Myers v. Frazier, s. 16114

CourtSupreme Court of West Virginia
Citation319 S.E.2d 782,173 W.Va. 658
Decision Date27 June 1984
Docket NumberNos. 16114,16111,s. 16114
PartiesAnnetta MYERS v. The Hon. John R. FRAZIER, etc. Annetta MYERS v. Larry E. LOSCH, etc., et al.

Syllabus by the Court

1. With the advent of Rule 11 of the West Virginia Rules of Criminal Procedure, a detailed set of standards and procedures now exists governing the plea bargaining process.

2. "West Virginia Rules of Criminal Procedure, Rule 11, gives a trial court discretion to refuse a plea bargain." Syllabus Point 5, State v. Guthrie, W.Va., 315 S.E.2d 397 (1984).

3. Under Rule 11(e)(2) of the West Virginia Rules of Criminal Procedure, the power is vested in the circuit court to accept or reject a plea agreement or to defer acting on it until the court obtains a presentence report under Rule 32(c) of the West Virginia Rules of Criminal Procedure.

4. A court's ultimate discretion in accepting or rejecting a plea agreement is whether it is consistent with the public interest in the fair administration of justice.

5. As to what is meant by a plea bargain being in the public interest in the fair administration of justice, there is the initial consideration that the plea bargain must be found to have been voluntarily and intelligently entered into by the defendant and that there is a factual basis for his guilty plea. Rule 11(d) and (f). In addition to these factors, which inure to the defendant's benefit, we believe that consideration must be given not only to the general public's perception that crimes should be prosecuted, but to the interests of the victim as well.

6. A primary test to determine whether a plea bargain should be accepted or rejected is in light of the entire criminal event and given the defendant's prior criminal record whether the plea bargain enables the court to dispose of the case in a manner commensurate with the seriousness of the criminal charges and the character and background of the defendant.

7. A plea agreement may be both reasonable and necessary when it is designed to secure a legitimate and important prosecutorial interest.

8. To ensure that the trial court properly exercises its discretion in accepting or rejecting plea agreements, it is incumbent upon the prosecutor to inform the court of his reasons for proposing the plea agreement.

9. A trial court has the right to be informed not only of the terms of the agreement, but also of the circumstances surrounding the criminal episode which is covered by the plea bargain. Additionally, a court is entitled to secure all relevant information surrounding the background, prior criminal record, and the degree of criminal involvement of the defendant to assist it in determining whether to accept or reject the tendered plea bargain.

10. "Though the rule at common law is otherwise, the practice long followed in Virginia, before the separation, and since then in trial courts of this state has become crystalized into our law, and a nolle prosequi entered without the consent of the court will be unavailing to discharge the accused from prosecution." Syllabus Point 2, Denham v. Robinson, 72 W.Va. 243, 77 S.E. 970 (1913).

11. The requirement that a dismissal of criminal charges is ineffective without the consent of the court is incorporated into Rule 48(a) of the West Virginia Rules of Criminal Procedure, which basically follows Rule 48(a) of the Federal Rules of Criminal Procedure. There is ample federal and state authority for the proposition that under such rule, specific reasons must be given by the prosecutor for the dismissal so that the trial court judge can competently decide whether to consent to the dismissal.

12. Most courts hold that as a general rule, a trial court should not grant a motion to dismiss criminal charges unless the dismissal is consonant with the public interest in the fair administration of justice. This public interest standard is the same as the standard applied to the acceptance of plea agreements under Rule 11.

13. The entry of a nolo contendere or a guilty plea pursuant to a plea bargain and the oral pronouncement of a sentence by a circuit court does not impose a double jeopardy bar where the defendant has not served any portion of the sentence.

14. Under Rule 11 of the West Virginia Rules of Criminal Procedure a trial court is not foreclosed from accepting a plea, which is made pursuant to a plea agreement, and conditioning its acceptance upon the receipt of a presentence report. After considering the presentence report, the trial court may reject the plea agreement, in which event it shall permit the defendant to withdraw his plea, pursuant to the procedure outlined in Rule 11(e)(4) of the West Virginia Rules of Criminal Procedure.

15. "As a general rule any person who will be affected or injured by the proceeding which he seeks to prohibit is entitled to apply for a writ of prohibition; but a person who has no interest in such proceeding and whose rights will not be affected or injured by it can not do so." Syllabus Point 6, State ex rel. Linger v. County Court of Upshur County, 150 W.Va. 207, 144 S.E.2d 689 (1965).

