State ex rel. Clancy v. Coiner

• Decision Date: 16 March 1971
• Docket Number: 12916,Nos. 12915,s. 12915
• Citation: 154 W.Va. 857,179 S.E.2d 726
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Robert CLANCY v. Ira M. COINER, Warden, West Virginia Penitentiary. STATE ex rel. Lowell David STERN v. Ira M. COINER, Warden, West Virginia Penitentiary.

Page 726

179 S.E.2d 726

154 W.Va. 857

STATE ex rel. Robert CLANCY v. Ira M. COINER, Warden, West Virginia Penitentiary.

STATE ex rel. Lowell David STERN v. Ira M. COINER, Warden, West Virginia Penitentiary.

Nos. 12915, 12916.

Supreme Court of Appeals of West Virginia.

Submitted Jan 13, 1971.

Decided March 16, 1971.

Syllabus by the Court

1. When it is apparent from the totality of circumstances that the entry of a guilty plea by a defendant was induced by a belief that certain promises had been made by the prosecuting attorney, which promises inure to the benefit of the defendant and the state, when, in fact, such promises were not made or were not fulfilled, such plea is involuntary and void.

2. While it is within the discretion of the court to grant or deny a motion to withdraw a guilty plea, if the record reveals that such plea was involuntarily entered or casts serious doubt as to the voluntariness thereof, the court should permit the withdrawal of such plea and its refusal to do so constitutes an abuse of discretion.

3. The burden of proving that a plea was involuntarily made rests upon the pleader.

4. The fact that a defendant, in open court, at the time of the entry of a plea, stated that it was not coerced or unduly influenced by promises, although evidential on the issue, does not foreclose inquiry as to its voluntariness.

Preiser, Greene, Hunt & Wilson, Charleston, W. Va., Stanley E. Preiser, Leo Catsonis, Charleston, for relators.

Michael Tomasky, Morgantown, for Robert Clancy.

Chauncey H. Browning, Jr., Atty. Gen., Willard A. Sullivan, Asst. Atty. Gen., Charleston, for respondent.

CAPLAN, President:

Invoking the original jurisdiction of this Court, the petitioners, Robert Clancy and Lowell David Stern, filed herein separate petitions in habeas corpus, whereby they seek to have this Court declare void, in the circumstances hereinafter described, guilty pleas which each of them entered in the Circuit Court of Monongalia County. Inasmuch as these cases involve an identical issue they were consolidated for argument and will be considered together in this opinion.

Each of the petitioners was indicted by the grand jury of the Circuit Court of Monongalia County for the crime of possession and sale of 'a narcotic drug known as Cannabis, and more commonly known as Marijuana.' Each of the petitioners, on October 13, 1969, entered a plea of not guilty to the charges set out in his respective indictment. Subsequently, the petitioners, in separate proceedings and in circumstances of which they here complain, changed their pleas from not guilty to guilty and were sentenced to confinement in the penitentiary for a term of from two to five years.

Petitioner Clancy alleges that on November 3 and 4, 1969, he and his parents were present in the courtroom of the Circuit Court of Monongalia County throughout the trial of one Robert Harr who had also been indicted for the possession and sale of marijuana. When the jury returned a verdict of guilty, the petitioner and his parents, being upset by said verdict, met with counsel to determine the course to take in the petitioner's behalf. After a short discussion, counsel left the conference room but returned in approximately fifteen or twenty minutes. They then informed the petitioner and his parents they they had conferred with Joseph A. Laurita, Jr., the prosecuting attorney, and they appeared to be pleased with the results of that conference.

Counsel for the petitioner related that the prosecuting attorney agreed, if this petitioner would enter a guilty plea to the charge of possession of marijuana, to dismiss the count charging him with the sale thereof. According to counsel, the prosecuting attorney also promised that he would recommend to the judge and to the probation officer that petitioner Clancy be granted probation; also that he would not resist probation. Counsel, having observed the rapport between the trial judge and the prosecuting attorney during the former trial, fully believed that their client, by pleading guilty to the charge of possession of marijuana, would escape confinement in the penitentiary by being placed on probation.

Consequently, on November 5, 1969, petitioner Clancy appeared in court and changed his plea, entering a plea of guilty to the charge of possession of marijuana. The charge of sale contained in the second count of the indictment was dismissed. Motion that petitioner be placed on probation was made and the court referred the matter to the probation officer for investigation. This motion was not resisted by the prosecuting attorney.

