Duncil v. Kaufman

Decision Date12 June 1990
Docket NumberNo. 19360,19360
Citation183 W.Va. 175,394 S.E.2d 870
CourtWest Virginia Supreme Court
PartiesWilliam C. DUNCIL, Warden v. Hon. Tod J. KAUFMAN, Judge of the Circuit Court of Kanawha County, and Judson Warren White.

2. Notwithstanding that a defendant is to be given a more liberal consideration in seeking leave to withdraw a plea before sentencing, it remains clear that a defendant has no absolute right to withdraw a guilty plea before sentencing. Moreover, a trial court's decision on a motion under Rule 32(d) of the West Virginia Rules of Criminal Procedure will be disturbed only if the court has abused its discretion.

3. A mere declaration of innocence does not entitle a defendant to withdraw his guilty plea. The general rule is that in the exercise of its discretion to permit withdrawal of a guilty plea before sentencing based on a defendant's assertion of innocence, a trial court should consider the length of time between the entry of the guilty plea and the filing of the motion to withdraw, why the grounds for withdrawal were not presented to the court at an earlier point in the proceedings, whether the defendant maintained his innocence throughout the plea proceedings, whether the State's case will be prejudiced, and whether the defendant has articulated some ground in support of his claim of innocence.

4. " 'The burden of proving that a plea was involuntarily made rests upon the pleader.' Syllabus point 3, State ex rel. Clancy v. Coiner, 154 W.Va. 857, 179 S.E.2d 726 (1971)." Syllabus Point 1, State ex rel. Wilson v. Hedrick, 180 W.Va. 689, 379 S.E.2d 493 (1989).

5. "Before a guilty plea will be set aside based on the fact that the defendant was incompetently advised, it must be shown that (1) counsel did act incompetently; (2) the incompetency must relate to a matter which would have substantially affected the fact-finding process if the case had proceeded to trial; (3) the guilty plea must have been motivated by this error." Syllabus Point 3, State v. Sims, 162 W.Va. 212, 248 S.E.2d 834 (1978).

6. It is constitutionally impermissible for a sentence to be enhanced based on a prior invalid conviction.

7. Where a defendant claims that his sentence should be set aside because it was enhanced based on a prior invalid conviction, before the sentence will be vacated, the following requirements must be met: (1) the prior conviction must be unconstitutional; (2) the sentencing judge must have mistakenly believed it was valid; and (3) the prior conviction must have been used to enhance the challenged sentence.

8. A breach of a plea agreement may occur where the State, after having agreed to remain neutral to the sentence to be imposed, fails to do so.

9. "Prohibition will lie to prohibit a judge from exceeding his legitimate powers." Syllabus Point 2, State ex rel. Winter v. MacQueen, 161 W.Va. 30, 239 S.E.2d 660 (1977).

William C. Forbes, Pros. Atty., Mary Beth Kershner, Asst. Pros. Atty., Charleston, W.Va., for William C. Duncil.

Stephen R. Crislip, Robert A. Lockhart, Jackson and Kelly, Charleston, W.Va., for Tod J. Kaufman and Judson Warren White.

Kim Ladewig, Charleston, W.Va., for Judson Warren White.

MILLER, Justice:

This is an original prohibition brought by William C. Duncil, Warden of Huttonsville Correctional Center, (the State) against the Circuit Court of Kanawha County challenging an order dated August 21, 1989. The circuit court found that the State breached a plea agreement, that Judson Warren White (the defendant) should have been allowed to withdraw his guilty plea, and that the sentencing judge impermissibly relied upon a prior void conviction when sentencing the defendant. The circuit court reduced the defendant's sentence to time served.

I. FACTS

The defendant was indicted in the Circuit Court of Kanawha County during the May, 1986, term for ten counts of forgery and ten counts of uttering. On November 19, 1986, the day of his plea hearing, the State offered to dismiss ten counts of the indictment in exchange for the defendant's plea of guilty to the remaining ten counts. The State also offered to recommend consecutive sentences for only five of the remaining counts. After conferring with his attorney, the defendant accepted the State's offer.

On January 20, 1987, the date of the scheduled sentencing hearing, defense counsel made a motion to withdraw the defendant's guilty plea. The defendant asserted that he was innocent of several of the charges and wished to proceed to trial. The circuit court found that the defendant's guilty plea was given voluntarily and knowingly, and it denied the motion. Subsequently, the circuit court sentenced the defendant to 5-to-50 years in prison, the sentence recommended by the plea agreement.

The defendant was confined at the Huttonsville Correctional Center, a medium security prison. On December 21, 1988, he filed a petition for a writ of habeas corpus in the Circuit Court of Randolph County, claiming that his plea was not voluntary, that he had ineffective assistance of counsel, and that he was denied the right to withdraw his guilty plea prior to sentencing. The Circuit Court of Randolph County denied the petition without a hearing on January 26, 1989. On February 21, 1989, the defendant appealed the Circuit Court of Randolph County's dismissal of his habeas corpus petition to this Court.

