State v. Griffy

• Decision Date: 08 June 2012
• Docket Number: No. 11–0533.,11–0533.
• Citation: 727 S.E.2d 847,229 W.Va. 171
• Parties: STATE of West Virginia, Plaintiff Below, Respondent v. David D. GRIFFY, Defendant Below, Petitioner.
• Court: West Virginia Supreme Court

229 W.Va. 171

727 S.E.2d 847

STATE of West Virginia, Plaintiff Below, Respondent

v.David D. GRIFFY, Defendant Below, Petitioner.

No. 11–0533.

Supreme Court of Appeals of

West Virginia.

Submitted May 23, 2012.

Decided June 8, 2012.

Syllabus by the Court

1. “A trial court has two options to comply with the mandatory requirements of Rule 11(e)(2) of the West Virginia Rules of Criminal Procedure. It may initially advise the defendant at the time the guilty plea is taken that as to any recommended sentence made in connection with a plea agreement, if the court does not accept the recommended sentence, the defendant will have no right to withdraw the guilty plea. As a second option, the trial court may conditionally accept the guilty plea pending a presentence report without giving the cautionary warning required by Rule 11(e)(2). However, if it determines at the sentencing hearing not to follow the recommended sentence, it must give the defendant the right to withdraw the guilty plea.” Syllabus Point 2, State v. Cabell, 176 W.Va. 272, 342 S.E.2d 240 (1986).

2. “To trigger application of the ‘plain error’ doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Syllabus Point 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

Charles B. Mullins, II, Esq., Mullins Law Office, Pineville, for Petitioner.

Darrell V. McGraw, Jr., Esq., Attorney General, Thomas W. Rodd, Esq., Assistant Attorney General, Charleston, for Respondent.

PER CURIAM:

This case is before this Court upon appeal of a final order of the Circuit Court of Raleigh County entered on February 23, 2011. In the final order, the circuit court denied a motion for reconsideration of sentence and a motion to withdraw plea filed by David D. Griffy, the petitioner herein and defendant below (hereinafter “Mr. Griffy”). Mr. Griffy was sentenced on July 16, 2010, to two indeterminate one-to-ten year terms of imprisonment pursuant to his guilty plea to two counts of grand larceny. Mr. Griffy argues in this appeal that the circuit court committed reversible error by failing to comply with Rule 11(e)(2) of the West Virginia Rules of Criminal Procedure.

This Court has before it the parties' briefs, the submitted appendices and the argument of counsel. For the reasons set forth below, the final order is reversed, and this case is remanded to the circuit court with instructions.

I. FACTS

On February 21, 2007, Mr. Griffy allegedly broke into the Whitesville, West Virginia, detachment of the West Virginia State Police and stole equipment from a storage room. On August 6, 2007, Mr. Griffy allegedly broke into property owned by Interstate Machinery in Raleigh County, West Virginia, and stole mining equipment. Subsequently, Mr. Griffy was indicted for these alleged offenses. On January 14, 2008, he was charged with one count of breaking and entering for the February 21, 2007, incident. On September 8, 2008, he was charged with one count each of trespassing, grand larceny, destruction of property, transferring stolen property, and conspiracy as a result of the August 6, 2007, incident.

At the time of the alleged offenses, Mr. Griffy was on parole pursuant to a 2003 conviction that occurred in Boone County, West Virginia. Mr. Griffy's parole was revoked in April 2009 because of the Raleigh County charges, and he was incarcerated. Plea discussions between Mr. Griffy and the Raleigh County Prosecutor's office began in January 2010. Letters were then exchanged concerning the proposed plea agreement. In that regard, the prosecution sent a letter to counsel for Mr. Griffy on February 24, 2010, which stated:

This letter is to confirm our recent telephone conversation about a final global resolution to both of Mr. Griffy's cases. The deal is as follows: Your client will plead Guilty to Grand Larceny, as a lessor [sic] included offense under the Breaking & Entering charge in Indictment 08–F–92–H, and your client will plead Guilty to the Grand Larceny charge as listed in Count 2 of the Indictment 08–F–370–B, with the State dismissing all remaining charges, and agreeing not to seek recidivist charges against your client, and standing mute as to sentencing, except to request restitution of all charges.

