for marijuana despite the condition directing that she not consume

marijuana or any other controlled substance.

A revocation hearing was conducted on September 17, 2018, at which Trooper Walker

testified.5 Trooper Walker’s testimony was consistent with the observations made in the August 1,

2018, memorandum. In an order entered on September 18, 2018, the circuit court found that the

evidence presented at the September 17th hearing “show[ed] reasonable cause to believe that

[petitioner] violated a condition of her Deferred Adjudication Agreement as alleged” by the State.

The court found:

Specifically, [petitioner] was untruthful regarding her relationship with the co-

defendant who was the target of the investigation. In addition to being a violation

of her terms of deferred adjudication, this was material because it was bargained

for by the State in the plea agreement. [Petitioner] got her bargained[-]for relief,

but the State did not get a witness on the inside of the operation.

The court ordered that a pre-sentence investigation report be prepared and scheduled an additional

hearing for entry of judgment and sentencing.

On December 10, 2018, the circuit court conducted a disposition hearing on the State’s

motion to revoke.6 According to its December 20, 2018, order,

[p]rior to hearing argument, the [c]ourt noted the binding nature of the plea

agreement: specifically, that paragraph 7, line 5 of the agreement states that the

[c]ourt “shall” enter the conviction if the Court finds that [petitioner] violated a

term of her deferred adjudication. The [c]ourt noted that[,] pursuant to [] its

previous unequivocal acceptance of the plea agreement, and Syl. Pts. 4 and 5 of

State ex rel. Brewer v. Starcher, 195 W. Va. 185, 189, 465 S.E.2d 185, 189 (1995),

it believes it is without jurisdiction to place [petitioner] back upon deferred

adjudication.7

5

Petitioner’s probation officer, Lara Nine, also testified.

6

A copy of the December 10, 2018, hearing transcript was not made a part of the appendix

record.

7

Syllabus points 4 and 5 of State ex rel. Brewer v. Starcher, 195 W. Va. 185, 465 S.E.2d

185 (1995) held:

Once a circuit court unconditionally accepts on the record a plea agreement

under Rule 11(e)(1)(C) of the West Virginia Rules of Criminal Procedure, the

circuit court is without authority to vacate the plea and order reinstatement of the

5

At petitioner’s request, the circuit court continued the hearing on the motion to revoke and

“specifically[,] on the issue of the [c]ourt’s ability to enter the conviction, and any

sentencing/disposition issues[.]”

Following a hearing on February 11, 2019, the circuit court entered an order on March 13,

2019, that concluded that petitioner “does now stand convicted of the offense of possession with

the intent to distribute [sic] marijuana, a felony,” and sentenced her to one to five years in prison,

which sentence was ordered to be suspended in favor of probation for five years. The court stayed

its order pending this appeal.

This Court reviews the circuit court’s order under the following standard:

In reviewing challenges to the findings and conclusions of the circuit court,

we apply a two-prong deferential standard of review. We review the final order and

the ultimate disposition under an abuse of discretion standard, and we review the

circuit court’s underlying factual findings under a clearly erroneous standard.

Questions of law are subject to a de novo review.

Syl. Pt. 2, State v. Hinchman, 214 W. Va. 624, 591 S.E.2d 182 (2003) (citation omitted).

In her first assignment of error, petitioner argues that the circuit court erred in finding that

reasonable cause existed that she violated the terms of the deferred adjudication agreement, which

required that she “fully cooperate with the State on the prosecution of” Mr. Moore, including that

she “provid[e] recorded, truthful, and full debriefings to the State about the . . . crimes.” Petitioner

argues that she substantially complied with the agreement by truthfully informing law enforcement

that Mr. Moore was driving to New York for the purpose of delivering the marijuana to a

dispensary. Petitioner argues that she was prepared to testify at Mr. Moore’s trial and that her

testimony would have helped to prove the charges on which he was being tried – i.e., possession

with intent to deliver marijuana, transportation of a controlled substance into the state, and

conspiracy to commit possession with intent to deliver marijuana. She contends that Trooper

Walker incorrectly determined that she was untruthful because her statements did not comport

with his theory that Mr. Moore intended to sell the marijuana to a gang in New York, which

petitioner found to be “preposterous” and without a basis in fact. In any event, petitioner argues,

there was overwhelming evidence presented to convict Mr. Moore and, therefore, her testimony

original charge. Furthermore, after a defendant is sentenced on the record in open

court, unilateral modification of the sentencing decision by the circuit court is not

an option contemplated within Rule 11(e)(1)(C).

A circuit court has no authority to vacate or modify, sua sponte, a validly

accepted guilty plea under Rule 11(e)(1)(C) of the West Virginia Rules of Criminal

Procedure because of subsequent events that do not impugn the validity of the

original plea agreement.

