Becton v. Hun

• Decision Date: 18 May 1999
• Docket Number: No. 25364.,25364.
• Citation: 205 W.Va. 139,516 S.E.2d 762
• Court: West Virginia Supreme Court
• Parties: William "Benji" BECTON, Appellant, v. Nicholas HUN, Commissioner, West Virginia Department of Corrections, Appellee.

516 S.E.2d 762

205 W.Va. 139

William "Benji" BECTON, Appellant, v. Nicholas HUN, Commissioner, West Virginia Department of Corrections, Appellee.

No. 25364.

Supreme Court of Appeals of West Virginia.

Submitted January 26, 1999.

Decided May 18, 1999.

Deborah A. Lawson, Esq., Public Defender, Martinsburg, West Virginia, Attorney for Appellant.

Chris Quasebarth, Esq., Assistant Prosecuting Attorney, Martinsburg, West Virginia, Attorney for Appellee.

WORKMAN, Justice:

This is an appeal from the February 26, 1998,¹ final order of the Circuit Court of Berkeley County, West Virginia, denying the post-conviction habeas corpus petition brought by the Appellant, William "Benji" Becton. On May 19, 1989, the Appellant was sentenced in the underlying criminal proceeding to a forty-year term of imprisonment in the state penitentiary, following a jury conviction on one count of aggravated robbery. We address only the issue of whether the Appellant's trial counsel's failure to communicate to the Appellant a plea proposal made by the prosecution constituted ineffective assistance of counsel.² Based upon a review of the parties' briefs and arguments, the record and all other matters submitted before this Court, we conclude that the Appellant's trial counsel's ineffectiveness in communicating a plea agreement proposal made by the prosecution to the Appellant warrants reversal and remand of this case for the sole purpose of resentencing the Appellant in conformance with the plea agreement proposal at issue.

A. FACTS

During the October 1986 term, the Appellant was indicted by the Berkeley County Grand Jury on one count of burglary and six counts of aggravated robbery. The aggravated robbery charges arose from crimes which occurred on May 6, 1986, when three separate pairs of people parked at or near the rest area southbound on Interstate 81, just south of the border between West Virginia and Maryland, were robbed by a suspect using a weapon.³ Even though the Appellant was charged with six counts of aggravated robbery, upon the conclusion of the presentation of all the evidence, the jury convicted the Appellant on one count of aggravated robbery. The Appellant was sentenced to forty years imprisonment.

In early 1996, the Appellant, while incarcerated, was reviewing his file that he had requested from his trial counsel, Steven M. Askin. During this review, the Appellant discovered a letter dated April 28, 1987, which was addressed to Mr. Askin, from B. Craig Manford, Assistant Prosecuting Attorney of Berkeley County. The letter communicated the offer of a plea bargain in which the Appellant would plead guilty to a single count of aggravated robbery in exchange for a recommendation of a ten-year sentence⁴ by the prosecutor to the trial court.

It is significant to note that the Appellant states in his brief that the letter "offer[ed] a plea bargain which would have resulted in a sentence of ten (10) years' incarceration for a guilty plea to a single count of aggravated robbery." The uncontroverted evidence at the habeas corpus hearing was that the presiding judge at the time of the underlying action, the Honorable Patrick Henry, did not accept binding plea agreements.⁵ Consequently, the Appellant's statement that the plea agreement definitively would have resulted in a ten-year sentence is misguided.

The Appellant testified at the habeas corpus proceeding that the above-mentioned plea proposal was never communicated to him or any member of his family. The Appellant further testified that the best plea bargain offer communicated to him by Mr. Askin was one in which the State was willing to recommend a fifteen to forty year indeterminate sentence in exchange for his guilty plea. According to the testimony of the Appellant's sister, Sheila Freeze, this offer of a sentence recommendation of fifteen to forty years by the State to the trial court, however, was rejected upon advice of counsel, with "Mr. Askin ... telling my parents that Benjie would never see a day in prison."

Mr. Askin testified that he had no memory about the details of the Appellant's case. He further testified, however, that it was his pattern and practice to forward plea bargain proposals to his clients and then to follow up with a client meeting. Attempts were made to obtain records of Mr. Askin's communication of the proposal to the Appellant.⁶ No such records were located.

