State v. Harlow, 17078

• Decision Date: 03 July 1986
• Docket Number: No. 17078,17078
• Citation: 176 W.Va. 559,346 S.E.2d 350
• Parties: STATE of West Virginia v. Jerry HARLOW.
• Court: West Virginia Supreme Court

Page 350

346 S.E.2d 350

176 W.Va. 559

STATE of West Virginia v. Jerry HARLOW.

No. 17078.

Supreme Court of Appeals of West Virginia.

July 3, 1986.

Syllabus by the Court

1. Rule 32(d) of the West Virginia Rules of Criminal Procedure as it relates to the right to withdraw a guilty or nolo contendere plea prior to sentence permits the withdrawal of a plea for "any fair and just reason."

2. "If the State will suffer substantial prejudice if the guilty plea is withdrawn prior to the time the sentence is imposed, this is a limiting factor which the court should consider in determining whether to grant the motion to withdraw the guilty plea." Syllabus Point 3, State v Olish, 164 W.Va. 712, 266 S.E.2d 134 (1980).

Michael C. Farber, Webster Springs, for appellant.

Mary Rich Maloy, Asst. Atty. Gen., Charleston, for appellee.

MILLER, Chief Justice:

In this original habeas corpus the relator alleges his guilty plea should be set aside. He claims that the prosecutor violated the terms of the plea agreement and this provided sufficient cause to permit the defendant to withdraw his pleas under Rule 32(d) of the West Virginia Rules of Criminal Procedure since the motion to withdraw was made prior to sentencing.

The relator's plea agreement was that he would plead guilty to one count of attempted delivery of a controlled substance, a misdemeanor, and would plead nolo contendere to two counts of petit larceny by information. The sentences on all three charges would run concurrently. The State would make a nonbinding recommendation for probation and move to dismiss one count of delivery of a controlled substance.

On November 15, 1984, the relator entered his pleas in open court and the prosecutor made a recommendation for probation. The circuit court accepted the pleas and, thereafter, the relator's case was referred to a probation officer for a presentence investigation. At the dispositional hearing held on March 18, 1985, the relator's counsel moved to continue the hearing after he had read the presentence report. When this was denied, he then moved to withdraw his client's pleas, citing the prosecutor's failure to abide by the plea agreement. He referred to certain statements in the probation report made by the prosecutor which were contrary to the prosecutor's recommendation of probation. These remarks referred to the relator's lack of cooperation and his refusal to follow orders in making drug purchases. ¹

The circuit court denied counsel's motion to withdraw the pleas, discussed the presentence report, and then sentenced the relator to one year in jail on each charge, the sentences to be concurrent, and a $500 fine. A stay of execution of sentence was granted, and the relator was permitted to remain on bond.

Between the date of the entry of the pleas on November 15, 1984, and the date of the dispositional hearing on March 18, 1985, Rule 32(d) was amended. We do not believe this amendment affected the substantive rights of the relator. Prior to its amendment on February 1, 1985, Rule 32(d) provided that "a motion to withdraw a plea of guilty or nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended." ²

The lack of any express standard in Rule 32(d) as to what would constitute a valid reason to withdraw a plea caused most courts to conclude that if the defendant could show any fair and just reason for the withdrawal of the plea, he should be permitted to do so. Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927); United States v. Morgan, 567 F.2d 479 (D.C.Cir.1977); United States v. Young, 424 F.2d 1276 (3d Cir.1970); United States v. Pressley, 602 F.2d 709 (5th Cir.1979); United States v. Hancock, 607 F.2d 337 (10th Cir.1979); People v. Martinez, 188 Colo. 169, 533 P.2d 926 (1975); State v. Jackson, 96 Idaho 584, 532 P.2d 926 (1975); People v. Hollman, 12 Mich.App. 231, 162 N.W.2d 817 (1968); Commonwealth v. Hayes, 462 Pa. 291, 341 A.2d 85 (1975); In re Newton, 125 Vt. 453, 218 A.2d 394 (1966); Dudrey v. State, 74 Wis.2d 480, 247 N.W.2d 105 (1976).

Before the adoption of our Rules of Criminal Procedure on October 1, 1981, we utilized the same standard with regard to a defendant's right to withdraw his guilty plea before sentence as reflected in Syllabus Point 1 of State v. Olish, 164 W.Va. 712, 266 S.E.2d 134 (1980): "In a case where the defendant seeks to withdraw his guilty plea before sentence is imposed, he is generally accorded the right if he can show any fair and just reason."

The only change that the 1985 amendment made to this portion of Rule 32(d) as it relates to the right to withdraw a guilty or nolo contendere plea prior to sentence is to permit the withdrawal of a plea for "any fair and just reason." ³ This amendment expressly confirms the case law interpretation of our prior Rule 32(d) which had imposed any fair and just reason as the standard for withdrawal of a plea before sentence. Thus, for the purposes of this case, it is immaterial which rule is used, as the applicable standard is the same.

There is some analogy between this case and Olish in that the prosecutor in Olish had agreed to remain neutral with regard to a recommendation of mercy on a guilty plea to first degree murder. After the guilty plea was entered and the presentence report prepared, the defendant discovered that the prosecutor had indicated that the defendant should be sentenced without mercy. Before sentence was imposed, the defendant moved to withdraw his guilty plea, which motion was denied.

We held there was sufficient good cause to support the withdrawal of the guilty plea and outlined our reasons as follows:

"In the present case, the prosecutor's failure to maintain his neutral position as reflected by the probation officer's presentence report was a sufficiently fair reason to enable the defendant to withdraw his guilty plea prior to sentencing. The fact that the prosecutor informed the court that he was neutral in regard to the mercy recommendation does not ameliorate his statements contained in the presentence report." 164 W.Va. at 716, 266 S.E.2d at 136. ⁴

In this case, the prosecutor's statement to the probation officer of the relator's lack of cooperation, and consequently his failure to remain at least neutral, was a sufficiently fair reason to enable the relator to withdraw his pleas prior to sentencing. The fact that the prosecutor recommended probation to the circuit court does not lessen the impact of the prosecutor's subsequent statements contained in the presentence report. As we said in Olish, "the inquiry is not the...