On December 10, 1969, the date set for sentencing, petitioner Clancy again appeared before the court at which time he was sentenced to imprisonment in the penitentiary for a term of two to five years and was fined $500.00. The petitioner then moved for a stay of execution of the sentence for one week to enable him to take a final examination in a course he was taking as a student at West Virginia University The stay of execution was denied. Petitioner Clancy, with his counsel, again appeared before the trial court on December 17, 1969 and asked the court to reconsider its refusal of probation. This request, as alleged by this petitioner, was vigorously resisted by the prosecuting attorney. The court denied the request and the petitioner was shortly thereafter transported to the state penitentiary.

On December 22, 1969, this Court granted the petitioner a writ of habeas corpus and ordered him to be released on bail pending the final disposition of that proceeding. The writ was returnable January 27, 1970. However, it was determined that evidence would have to be taken and this matter was ultimately continued until January 13, 1971, on which date it was argued and submitted for decision.

It is the position of petitioner Clancy that the prosecuting attorney misled him and his counsel in that he failed to recommend to the judge that he be placed on probation as he had promised and assured plaintiff's counsel he would do; that his act of changing his plea from not guilty to guilty of possession of marijuana was based solely on these promises and would not have been entered had such promises not been made; that by reason thereof the guilty plea constituted an involuntary plea and is null and void as a violation of petitioner's constitutional rights.

The respondent, of course, asserts that the plea of guilty was voluntary and is valid. He takes the position that the transcript in the trial court affirmatively shows that the petitioner's plea of guilty was, in fact, voluntary. He points out that in reply to the court's interrogation he stated that his plea was being entered voluntarily and not as a result of any threat, promise or inducement made to him by any state or county official. Basically, the respondent says, the petitioner has not borne the burden of proof which he must do to show that his plea was involuntary.

In view of these assertions by each of the parties it is necessary to consider the evidence before this Court. Offered in support of this petitioner's allegations are the joint affidavit of Clancy and his parents, the joint affidavit of his counsel, Stanley E. Preiser and Leo Catsonis, and the deposition of the Honorable Marvin R. Kiger, Judge of the Circuit Court of Monongalia County. The deposition of Mike Magro, Jr. was also made a part of the record. The respondent relies on the transcript of the proceedings before the trial court and the affidavits of Joseph A. Laurita, Jr., the prosecuting attorney, and Mike Magro, Jr. all of which are included in the record as exhibits.

The joint affidavit made by petitioner Clancy and his parents, Theodore F. Clancy and Viola E. Clancy, fully supports the allegation that the change of plea by Clancy from not guilty to guilty was induced solely by their belief that the prosecuting attorney would recommend to the judge and probation officer that said petitioner be placed on probation. They do not aver therein that the prosecuting attorney made any promise to them but relate that the promise was conveyed to them through counsel after they, counsel, had conferred with the prosecuting attorney, said promise being that the latter would recommend probation. They state in their affidavit that 'Counsel did advise affiants that there could be no absolute guarantee (or probation) but that based upon their conference with Mr. Laurita and the promises made to them by Mr. Laurita that they were of the opinion that this would be best for Robert.' They further deposed that 'Based upon our personal observations of the conduct of the Harr trial and the obvious relationship between the Judge and Mr. Laurita and upon our conversation with our attorneys concerning their discussion with Mr. Laurita, affiants agreed that Robert should change his plea from not guilty to guilty to possession of marijuana.' Finally, they said 'Based upon our understanding with counsel, on the following morning, November 5, 1969, affiants returned to court and Robert changed his plea from not guilty to guilty of possession of marijuana.'

In their joint affidavit Mr. Preiser and Mr. Catsonis aver that they met with the prosecuting attorney of Monongalia County who advised them that he was 'rather exhausted as a result of the Harr trial' and that to obviate the necessity of another trial he would agree, if Clancy would enter a plea of guilty to the possession count of the indictment, to dismiss the count charging sale of marijuana. Furthermore, say counsel, Mr. Laurita promised that he would personally recommend to the Judge of the Circuit Court and to the probation officer that Robert J. Clancy be granted probation; and that he would not resist probation.

The joint affidavit of counsel includes the following assertions:

'Affiants then transmitted this agreement to the petitioner and his parents and based thereon counsel recommended to petitioner and his parents that...