B. FAILURE TO DISCLOSE PLEA AGREEMENT

The only issue requiring this Court's attention involves whether the Appellant's trial counsel's failure to communicate to the Appellant a non-binding plea agreement to a single count of aggravated robbery, wherein the State would recommend to the trial court a sentence of ten years, constitutes ineffective assistance of counsel.⁷ Quite simply stated, the Appellant argues that had he known of this plea proposal, he would have accepted it. The Appellee, however, argues that the lower court in the habeas proceeding did not err in holding that the Appellant failed to prove that his trial counsel was ineffective.

In State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), this Court recently revisited what is necessary to prove ineffective assistance of counsel. In Miller, we held in syllabus points five and six that:

In the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel's performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.

In reviewing counsel's performance, courts must apply an objective standard and determine whether, in light of all the circumstances, the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsel's strategic decisions. Thus, a reviewing court asks whether a reasonable lawyer would have acted under the circumstances, as defense counsel acted in the case at issue.

194 W.Va. at 6-7, 459 S.E.2d at 117-18, Syl. Pts. 5 and 6.

In order to meet the first prong of the Miller test and prove that his trial counsel's performance in failing to communicate the plea bargain offer to him was deficient under an objective standard of reasonableness, the Appellant relies upon the Standard 4-6.2 of the ABA Standards for Criminal Justice (2d ed. 1980) and the commentary thereto which was cited by this Court with approval in Tucker v. Holland, 174 W.Va. 409, 327 S.E.2d 388 (1985). Standard 4-6.2(a) provides that a defense attorney "`[i]n conducting discussions with the prosecutor ... should keep the accused advised of developments at all times and all proposals made by the prosecutor should be communicated promptly to the accused.'" Tucker, 174 W.Va. at 415, 327 S.E.2d at 394 (quoting Standard 4-6.2(a) of the ABA Standards for Criminal Justice (2d ed. 1980)). Moreover, the commentary to that standard provides:

`Because plea discussions are usually held without the accused being present, the lawyer has the duty to communicate fully to the client the substance of the discussions. It is important that the accused be informed of proposals made by the prosecutor; the accused, not the lawyer, has the right to decide on prosecution proposals, even when a proposal is one that the lawyer would not approve. If the accused's choice on the question of a guilty plea is to be an informed one, the accused must act with full awareness of the alternatives, including any that arise from proposals made by the prosecutor.'

Tucker, 174 W.Va. at 415, 327 S.E.2d at 394 (quoting commentary to Standard 4-6.2(a) of the ABA Standards for Criminal Justice).

While this Court has never been presented with this precise issue of whether a defense counsel's failure to communicate a plea bargain proposal to a defendant constitutes ineffective assistance of counsel, other jurisdictions which have confronted the issue have concluded that it does. See United States v. Rodriguez Rodriguez, 929 F.2d 747, 752 (1st Cir.1991)

("A defendant has a right to be informed by his counsel of a plea offer. Ordinarily, counsel's failure to do so constitutes ineffective assistance of counsel."); Johnson v. Duckworth, 793 F.2d 898, 902 (7th Cir.),

cert. denied, 479 U.S. 937, 107 S.Ct. 416, 93 L.Ed.2d 367 (1986) ("[I]n the ordinary case criminal defense attorneys have a duty to inform their clients of plea agreements proffered by the prosecution, and that failure to do so constitutes ineffective assistance of counsel under the sixth and fourteenth amendments. Apart from merely being informed about the proffered agreement, we also believe that a defendant must be involved in the decision-making process regarding the agreement's ultimate acceptance or rejection."); United States ex rel. Caruso v. Zelinsky, 689 F.2d 435, 438 (3d Cir.1982) ("It would seem that, in the ordinary case, a failure of counsel to advise his client of a plea bargain would constitute a gross deviation from accepted professional standards."); Barentine v. United States, 728 F.Supp. 1241, 1251 (W.D.N.C.), aff'd, 908 F.2d 968 (4th Cir.1990) ("Where defense counsel has failed to inform a defendant of a plea offer... the federal courts have been unanimous in finding that such conduct constitutes a violation of the defendant's Sixth Amendment constitutional right to effective assistance of counsel."); Larochelle v. State, 219 Ga.App. 792, 466 S.E.2d 672, 676 (1996) ("`Objective professional standards dictate that a defendant, absent extenuating circumstances, is entitled to be told that an offer to plead guilty has been made and to be advised of the consequences of the choices confronting him. For counsel to do otherwise amounts to less than reasonably professional...