State ex rel. Forbes v. Kaufman, 19855

• Decision Date: 25 April 1991
• Docket Number: No. 19855,19855
• Citation: 404 S.E.2d 763,185 W.Va. 72
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. William C. FORBES, Prosecuting Attorney for Kanawha County, Petitioner, v. Honorable Tod J. KAUFMAN, Judge of the Circuit Court of Kanawha County, and Willie "Doc" Williams, Respondents.

Page 763

404 S.E.2d 763

185 W.Va. 72

STATE of West Virginia ex rel. William C. FORBES, Prosecuting Attorney for Kanawha County, Petitioner, v. Honorable Tod J. KAUFMAN, Judge of the Circuit Court of Kanawha County, and Willie "Doc" Williams, Respondents.

No. 19855.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 8, 1991.

Decided April 25, 1991.

Syllabus by the Court

1. Where the state agrees to make a sentencing recommendation and enters into a plea agreement with the defendant pursuant to Rule 11(e)(1)(B) of the West Virginia Rules of Criminal Procedure, the trial court is not bound to impose the sentence recommended by the state if it accepts the plea agreement.

2. Where the state agrees that a specific sentence is a suitable disposition of a criminal case and enters into a plea agreement with the defendant pursuant to Rule 11(e)(1)(C) of the West Virginia Rules of Criminal Procedure, the trial court may either accept or reject the entire agreement, but it may not accept the guilty plea and impose a different sentence.

3. If a plea is taken pursuant to a plea agreement and the state has agreed to a specific sentence in that agreement, yet if it is not clear whether the plea was taken under Rule 11(e)(1)(B) or 11(e)(1)(C) of the West Virginia Rules of Criminal Procedure, the trial judge may sentence the defendant without being bound by the sentencing provision in the plea agreement.

W. Warren Upton, Jackson & Kelly, Andrew A. Raptis, Charleston, for respondents.

Mary Beth Kershner, Assistant Pros. Atty., Charleston, for petitioner.

McHUGH, Justice:

In this original proceeding, the petitioner, William C. Forbes, Prosecuting Attorney of Kanawha County, seeks to prohibit the respondent, the Honorable Tod J. Kaufman, Judge of the Circuit Court of Kanawha County, from imposing a sentence on the defendant, Willie "Doc" Williams, in Felony Action No. 89-F-324(I), which is contrary to the sentence provided for in the plea agreement entered into by the defendant and the petitioner on January 17, 1990. The petitioner contends that, pursuant to Rule 11(e)(3) of the West Virginia Rules of Criminal Procedure, the respondent was required to either reject the plea agreement, or accept it and be bound by all of its provisions, and that the respondent had no authority to accept the guilty plea and reject the sentence provided in that agreement. We do not believe the respondent exceeded his authority by accepting the guilty plea and rejecting the sentence in the plea agreement, and therefore, the writ is denied.

On July 21, 1989, the defendant was videotaped breaking and entering a "Subway Sandwiches" restaurant in Charleston, West Virginia. Approximately one month after the breaking and entering, the defendant was questioned by the Charleston Police Department about a recent burglary in the Charleston area and was found to be in possession of one of the articles taken in the burglary. Following his arrest, the defendant confessed, not only to that burglary, but also to several other burglaries in the same area. The defendant had also been arrested previously for selling crack cocaine to an informant of the Charleston Police Department on April 2, 1990.

The defendant was indicted on nine charges. He subsequently negotiated a plea agreement with the prosecuting attorney which provided that the defendant would plead by way of information to the sale of crack cocaine and to three other felonies. In exchange for his plea, the prosecuting attorney agreed not to prosecute on the other charges. The plea agreement further provided that the defendant would serve a sentence on the cocaine charge which would run concurrently with the three felony charges, with the three felony charges to run consecutively. The defendant agreed to the plea agreement on January 17, 1990.

The defendant appeared before the respondent to enter his plea on January 18, 1990. The respondent reviewed the four guilty pleas and the plea agreement, and questioned the defendant as to whether he understood the legal effect of the pleas and the plea agreement. The respondent advised the defendant that he was not bound by the sentence provided for in the plea agreement, and that the defendant should realize that when he makes his plea, the respondent would make the final determination of the sentence to be imposed. Upon accepting the defendant's guilty pleas, the respondent sentenced him to four concurrent sentences.

Two months later, the petitioner filed a motion to vacate the plea and sentence. While the petitioner's motion to reconsider the sentence imposed was pending before the respondent, the defendant was indicted by the state on those charges the state had agreed in the plea agreement not to prosecute.