6

was not necessary. Finally, petitioner argues that whether she was totally forthcoming about the

extent of her romantic relationship with Mr. Moore was not material to the determination of

whether she fully and truthfully cooperated with the State in connection with Mr. Moore’s

prosecution.

We find no error. Trooper Walker’s testimony revealed that petitioner was not truthful

about her relationship with Mr. Moore, and, in his view, petitioner was also untruthful about the

actual purpose of transporting the marijuana to New York, as her statements were not consistent

with the evidence as they presented it to her.8 This Court has repeatedly stated that, as a reviewing

court, we “cannot assess witness credibility through a record.” Michael D.C. v. Wanda L.C., 201

W. Va. 381, 388, 497 S.E.2d 531, 538 (1997). See also Gum v. Dudley, 202 W. Va. 477, 484, 505

S.E.2d 391, 398 (1997) (“The trial court [is in the best position to] observe[ ] the demeanor of the

witnesses . . . that a record simply cannot convey.”); State v. Butcher, 165 W. Va. 522, 527, 270

S.E.2d 156, 159 (1980) (“The trial court had the benefit of observing the demeanor of the witness

as he testified, and we are without such benefit.”). Petitioner has failed to show that the circuit

court was clearly wrong in finding that there was reasonable cause to believe that petitioner

violated the condition of her deferred adjudication agreement requiring that she fully and truthfully

cooperate with the state in connection with Mr. Moore’s prosecution. See Hinchman, 214 W. Va.

at 626, 591 S.E.2d at 184, syl. pt. 2. Further, petitioner’s argument that her allegedly untruthful

characterization of her relationship with Mr. Moore was not material to the investigation of his

case is not compelling. As the circuit court correctly found, the State entered into the deferred

adjudication agreement with petitioner on the condition that she provide inside information about

Mr. Moore’s drug distribution operation. She refused to provide the bargained-for information.

We find no error in the court’s conclusion that petitioner’s breach of the agreement was material.

Further, though not included in the circuit court’s revocation order, evidence was presented

that petitioner committed additional violations of her agreement – that is, the requirements that she

not have contact with Mr. Moore or consume marijuana. The record reveals that petitioner attended

Mr. Moore’s trial seemingly in support of him and, further, that she tested positive for marijuana

during her period of probation/pre-trial release. Petitioner does not dispute that she violated these

conditions of her deferred adjudication agreement. See Syl. Pt. 11, State ex rel. Vernatter v.

Warden, W. Virginia Penitentiary, 207 W. Va. 11, 528 S.E.2d 207 (1999) (“‘This Court may, on

appeal, affirm the judgment of the lower court when it appears that such judgment is correct on

any legal ground disclosed by the record, regardless of the ground, reason or theory assigned by

the lower court as the basis for its judgment.’ Syllabus point 3, Barnett v. Wolfolk, 149 W.Va. 246,

140 S.E.2d 466 (1965).”). Based upon the foregoing, therefore, we conclude that the circuit court

did not err in finding that there was reasonable cause to believe that petitioner violated the terms

and conditions of her deferred adjudication agreement.

8

As noted in the memorandum, which was written after the completion of Mr. Moore’s

jury trial, “Trooper Walker presented [petitioner] with a factual scenario that the evidence was

pointing to (and that the jury apparently foun[d] beyond a reasonable doubt at Mr. Moore’s jury

trial). In response, [petitioner] stated that Trooper Walker can have his opinion but she doesn’t

know anything about that.”

7

We next address petitioner’s assignment of error that the circuit court erred in determining

that it did not have the discretion to continue petitioner on deferred adjudication. The agreement

stated, in relevant part, as follows:

If the prosecuting attorney or the Probation department files a motion to accept

[petitioner’s] plea of guilty based upon an allegation that [petitioner] violated the

terms and conditions imposed upon her by the court during the period of deferral

and, after a hearing, the circuit court determines that there is reasonable cause to

believe that the defendant violated the terms and conditions, the Court shall enter

the felony offense and sentence defendant at the Court’s discretion. [Petitioner]

specifically waives any right to graduated sanctions that may exist pursuant to W.

Va. Code 61-11-22a or 61-12-10.

(Emphasis added).

