State v. Fleming, No. 14–1141.

• Court: Supreme Court of West Virginia
• Writing for the Court: WORKMAN, Justice
• Citation: 784 S.E.2d 743
• Parties: STATE of West Virginia, Plaintiff Below, Respondent v. Chris Wade FLEMING, Defendant Below, Petitioner.
• Docket Number: No. 14–1141.
• Decision Date: 07 March 2016

784 S.E.2d 743

STATE of West Virginia, Plaintiff Below, Respondent
v.
Chris Wade FLEMING, Defendant Below, Petitioner.

No. 14–1141.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 20, 2016.
Decided March 7, 2016.

Jonathan G. Brill, Esq., Jonathan G. Brill, PLLC, Romney, WV, Lary D. Garrett, Esq., Garrett & Garrett, Attorneys at Law, Moorefield, WV, Co–Counsel for Petitioner.

Patrick Morrissey, Esq., Attorney General, Derek A. Knopp, Esq., Assistant Attorney General, Charleston, WV, Counsel for Respondent.

WORKMAN, Justice:

This is an appeal by Chris Wade Fleming (hereinafter "the petitioner") from a jury conviction of twelve counts of wanton endangerment, one count of attempted murder, and one count of fleeing in reckless indifference to the safety of others. The petitioner appeals the trial court's denial of a new trial. Upon thorough evaluation of the arguments of counsel, the record, and pertinent authority, this Court affirms the decision of the trial court.

I. Factual and Procedural History

On September 3, 2012, the petitioner engaged in an argument with his wife and step-daughter. He departed the family home and drove his Jeep through the yard of Jason Ludwick, a resident of Capon Bridge, West Virginia. Mr. Ludwick observed the petitioner driving through his property and pursued him in his own vehicle. The petitioner stopped along the road and threatened to shoot Mr. Ludwick, and Mr. Ludwick thought he heard a gunshot as he departed. Mr. Ludwick drove approximately one mile and stopped at the home of Brian Slade. At Mr. Ludwick's request, Mr. Slade called 911 and reported the encounter between the petitioner and Mr. Ludwick. As Mr. Ludwick proceeded toward his own home, he passed the petitioner and heard more gunshots.

Unbeknownst to Mr. Ludwick, his wife had left their residence to search for him. According to her subsequent testimony, when Mrs. Ludwick encountered the petitioner parked beside the road in his Jeep, he informed her that Mr. Ludwick was in the river. He then pointed his rifle at her and threatened to shoot her in the face. Mrs. Ludwick went home and called 911, believing her husband might have been shot and placed in the river.

Mr. Slade also left his residence in an attempt to locate the petitioner. He observed the Jeep and followed it to obtain its license number. The petitioner stopped and exited the vehicle with a rifle in his hand. As Mr. Slade turned to drive away, bullets hit his vehicle.

Hampshire County Sheriff's deputies arrived shortly thereafter and pursued the petitioner. When the petitioner turned his vehicle to face the police, he exited his vehicle, approached the officers, and fired his weapon. The petitioner surrendered after one of the deputies fired at him. He was cooperative throughout the ensuing investigation and indicated he could not recall the exact details of the events.

The petitioner was indicted on January 3, 2013, and filed a notice of mental defense on January 16, 2013, citing his post-traumatic stress disorder(hereinafter "PTSD") acquired

784 S.E.2d 749

during his military service in the Iraq war.¹ On March 14, 2013, the trial court ordered a psychological evaluation of the petitioner's competency to stand trial. Gregory Trainor, the court-appointed evaluator and licensed psychologist, submitted an April 29, 2013, report (hereinafter "Trainor report") finding the petitioner competent to stand trial but unable to comprehend the nature or quality of his criminal behavior due to PTSD. The Trainor report found the petitioner's capacity to appreciate the wrongfulness of his behavior was moderately to severely diminished.