A hearing on the motion to vacate the sentence was held on May 29, 1990. After hearing the parties' arguments, the respondent interpreted the plea agreement as a guilty plea with a sentencing recommendation pursuant to W.Va.R.Crim.P. 11(e)(1)(B), and concluded that the state had acquiesced in the court's interpretation. Also during that hearing, counsel on behalf of the defendant requested that the respondent dismiss the indictment against the defendant on the charges which the state had previously agreed to dismiss as part of the plea agreement. By order dated June 6, 1990, the respondent dismissed the charges contained in the indictment. The petitioner now seeks a writ of prohibition to prohibit the respondent from imposing a different sentence than that agreed upon in the plea agreement.

The sole issue we shall address in this appeal is whether the circuit court exceeded its authority in accepting the guilty plea and imposing a different sentence than that agreed upon by the petitioner and the defendant in the plea agreement. The petitioner contends that pursuant to W.Va.R.Crim.P. 11(e)(1)(C), the circuit court may accept or reject the entire plea agreement and sentence, but it may not accept the defendant's guilty plea and impose a different sentence. The defendant contends that, in describing the plea agreement, the assistant prosecuting attorney used words such as "proposal" and "suggest" with regard to the sentencing provision, and that the assistant prosecuting attorney did not object when the respondent characterized the proposal as a binding plea agreement with a sentencing recommendation pursuant to W.Va.R.Crim.P. 11(e)(1)(B).

The standards and procedures governing plea agreements are set forth in Rule 11 of the West Virginia Rules of Criminal Procedure, which provides, in relevant part:

(e) Plea Agreement Procedure.

(1) In General.--The attorney for the state and the attorney for the defendant or the defendant when acting pro se may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty, or nolo contendere to a charged offense or to a lesser or related offense, the attorney for the state will do any of the following:

(A) Move for dismissal of other charges; or

(B) Make a recommendation or agree not to oppose the defendant's request, for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court; or (C) Agree that a specific sentence is the appropriate disposition of the case; or

(D) Agree not to seek additional indictments or information for other known offenses arising out of past transactions.

For purposes of this appeal, we are primarily concerned with the types of plea agreements entered into pursuant to Rules 11(e)(1)(B) and 11(e)(1)(C), commonly referred to in federal cases as "Type B" and "Type C," respectively. ¹ United States v. Jackson, 563 F.2d 1145, 1147 n. 4 (4th Cir.1977); 1 C. Wright, Federal Practice and Procedure § 175.1, at 641 (2d ed. 1982). The distinction between a "Type B" agreement and a "Type C" agreement has been clearly drawn. A "Type B" agreement, under Rule 11(e)(1)(B), is an agreement by the prosecutor to make a sentencing recommendation with the understanding that such recommendation shall not bind the circuit court. State v. Cabell, 176 W.Va. 272, 274, 342 S.E.2d 240, 242 (1986). See also United States v. Burruezo, 704 F.2d 33 (2d Cir.1983); United States v. French, 719 F.2d 387 (11th Cir.1983), cert. denied, 466 U.S. 960, 104 S.Ct. 2174, 80 L.Ed.2d 557 (1984). See also 1 C. Wright, Federal Practice and Procedure § 175.1, at 648-50 (2d ed. 1982); T. Hutchison & D. Yellen, Federal Sentencing Law and Practice 409-10 (1989); J. Bond, Plea Bargaining and Guilty Pleas § 1.7(e) (2d ed. 1983). Under a "Type C" agreement, Rule 11(e)(1)(C), the state and the defendant agree that a specific sentence is appropriate, and if the agreement is accepted by the court, it is bound to impose the agreed sentence. United States v. Jackson, 563 F.2d at 1147 n. 4; United States v. Kemper, 908 F.2d 33, 35-36 (6th Cir.1990); see also 1 C. Wright, Federal Practice and Procedure § 175.1, at 645-46 (2d ed. 1982). ²

The Ninth Circuit has recognized that where the government has agreed that a specific sentence is the appropriate disposition of the case and it enters into a "Type C" agreement with the defendant, the trial court may accept or reject the whole agreement, but it may not accept the guilty plea and impose a sentence greater than that agreed upon. United States v. Herrera, 640 F.2d 958, 960 n. 2 (9th Cir.1981). Furthermore, the Ninth Circuit has also held that RULE 11(E)(3) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE³ prohibits a district court from sentencing a defendant to a sentence less severe than that provided for in a "Type C" agreement which has been accepted by the court. United States v. Semler, 883 F.2d 832 (9th Cir.1989).

In Semler, 883 F.2d at 833-34, the Ninth Circuit traced the legislative history of Fed.R.Crim.P. 11(e)(3) as it applies to "Type C" agreements to determine Congress' intent:

Rule 11(e)(3) prohibits a district court from sentencing a defendant to a sentence...