16. Most courts have held that in the absence of some express constitutional or statutory provision, a prosecutor has no inherent authority to grant immunity against prosecution.

17. A person who seeks a mandamus to compel prosecution must possess the necessary facts to establish probable cause or stand in some special position such as being the victim of a crime or a close relative of the victim if the victim is deceased or otherwise incapacitated from assisting in the prosecution of the crime. The action must be filed in a circuit court, which can make the necessary findings of fact more efficiently than we can in this Court.

Dan L. Hardway, Charleston, for appellant.

Jesser & Harrington, Keenan, Gallaher & Keenan, Fayetteville, Jack Thompson, Oak Hill, John W. Swisher, Chauncey H. Browning, Atty. Gen., and Greg W. Bailey, Deputy Atty. Gen., Charleston, for appellees.

MILLER, Justice:

Annetta Myers, as a concerned citizen and resident of Fayette County, West Virginia, seeks to have three Fayette County deputy sheriffs tried on charges of sexual assault, false swearing, and related offenses. She has filed separate petitions for writs of prohibition and mandamus before this Court, 1 which we have consolidated for purposes of argument and this opinion. The writ of prohibition sought by the petitioner is directed at Special Judge John Frazier 2 to prohibit him from entering a final order accepting separate agreements presented by Deputies Leland Dempsey and Dave Brown, which recommended a resolution of the charges filed against them. Further relief is sought to prohibit the entry of any order granting immunity to Deputy Rick Pennington. The petitioner seeks a writ of mandamus against Special Prosecutor Larry Losch 3 requiring him to withdraw his promise of immunity to Pennington and to have Pennington indicted and prosecuted on sexual assault and false swearing-related charges.

On October 13, 1982, Pennington, Dempsey, and Brown allegedly forced a 24-year-old woman to perform oral sex on each of them in the bedroom of her trailer. 4 At the time of the alleged offense, the three deputies were on duty, in uniform, and armed with guns. At some time during the ensuing investigation, Special Prosecutor Losch orally agreed to grant immunity to Pennington if he would cooperate in the prosecution of Dempsey and Brown. Pennington agreed to cooperate and was never indicted for any crime. No order approved by a court has been entered granting Pennington immunity.

On March 3, 1983, Dempsey and Brown were indicted for first degree sexual assault, false swearing, and conspiracy to commit false swearing, but this indictment was later found to be defective and was dismissed upon Brown's motion. On September 14, 1983, Dempsey and Brown were again indicted for first degree sexual assault. Special Prosecutor Losch also filed a five-count information against Dempsey and Brown on October 12, 1983, charging each with conspiring to commit false swearing and additionally charging Brown with procuring false swearing and Dempsey with three counts of committing false swearing. These false swearing charges arose out of proceedings before the Fayette County Grand Jury in February, 1983, in which Pennington and Dempsey denied ever having sexual intercourse with the 24-year-old woman. Brown asserted his Fifth Amendment right to remain silent.

Prior to trial, Dempsey and Brown were able, through their respective attorneys, to negotiate agreements with Special Prosecutor Losch. In the written plea agreement presented to Special Judge Frazier, Dempsey agreed to plead nolo contendere to one count of false swearing in return for the dismissal with prejudice of the remaining counts in the information and the sexual assault indictment. The agreement further stated that the prosecutor and Dempsey agreed that probation for a period of not more than five years would be appropriate, with the imposition of any possible fine left up to the court. Brown's agreement indicated that in return for the dismissal with prejudice of the sexual assault indictment and all relevant counts of the misdemeanor information, Brown agreed not to be a county or city police officer in Fayette County, West Virginia for a period of five years.

Special Judge Frazier examined Dempsey, pursuant to Rule 11 of the West Virginia Rules of Criminal Procedure, and determined that the nolo contendere plea was voluntarily and intelligently made. He orally accepted both of the proposed agreements, sentenced Dempsey to five years probation and fined him $1,000. Ms. Myers filed her petitions with this Court prior to the entry of any final written judgment by Special Judge Frazier.


We have sanctioned plea bargain concepts in a number of cases and have stated in State ex rel. Gray v. McClure, W.Va., 242...

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    ...of this Court that allow a judge to withhold his acceptance of a plea until after reading the presentence report, Myers v. Frazier, 173 W.Va. 658, 319 S.E.2d 782 (1984), I believe a court should not ask a defendant to incriminate himself under oath until the court has definitely concluded t......
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