During a July 1, 2013, pretrial hearing, the parties advised the trial court of ongoing negotiations toward a plea agreement, whereby the petitioner would plead guilty by reason of insanity. At that time, the parties advised the court that they were continuing to discuss the number of counts to be included in the plea agreement. The State further advised the trial court that it was not likely to rebut the petitioner's temporary insanity defense. At the conclusion of that hearing, the trial court indicated its uncertainty about accepting such a plea and continued the matter in order to conduct further research.

Another hearing was held on July 9, 2013. On appeal, the petitioner asserts that he was prepared to enter his plea at that hearing, pursuant to a written agreement with the State. However, the petitioner did not make a motion for the court to consider a proposed plea agreement. At the outset of the hearing, the trial court ordered the petitioner to undergo a second evaluation for assessments of competency and criminal responsibility. The trial court had arranged for an examination of the petitioner by psychiatrist, Dr. Thomas Adamski.

Dr. Adamski submitted a September 4, 2013, report (hereinafter "Adamski report") finding the petitioner both competent to stand trial and criminally responsible for his conduct. Based on Dr. Adamski's report, the State ultimately withdrew its plea offer. An October 16, 2013, hearing was conducted on the petitioner's motion for a Rule 11plea hearing.² The petitioner argued the trial court had abandoned its impartial role and impermissibly participated in the plea bargaining process. The plea agreement, as originally proposed, was filed with the court at that time. On October 18, 2013, the trial court denied the petitioner's motion for a Rule 11hearing on the plea bargain issue. The trial court articulated the basis for its denial, as follows:

The Court finds that Mr. James [prosecuting attorney] indicated, on October 16, 2013, that the original plea offer tendered to Defendant on June 30, 2013, was based entirely upon the initial Psychological Evaluation findings of Mr. Trainor that Defendant was not criminally responsible. Subsequently, when the results of the second evaluation, a Forensic Psychiatric Evaluation prepared by Dr. Adamski, found that in his opinion Defendant was in fact criminally responsible, the entire posture of the case and the appropriate disposition made the earlier plea offer no longer acceptable to the State.

The trial court further ruled that the State was at liberty to withdraw its plea offer "because Defendant has not yet pled guilty and because the plea offer was not approved by the Court."

The petitioner relied upon an insanity theory of defense during a two-day trial, commencing July 15, 2014. The jury convicted the petitioner of twelve counts of wanton endangerment, one count of attempted murder, and one count of fleeing in reckless indifference to the safety of others. He was sentenced on October 2, 2014. The trial court denied the petitioner's motion for a new trial on October 10, 2014, and this appeal followed.

II. Standard of Review

The petitioner raises multiple assignments of error on appeal. This Court generally evaluates appeals under the following standard of review:

784 S.E.2d 750

In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000). Because this case requires the examination and application of numerous standards of review, this Court will discuss any other appropriate standards in conjunction with analysis of the separate issues below.

III. Discussion

A. Proposed Plea Agreement

The petitioner first contends that the lower court engaged in impermissible participation in the plea bargaining process by ordering, sua sponte, the petitioner to undergo a second evaluation for competency and criminal responsibility. In support of his claim, the petitioner cites Rule 11(e)(1) of the West Virginia Rules of Criminal Procedure, providing that the court "shall not participate" in the plea discussion.³ The petitioner contends that upon his appearance at the July 9, 2013, hearing with a signed plea agreement,⁴ the trial court was obligated to accept, deny, or defer ruling on the plea. Instead, the trial court, sua sponte, ordered the second evaluation, prior to presentation of the proposed plea agreement.

The State contends the petitioner's argument is flawed because the plea agreement was never tendered to the trial court and its terms were consequently not addressed by the court. Moreover, West Virginia Code § 27–6A–2(a)(2014), provides explicit authority for a circuit court to sua sponte order a forensic evaluation at any stage of the proceedings.

Whenever a court of record has reasonable cause to believe that a defendant in which an indictment has been returned, or a warrant or summons issued, may be incompetent to stand trial it shall, sua sponte or upon motion filed by the state or by or on behalf of the defendant, at any stage of the proceedings order a forensic evaluation of the defendant's competency to stand trial to be conducted by one or more qualified forensic psychiatrists, or one or more qualified forensic psychologists. If a court of record

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