Petitioner argues that the emphasized language – “[i]f . . . the circuit court determines that

there is reasonable cause to believe that the defendant violated the terms and conditions, the Court

shall enter the felony offense and sentence defendant at the Court’s discretion” – coupled with the

language set forth in West Virginia Code § 61-11-22a(e), afforded the circuit court the discretion

not to enter the felony offense of possession with intent to deliver marijuana, but to continue

petitioner on deferred adjudication (i.e., probation), with additional conditions. West Virginia

Code § 61-11-22a(e) provides:

In the event the court determines that there is reasonable cause to believe that the

defendant violated the terms and conditions imposed at the time the plea was

entered, the court may accept the defendant’s plea to the original offense and

impose a sentence in the court’s discretion in accordance with the statutory penalty

of the offense to which the plea of guilty was entered or impose such other terms

and conditions as the court deems appropriate.

This Court has made clear that “[a]s a matter of criminal jurisprudence, a plea agreement

is subject to principles of contract law insofar as its application insures a defendant receives that

to which he is reasonably entitled.” Brewer, 195 W. Va. at 192, 465 S.E.2d at 192. Relying on

Paroline v. United States, 572 U.S. 434, 447 (2014), petitioner argues that this Court should apply

the canon of statutory construction that provides that “‘[w]hen several words are followed by a

clause which is applicable as much to the first and other words as to the last, the natural

construction of the language demands that the clause be read as applicable to all.’” (quoting Porto

Rico Railway, Light & Power Co. v. Mor, 253 U.S. 345, 348 (1920)).9 At the very least, petitioner

argues, the phrase “at the Court’s discretion” in the deferred adjudication agreement should be

construed as modifying both the entry of the felony offense and sentencing. According to

petitioner, the burden was on the State to draft the agreement with clarity and, because it failed to

do so, it must be construed against the State and in favor of petitioner:

Due to the significant constitutional rights that a criminal defendant waives

in connection with the entry of a guilty plea, the burden of insuring both precision

9

Petitioner identifies this canon of construction as the “series qualifier” canon.

8

and clarity in a plea agreement is imposed on the State. Consequently, the existence

of ambiguity in a court-approved plea agreement will be construed against the State

and in favor of the defendant.

Syl. Pt. 3, State ex rel. Thompson v. Pomponio, 233 W. Va. 212, 757 S.E.2d 636 (2014).

We disagree as we do not find the deferred adjudication agreement to be ambiguous and,

as a result, conclude that rules of statutory construction do not apply. We have explained that

“‘[i]t is not the right or province of a court to alter, pervert or destroy the clear

meaning and intent of the parties as expressed in unambiguous language in their

written contract or to make a new or different contract for them.’ Syllabus point 3,

Cotiga Development Co. v. United Fuel Gas Co., 147 W.Va. 484, 128 S.E.2d 626

(1962).” Syl. Pt. 3, Cabot Oil & Gas Corp. v. Huffman, 227 W.Va. 109, 705 S.E.2d

806 (2010).

State v. Stewart, No. 18-0006, 2019 WL 181479, *5 (W. Va. Jan. 14, 2019) (memorandum

decision). Petitioner’s assertion that the deferred adjudication agreement is ambiguous does not

make it so. We recognize that West Virginia Code § 61-11-22a(e) gives courts the discretion to

accept a defendant’s plea to the original offense and impose a sentence where there is a reasonable

cause to believe the terms and conditions of a plea agreement have been violated. In this case, as

authorized by West Virginia Code § 61-11-22a(e), the agreement clearly required the circuit court

to enter the original felony offense as evidence by the use of the word “shall,” see generally Syl.

Pt. 1, Nelson v. W. Va. Pub. Emp. Ins. Bd, 171 W. Va. 445, 300 S.E.2d 86 (1982) (holding that the

word “shall . . . should be afforded a mandatory connotation”), while also allowing it to sentence

petitioner “at [its] discretion.” The circuit court adhered to the plain language of the agreement

when, upon finding that petitioner violated the agreement, it entered the offense of possession with

intent to deliver marijuana, and, in its discretion, sentenced petitioner to a period of five years in

prison, which sentence it suspended in favor of five years of probation. We, therefore, find

petitioner’s argument that the agreement is ambiguous and should have been construed against the

State and in her favor to be without merit.

Additionally, petitioner argues that if the agreement is deemed to be unambiguous, she did

not make a knowing, intelligent, and voluntary waiver of her statutory right to have the circuit

court exercise discretion in imposing the felony conviction upon finding a violation. According to

petitioner, the discretion afforded the circuit court in deciding disposition, as set forth in West

Virginia Code § 61-11-22a(e), “is an important due process right that [petitioner] would be

required to waive.” We find no error.

The record reveals that, during the January 25, 2018, plea hearing, it was petitioner’s

counsel who summarized the deferred adjudication agreement as one where

[petitioner] would be tendering a conditional plea to the felony offense of

possession with intent to deliver marijuana. And if she’s successful on three years

of supervised probation, it would be reduced down to misdemeanor of simple

possession. And, of course, if she is not successful, then the felony would be entered

against her.