We accepted the defendant's petition, treated it as a proceeding in habeas corpus, and made it returnable to the Circuit Court of Kanawha County to conduct a hearing to determine whether the defendant's motion to withdraw his guilty plea should have been granted. After the hearing, the respondent judge, the Honorable Tod J Kaufman, found that the defendant should have been allowed to withdraw his plea because (1) it was involuntary, and (2) his counsel was ineffective. The respondent judge also found that the State had breached the plea agreement and that the original trial court considered a void conviction when sentencing the defendant. As relief, the respondent judge reduced the defendant's sentence to the time already served.

II. WITHDRAWAL OF THE GUILTY PLEA

Motions to withdraw guilty pleas are controlled by Rule 32(d) of the West Virginia Rules of Criminal Procedure. 1 As we explained in Syllabus Point 1 of State v. Harlow, 176 W.Va. 559, 346 S.E.2d 350 (1986):

"Rule 32(d) of the West Virginia Rules of Criminal Procedure as it relates to the right to withdraw a guilty or nolo contendere plea prior to sentence permits the withdrawal of a plea for 'any fair and just reason.' "

Rule 32(d) of the Federal Rules of Criminal Procedure also allows withdrawal of a guilty plea before sentencing for any "fair and just reason." The federal courts, in interpreting this provision, have explained: "Notwithstanding that a [defendant] is to be given a more liberal consideration in seeking leave to withdraw a plea before sentencing, it remains clear that a defendant has no absolute right to withdraw a guilty plea before sentencing." United States v. Boone, 869 F.2d 1089, 1091 (8th Cir.), cert. denied, 493 U.S. 822, 110 S.Ct. 81, 107 L.Ed.2d 47 (1989). (Citation omitted). See also United States v. Pellerito, 878 F.2d 1535 (1st Cir.1989); United States v. Martinez, 785 F.2d 111 (3d Cir.1986); United States v. Daniel, 866 F.2d 749 (5th Cir.1989); United States v. Spencer, 836 F.2d 236 (6th Cir.1987); Dolchok v. State, 639 P.2d 277 (Alaska 1982); State v. Mangano, 464 So.2d 1032 (La.App.1985); State v. Boone, 444 A.2d 438 (Me.1982); State v. Bryant, 378 N.W.2d 108 (Minn.App.1985); State v. Cross, 142 Vt. 44, 451 A.2d 1149 (1982). Moreover, a trial court's decision on a motion under Rule 32(d) will be disturbed only if the court has abused its discretion. United States v. Roberts, 570 F.2d 999 (D.C.Cir.1977), aff'd, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980); United States v. Pellerito, supra; United States v. Huff, 873 F.2d 709 (3d Cir.1989); United States v. Triplett, 828 F.2d 1195 (6th Cir.1987); United States v. Boone, supra; Barker v. United States, 579 F.2d 1219 (10th Cir.1978); Gooding v. United States, 529 A.2d 301 (D.C.App.1987); People v. Kokoraleis, 193 Ill.App.3d 684, 140 Ill.Dec. 482, 549 N.E.2d 1354 (1990); People v. Hundley, 181 Mich.App. 137, 449 N.W.2d 121 (1989); State v. Robinson, 388 N.W.2d 43 (Minn.App.1986); State v. Stai, 335 N.W.2d 798 (N.D.1983); Commonwealth v. Anthony, 504 Pa. 551, 475 A.2d 1303 (1984).

A. Defendant's Declaration of Innocence

The defendant contends that his assertion of innocence alone is a "fair and just" reason for granting his Rule 32(d) motion. We disagree. A mere declaration of innocence does not entitle a defendant to withdraw his guilty plea. United States v. Barker, 514 F.2d 208 (D.C.Cir.), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975); Government of Virgin Islands v. Berry, 631 F.2d 214 (3d Cir.1980); United States v. Buckles, 843 F.2d 469 (11th Cir.1988), cert. denied, 490 U.S.1099, 109 S.Ct. 2450, 104 L.Ed.2d 1005 (1989). See also Gooding v. United States, supra; People v. Hundley, supra; Hargrove v. State, 100 Nev. 498, 686 P.2d 222 (1984); Commonwealth v. Cole, 387 Pa.Super 328, 564 A.2d 203 (1989); Goodie v. State, 735 S.W.2d 871 (Tex.Crim.App.1987), review denied, 745 S.W.2d 379 (Tex.Crim.App.1988); State v. Shanks, 152 Wis.2d 284, 448 N.W.2d 264 (Wis.App.1989).

The general rule is that in the exercise of its discretion to permit a withdrawal of a guilty plea before sentencing based on a defendant's assertion of innocence, a trial court should consider the length of time between the entry of the guilty plea and the filing...

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