Kennedy v. Frazier
| Decision Date | 18 March 1987 |
| Docket Number | No. 17501,17501 |
| Citation | 178 W.Va. 10,357 S.E.2d 43 |
| Court | West Virginia Supreme Court |
| Parties | John KENNEDY v. Hon. John R. FRAZIER, Judge, etc. |
Syllabus by the Court
1. An accused may voluntarily, knowingly and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime, if he intelligently concludes that his interests require a guilty plea and the record supports the conclusion that a jury could convict him.
2. Although a judge would be remiss to accept a guilty plea under circumstances where the weight of the evidence indicates a complete lack of guilt, a court should not force any defense on a defendant in a criminal case, particularly when advancement of the defense might end in disaster.
David C. Smith, Princeton, for appellant.
Charles G. Brown, Atty. Gen., David W. Johnson, Asst. Atty. Gen., Charleston, for appellees.
The petitioner, John Kennedy, was indicted on a two count indictment. Petitioner and the prosecuting attorney entered into a plea agreement under which petitioner would plead guilty to delivery of marijuana in return for dismissal of a second charge, delivery of oxycodone. In addition to dismissal of the second charge, the prosecution also agreed not to seek an enhanced sentence under W.Va.Code, 61-11-18 [1943], or W.Va.Code, 60A-4-408 [1971].
The petitioner and his counsel first presented the plea agreement to the respondent judge on 25 September 1986, but at that time the respondent remanded the petitioner to a mental health facility to determine whether respondent was under the influence of drugs. Petitioner presented the plea agreement to the respondent again on 10 October 1986. At the 10 October hearing petitioner indicated that he was guilty and his counsel represented to the court that there were no meritorious defenses. The judge found the guilty plea to be voluntarily and intelligently given, and referred the matter to the probation department for a pre-sentence investigation. During this hearing no mention was made of possible police misconduct.
The pre-sentence investigation was submitted to the court on 22 October 1986 and this report included statements by petitioner indicating that he had been entrapped, and that improper sexual advances had been made toward him by a police officer. Specifically, the pre-sentence report said:
I interviewed John Kennedy at the Mercer County Jail on October 17, 1986. He states that this was the 7th or 8th time that Detective Staton and Beverly Wallace had been to his house. He states that the first time they came he told them he did not sell drugs anymore. The 5th or 6th time they came, John states that he told Staton and Wallace he could take them to Princeton and introduce them to a cocaine supplier. He says they were not interested.
John states that he no longer sold drugs and only had in his possession marijuana and Tylox for his personal usage. He states that Staton and Wallace pressured him so much to sell to them that he finally gave in and sold the marijuana and Tylox from his personal supply. John further stated that Beverly Wallace was making inappropriate sexual advances toward him in order to get him to sell the drugs. He states he was fearful of further incident at his home if he did not agree to make the transaction.
Based upon this report, a hearing was held on 24 October 1986, at which the respondent judge rejected the plea agreement and scheduled the matter for trial over petitioner's strenuous objection. During this hearing the court gave the following reasons for his decisions:
The last case I have on my calendar before we start the trial is State versus John Kennedy. Let the record show that Mr. Kennedy is here today with his attorney, Mr. David Smith. Mr. Knight represents the State.
Let me say, before we get into this at all, that I have received a copy of the presentence report, that under the defendant's version--Mr. Knight, I don't know if you've had a chance--Mr. Stevens, you might confer there with Mr. Knight on this matter--that under the defendant's version, pretty much, Mr. Kennedy is saying that he didn't want to make these sales, that he resisted continuously, that he was pressured significantly by the police to the--including the extent that the undercover agent made sexual offers to him to get him to sell these drugs.
And under those circumstances, it wouldn't appear proper--but I'll hear counsel on this before I make any final decision whether to accept the plea agreement or not. But under those circumstances, it certainly gives the Court considerable pause as to whether to accept the plea agreement or not.
The trial court also stated:
Well, of course, you with your experience are familiar with the defense of entrapment. That sets a pretty good defense in his statement there. Of course, we're not--you know, I'm familiar with the Alfred (sic) decision but, of course, the test in West Virginia is the Myers vs. Losch and Frazier decision, whether in the public interest and the fair administration of justice the Court should accept this plea agreement.
The Court doesn't find the plea agreement--with his very strong, very adamant position that he was coerced into making these buys by extreme pressure by officers and the undercover agent--and under those circumstances, the Court doesn't feel that the public interest and the fair administration of justice would be served.
As you pointed out, in all likelihood he would receive some sort of sentence in this case. It's not my desire to send somebody to the penitentiary who is not guilty, who has been pressured, under the circumstances that he alleges in his statement there, by the police officers.
Under the facts of this case we find that the trial court abused his discretion when he rejected the plea agreement in order to vindicate the defendant's rights. The case of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) stands for the proposition that a guilty plea that...
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