9

(Emphasis added).

The circuit court proceeded to conduct the plea colloquy, explaining to petitioner that

I have to ask you certain questions in order to take a valid plea. Now, this is

deferred, so, this is all, you know, the way the lawyers think is: What’s the worst

that’s going to happen? So all of this is going to be phrased as, you know if you

were to at some point in the indefinite future violate the terms of the deferral, at

that point you come back, we have a hearing, you did or you didn’t. If I find

reasonable cause to believe you did, then, you know, we enter judgment on the

severer of the charges, the felony possess [sic] with intent to deliver. And so that’s

the reasons for all this, you know, procedure, with respect to it, because taking a

felony plea is a big deal.

(Emphasis added). Petitioner’s counsel did not object or otherwise correct the circuit court’s

explanation of the agreement to petitioner. Finally, the court advised petitioner that

what [the deferred adjudication agreement] does is, you know, contingent on how

you perform, if you do well, then you get the possession if you – if there’s a problem

and we have a hearing and it is determined that you have a problem, the next step

is enter judgment on the felony conviction.

And then, of course, everybody has to argue what they think is right for sentencing,

and that could mean a penitentiary sentence for a felony.

Do you understand that?

A. Yes, sir.

(Emphasis added).

The record thus clearly shows that petitioner understood that a violation of the deferred

adjudication agreement required the circuit court to enter judgment on the felony conviction of

possession with intent to deliver marijuana while allowing it to sentence her in its discretion.

Therefore, we conclude that, if petitioner was required to waive her rights under West Virginia

Code § 61-11-22a(e), she did so knowingly, intelligently, and voluntarily.

Petitioner also argues that the parties intended that the deferred adjudication agreement

give the circuit court full discretion in both entry of the felony conviction and sentencing, as

provided for in West Virginia Code § 61-11-22a(e), and that the court erred in failing to reform

the agreement to reflect the same. See Syl. Pt. 4, Smith v. Smith, 219 W. Va. 619, 639 S.E.2d 711

(2006) (“A mutual mistake is one which is common to all parties, wherein each labors under the

same misconception respecting a material fact or provision within the agreement.”). We find no

error. As we have already established, petitioner clearly understood that the unambiguous language

of the agreement did not afford the circuit court discretion with regard to entering judgment on the

10

felony conviction of possession with intent to deliver marijuana. Thus, the circuit court did not err

in refusing to reform the deferred adjudication agreement.

Finally, we address petitioner’s assignment of error that the circuit court erred in finding

that the State did not violate her due process rights by failing to disclose impeachment evidence

regarding Trooper Walker. Petitioner contends that she learned, via media reports, that Trooper

Walker had been terminated from his employment following his involvement in the beating of a

juvenile during the course of an arrest and that she requested information from the State as to

whether Trooper Walker had lied on official police documents relating to that incident. Petitioner

argues that the State failed to provide the requested information, that the circuit court failed to

reopen the revocation proceedings, and that the court erred in finding that her due process rights

were not violated by the same.

We find no error. Petitioner fails to point to anywhere in the record where the circuit court

considered whether petitioner was entitled to Trooper Walker’s personnel records or other

information regarding the arrest of the juvenile. Although petitioner requested the records in

Defendant Shaniqua Whindleton’s Memorandum Regarding Interpretation of Plea Agreement,

which she filed on February 7, 2019, our review of the February 11, 2019, hearing transcript

reveals that petitioner failed to raise the issue at that time or to otherwise request that the revocation

proceedings be reopened for consideration of the same. This Court has cautioned that “[i]t is the

responsibility of the parties to ensure that the record is preserved for our review. Indeed,

[petitioner], as the moving party, must assume the burden of bringing his motion to the attention

of the trial court.” State v. Garrett, 195 W. Va. 630, 642, 466 S.E.2d 481, 493 (1995) (citing State

v. Moran, 168 W. Va. 688, 691, 285 S.E.2d 450, 453 (1981)). See State v. Lively, 226 W. Va. 81,

92, 697 S.E.2d 117, 128 (2010) (quoting State v. LaRock, 196 W. Va. 294, 316, 470 S.E.2d 613,

635 (1996) (“‘[I]n general, the law ministers to the vigilant, not to those who sleep on their rights.

. . . When a litigant deems himself or herself aggrieved by what he or she considers to be an

important occurrence in the course of a trial . . . he or she ordinarily must object then and there or

forfeit any right to complain at a later time.’”). Thus, we find no error in the proceedings below.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: May 26, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison

NOT PARTICIPATING:

Justice Margaret L. Workman

11