State ex rel. Brewer v. Starcher
| Decision Date | 27 October 1995 |
| Docket Number | No. 22966,22966 |
| Citation | 195 W.Va. 185,465 S.E.2d 185 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia ex rel. Ira Michael BREWER II, Relator, v. Honorable Larry V. STARCHER, Judge of the Circuit Court of Monongalia County, and Susan Tucker, Prosecuting Attorney for Monongalia County, Respondents. |
1. Cases involving plea agreements allegedly breached by either the prosecution or the circuit court present two separate issues for appellate consideration: one factual and the other legal. First, the factual findings that undergird a circuit court's ultimate determination are reviewed only for clear error. These are the factual questions as to what the terms of the agreement were and what was the conduct of the defendant, prosecution, and the circuit court. If disputed, the factual questions are to be resolved initially by the circuit court, and these factual determinations are reviewed under the clearly erroneous standard. Second, in contrast, the circuit court's articulation and application of legal principles is scrutinized under a less deferential standard. It is a legal question whether specific conduct complained about breached the plea agreement. Therefore, whether the disputed conduct constitutes a breach is a question of law that is reviewed de novo.
2. There is no absolute right under either the West Virginia or the United States Constitutions to plea bargain. Therefore, a circuit court does not have to accept every constitutionally valid guilty plea merely because a defendant wishes so to plead.
3. Although the parties in criminal proceedings have broad discretion in negotiating the terms and conditions of a plea agreement, this discretion must be permissible under the West Virginia Rules of Criminal Procedure. Similarly, the decision whether to accept or reject a plea agreement is vested almost exclusively with the circuit court.
4. 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 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).
5. 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. If proven, a charge of fraud or misrepresentation poses a serious threat to the integrity of judicial proceedings. Therefore, the "fraud exception" is adopted as a necessary rule to enhance the administration of justice. This exception is aimed at penalizing deceitful behavior engaged in during the negotiating of a plea agreement, in its presentation to the court, or in its execution by the defendant.
7. As provided by Rule 11(h) of the West Virginia Rules of Criminal Procedure, a violation of Rule 11 does not necessarily require automatic reversal or vacatur. Rather, when a defendant claims that a circuit court failed to comply with Rule 11, a straightforward, two-step harmless error analysis must be conducted: (1) Did the circuit court in fact vary from the procedures required by Rule 11, and (2) if so, did such variance affect substantial rights of the defendant?
8. There are two possible remedies for a broken plea agreement--specific performance of the plea agreement or permitting the defendant to withdraw his plea. A major factor in choosing the appropriate remedy is the prejudice caused to the defendant.
James B. Zimarowski, Morgantown, for Relator.
Daniel DeBiase, Assistant Prosecuting Attorney of Monongalia County, Morgantown, for Respondents.
In this original proceeding seeking a writ of prohibition, the relator requests that we prohibit the respondent, The Honorable Larry V. Starcher, Judge of the Circuit Court of Monongalia County, 1 from adding any additional terms to the aforementioned plea agreement negotiated under Rule 11(e)(1)(C) of the West Virginia Rules of Criminal Procedure. 2
The relator, Ira Michael Brewer II, was indicted by a Monongalia County Grand Jury on one count of unlawful assault and on a second count of wanton endangerment involving a firearm. The events relating to the underlying indictment involve a late night brawl at a bar with the relator and his brother on one side and between two and nine other individuals on the other side. There were allegations that a number of weapons were brandished during the fight. During this altercation, the relator purportedly fired a gun, injuring Gary Croston.
Although the facts and the relator's actual role during the event were greatly in dispute, the relator and the State decided the best course of action was to negotiate a plea agreement. A binding plea agreement was negotiated pursuant to Rule 11(e)(1)(C) of Following a hearing on March 15, 1995, the respondent entered an order dated March 16, 1995. According to the written plea order, the respondent noted a plea agreement was negotiated with and proposed to the relator, the relator knowingly and willingly entered into the agreement, and the relator understood "that the final decision as to the sentence ... [was] the Court's." The order indicated that during the hearing on the preceding day the respondent "then permitted the parties to execute in open Court the written plea agreement[.]"
[195 W.Va. 190] the Rules of Criminal Procedure. Under the agreement, the relator agreed to plead guilty to the felony charge of wanton endangerment involving a firearm. In return for the relator's plea, the State agreed to dismiss the first count of the indictment charging unlawful assault, also a felony. Additionally, the State agreed it would nolle prosequi the two count indictment charging the relator's brother, Jeffrey Scott Brewer, with aiding and abetting both felonies. The plea agreement also indicated that the maximum sentence the relator would receive would be one year in the county jail and a possible fine. The relator agreed to make restitution for all medically related expenses of the victim. The State also agreed not to oppose a work release program for the relator provided the relator made a good faith effort to "cooperate with law enforcement agencies to be specified at a later date."
A sentencing hearing was held on April 14, 1995. At this hearing, the respondent again followed the specifications of the plea agreement and sentenced the relator to one year in the county jail and a fine of $2,500 plus the costs and expenses of the proceeding. The respondent also ordered the relator would be eligible for work release provided he was able to maintain a job. The relator's income from work release was then supposed to be sent directly to the circuit clerk who would divide the relator's salary and pay half for restitution and return the remainder to the relator for his maintenance.
Following this hearing, the State prepared the written sentencing order. This proposed order mirrored the respondent's oral order during the April 14, 1995, hearing. However, the respondent rejected the proposed order and sent another written order that ultimately modified the prior plea agreement. The second written order kept the earlier terms of the plea agreement, but ordered the relator to pay $5,000 for the pain and suffering of the victim in addition to the $2,500 fine (plus costs) and the restitution for the medical expenses of the victim. Moreover, the order provided that the circuit clerk would apply fifty percent, but not less than $400 of the relator's salary towards restitution for the victim.
A subsequent hearing was held on May 2, 1995, to address issues arising from the second written order. The respondent gave the relator three options: (1) withdraw his guilty plea and proceed to trial upon the original charges; (2) approve the order as amended by the respondent with the additional $5,000 for pain and suffering; or (3) "[t]ake the disputed issued (sic) raised by the ... [relator] to the W. Va. Supreme Court of Appeals." In an order dated May 18, 1995, after describing the events of the May 2, 1995, hearing, the respondent noted that if the relator chose the first option, the trial would be scheduled for as soon as practicable; if the second option was chosen, then relator's counsel should signify acceptance by initialling the order; and if the third option was chosen, then the order modifying the plea agreement would be entered, but the relator's exceptions would be preserved. The relator then filed a petition for a writ of prohibition with this Court and a rule to show cause was issued returnable September 12, 1995.
In this original action, the relator seeks to prohibit the respondent from vacating his initial plea and sentencing order. In support of the issuance of a writ of prohibition, the relator asserts that (1) the inclusion of the $5,000 for pain and suffering violated both the binding plea agreement created under Rule 11(e)(1)(C) of the Rules of Criminal Procedure; and (2) the respondent violated the relator's procedural due process rights
[195 W.Va. 191] by unilaterally imposing the additional $5,000 in damages without providing a hearing and without having the relator and his counsel present at the time the sentencing modification was made.
Our cases have not been explicit as to whether the appropriate standard of review is de novo or the more deferential standard of clear error or abuse of discretion when a criminal defendant claims a breach of a plea agreement. We take this opportunity to clarify the appropriate standard of...
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