Counsel for Mr. Griffy then sent a letter to the prosecutor on March 24, 2010, which stated:

I have been authorized on behalf of Mr. Griffy to propose the following PLEA OFFER under the following terms and conditions:

• [Mr. Griffy] will enter a Rule 11(e)(1)(B) plea of guilty to the lessor [sic] included offense of Grand Larceny as contained in Indictment 08–F–92–H and be sentenced to One (1) year, to run concurrent with the time now being served by the [Mr. Griffy] on a parole revocation;

• [Mr. Griffy] will enter a Rule 11(e)(1)(B) plea of guilty to Count 2, Grand Larceny, as contained in Indictment 08–F–370–B and be sentenced to One (1) year, to run concurrent with the time now being served by [Mr. Griffy] on a parole revocation;

• All remaining counts will be dismissed with prejudice;

• Both one (1) year sentences mentioned above will run consecutively;

• The State will remain silent as to sentencing and in exchange [Mr. Griffy] will not ask for any alternate sentence or early release;

• Costs will be assessed pursuant to law.

A plea hearing was held on April 23, 2010.

At the plea hearing, the prosecution and counsel for Mr. Griffy described the plea agreement to the circuit court as follows:

[MR. MULLINS]: And what we offered, Your Honor, was two counts of grand larceny that, as [the prosecutor] has said, carry a one to ten [year sentence] or a flat one [year sentence]. We wanted to argue to the Court for the flat ones to run consecutively, which would be a two-year flat sentence, and that sentence to run concurrent with this parole revocation which he told you about earlier.

He's been incarcerated since April, we believe on this charge, and is entitled to credit for time served, and then he still owes the State approximately another year, maybe 13 months, maybe a little longer, on his parole revocation.

So that's the way we understand our offer to the State. We understand the State's position that they're just going to—that you either take it or reject it.

THE COURT: Well, take it or reject it, my first question for you is whether there's any understanding as to whether the Court should go forward without a presentence investigation. I usually do require one, unless they're effectively waived.

MR. MULLINS: Well, Your Honor, I believe because of the fact that he's going to jail no matter what happens ... we want to go forward and go ahead and have the sentencing and have this matter concluded, if the Court's willing to do that.

THE COURT: Mr. Truman, what does the State say to that proposition?

[THE STATE]: Well, that is not the State's understanding. The State's understanding is that [Mr. Griffy] could argue for alternative sentencing but that he was entering his plea with the risk that the [c]ourt could impose one to ten concurrent, could impose one to ten consecutive, could impose one year on each concurrently, run all that concurrent to his current charges or consecutive to his current charges.

The circuit court then responded by saying, “Let me let that gel awhile while you—and ask you now to recite the factual basis for these charges.” Thereafter, without any further discussion regarding the terms of the plea agreement and whether it was a binding or non-binding agreement, the circuit court accepted Mr. Griffy's plea of guilty to two counts of grand larceny. Subsequently, an order dated April 27, 2010, memorializing the court's acceptance of Mr. Griffy's guilty plea, was entered which indicated that Mr. Griffy's plea was made pursuant to an agreement in accord with West Virginia Rule of Criminal Procedure 11(e)(1)(B).¹

Mr. Griffy's sentencing hearing was held on July 16, 2010. Mr. Griffy, by counsel, asked that the court sentence him to two determinate one-year sentences, as opposed to two indeterminate one-to-ten year sentences, because of the effect on his parole eligibility. Mr. Griffy's counsel indicated that it was his understanding that Mr. Griffy would be able to withdraw his guilty plea if the court did not give him two determinate one-year sentences. A discussion then ensued with regard to whether the plea was entered pursuant to Rule 11(e)(1)(B) or Rule 11(e)(1)(C) ² of the West Virginia Rules of Criminal Procedure. Ultimately, the court concluded the hearing by sentencing Mr. Griffy to two indeterminate one-to-ten year sentences for two counts of grand larceny. The court ordered that the sentences run consecutively with each other, but concurrently with the sentence Mr. Griffy was serving for his Boone County conviction as a result of his parole revocation.

On November 8, 2010, Mr. Griffy filed a Motion for Reconsideration of Sentence pursuant to Rule 35 of the West Virginia Rules of Criminal Procedure.³ A hearing was held on the motion on February 14, 2011, although Mr. Griffy did not attend.⁴ During the hearing, Mr. Griffy's counsel stated that he had advised his client that if the court did not sentence him to two determinate one-year sentences, then he would be allowed to withdraw his guilty plea. Mr. Griffy's counsel asked the court to allow Mr. Griffy to withdraw his guilty plea and proceed to trial. On February 23, 2011, the circuit court issued its final order denying Mr. Griffy's Rule 35 motion and denying his request to withdraw his plea. This appeal followed.

II. STANDARD OF REVIEW

Mr. Griffy asserts in this appeal that the circuit court committed reversible error by failing to comply with a specific rule of criminal procedure. This Court has held that “[w]here the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo...