State v. Hodges

• Decision Date: 29 June 1983
• Docket Number: No. 15622,15622
• Citation: 172 W.Va. 322,305 S.E.2d 278
• Parties: STATE of West Virginia v. Gary Lee HODGES.
• Court: West Virginia Supreme Court

Page 278

305 S.E.2d 278

172 W.Va. 322

STATE of West Virginia v. Gary Lee HODGES.

No. 15622.

Supreme Court of Appeals of West Virginia.

June 29, 1983.

Syllabus by the Court

1. "Specific performance of a plea bargain is an available remedy only when the party seeking it demonstrates that he has relied on the agreement to his detriment and cannot be restored to the position he held before the agreement." Syl. pt. 1, State v. Wayne, 162 W.Va. 41, 245 S.E.2d 838 (1978).

2. "The granting of a continuance is a matter within the sound discretion of the trial court ... and the refusal thereof is not ground for reversal unless it is made to appear that the Court abused its discretion, in that its refusal has worked injury and prejudice to the rights of the party in whose behalf the motion was made." Syl pt. 1, State v. Cunningham, 170 W.Va. 119, 290 S.E.2d 256 (1981). Syl. pt. 1, State v. Jones, 84 W.Va. 85, 99 S.E. 271 (1919) (in part).

3. "Where a challenge to a judge's impartiality is made for substantial reasons which indicate that the circumstances offer a possible temptation as to the average man as a judge not to hold the balance nice, clear and true between the State and the accused, a judge should recuse himself." Syl. pt. 14, Louk v. Haynes, 159 W.Va. 482, 223 S.E.2d 780 (1976) (in part).

4. "A warrantless search of the person and the immediate geographic area under his physical control is authorized as an incident to a valid arrest." Syl. pt. 3, State v. Drake, 170 W.Va. 169, 291 S.E.2d 484 (1982), quoting, syl. pt. 6, State v. Moore, 165 W.Va. 837, 272 S.E.2d 804 (1980).

5. "In a criminal prosecution, the State is required to prove beyond a reasonable doubt every material element of the crime with which the defendant is charged." Syl. pt. 4, State v. Pendry, 159 W.Va. 738, 227 S.E.2d 210 (1976).

6. The absence of a license is an element of the crime of carrying a dangerous or deadly weapon without a license and the burden of proof as to this element must be borne by the State. To the extent it diverges from this opinion, State v. Merico, 77 W.Va. 314, 87 S.E. 370 (1913) is hereby overruled.

Michael E. Froble, Asst. Atty. Gen., Charleston, for appellee.

James M. Cagle, Charleston, for appellant.

McHUGH, Justice:

Appellant, Gary Lee Hodges, appeals from a January 14, 1982 final order of the Circuit Court of Wayne County denying his motion to set aside the verdict and grant a new trial. Hodges was convicted of carrying a dangerous and deadly weapon without a license, in violation of W.Va.Code, 61-7-1 [1975], and sentenced to twelve months imprisonment in the county jail. For reasons discussed herein, we reverse and remand.

On June 8, 1981, Hodges was stopped for speeding and passing illegally by Wayne County Sheriff Billy Joe Wellman. Wellman had heard a rumor in the sheriff's department that Hodges carried a gun, but could not recall from whom he had heard this. After he was stopped by Sheriff Wellman, Hodges got out of his car, walked to the sheriff's car, and signed the tickets which Wellman had written, and then turned away from Wellman to return to his vehicle. Wellman noticed the impression of a pistol in Hodges' rear pocket as he walked away. He stopped Hodges, obtained the pistol, and arrested Hodges for carrying a dangerous weapon without a license.

Between Hodges' arrest and December 15, 1981, the date set for trial in the Circuit Court of Wayne County, discussions were had by Hodges' counsel, the assistant prosecuting attorney assigned to this case, and the trial judge regarding a possible plea bargain. The defendant indicated his willingness to plead guilty in return for assurances that no jail sentence would be requested by the State or imposed by the court. It appears that defense counsel discussed this matter with the assistant prosecutor, who, in turn, discussed it with the judge. The substance of the prosecutor's conversation with the judge is not entirely clear but the assistant prosecutor relied upon it in telling defense counsel that an agreement had been reached which met with the judge's approval. The judge recalled telling the assistant prosecutor that he was not interested in seeing Hodges go to jail. The judge indicated that he intended to levy a substantial fine. Defense counsel was satisfied that an agreement had been reached and that his services would not be necessary on the day the case was called for trial.

Hodges appeared, without counsel, before the court on December 15, 1981. At some point in the proceedings he became aware that the court intended to impose a suspended sentence of one year in the county jail. Hodges requested that the proceedings be continued until the following day to allow counsel to be present, as he felt that the plea bargain agreement had been violated by the court's decision to impose a suspended sentence. The court acceded to this request and on December 16, 1981, defense counsel appeared before the court with Hodges. Various pretrial motions were made at that time, including a motion to recuse the judge and a motion for a continuance, both of which were denied. The case proceeded to trial before a jury on the afternoon of December 16, and concluded the same day.

The State presented a single witness, Sheriff Wellman. The trial court denied Hodges' motion at the close of Wellman's testimony to direct a verdict in his favor due to the State's failure to establish Hodges' lack of a license to carry the pistol. The defendant did not testify and the defense called no witnesses. The jury returned a verdict of guilty.

At the January 11, 1982 hearing on Hodges' post-trial motions the judge and defense counsel discussed the fact that, unknown to defense counsel at the time, the jury panel from which the jury for Hodges' trial was selected had given a Christmas gift to the chief deputy of Sheriff Wellman, who was serving as the court's bailiff. Defense counsel first became aware of the gift after jury selection when the jury was impaneled to try the case. The first objection to the gift was raised at the hearing on the post-trial motions.

Appellant makes six assignments of error. The trial judge's failure to enforce the plea bargain agreement or to grant a continuance are assigned. Hodges also contends that the trial judge's failure to recuse himself was error, as was the judge's failure to fully and timely inform him of the gift given by the jury panel to Wellman's chief deputy. The court's ruling allowing the introduction of the pistol and bullets, allegedly obtained as a result of an illegal search, is also cited as error. Finally, Hodges contends that the State failed to establish, prima facie, that he did not possess a license to carry the pistol removed from him by Sheriff Wellman.

We conclude that the court's failure to grant a continuance in the circumstances presented herein constituted an abuse of discretion. We also conclude that the State, while introducing some evidence regarding the lack of a license, basically relied upon State v. Merico, 77 W.Va. 314, 87 S.E. 370 (1913) which held that the State had no burden to prove the absence of a license. For reasons set forth below the State's reliance on Merico was inappropriate. These two errors require reversal. While the remaining assignments warrant discussion, none would require reversal of Hodges' conviction.

I

We first turn to the plea bargain agreement. The trial court believed that he had at most, indicated his inclination not to jail Hodges, should Hodges choose to plead guilty. It was the court's view that no binding agreement had been struck. Hodges certainly interpreted the court's representation in a different manner. When the court stated that he had no interest in seeing Hodges go to jail, but would levy a substantial fine, Hodges contemplated no suspended jail sentence. It is apparent from Prosecuting Attorney Robert Chafin's testimony that he had not contemplated the imposition of a suspended sentence. All participants concede that there was no mention of the imposition of a suspended sentence before the December 15 date set for trial.

Our first inquiry must be whether the agreement bound the trial judge not to impose a suspended sentence. This Court has written extensively on the standards for the effectiveness of plea bargain agreements. See e.g., State v. Wayne, 162 W.Va. 41, 245 S.E.2d 838 (1978); State ex rel. Gray v. McClure, 161 W.Va. 488, 242 S.E.2d 704 (1978); and, Brooks v. Narick, 161 W.Va. 415, 243 S.E.2d 841 (1978). Our cases have consistently held that in order to bind the State to its bargain a defendant must have acted to his substantial detriment. As we stated in syllabus point 1 of State v. Wayne, "[s]pecific performance of a plea bargain is an available remedy only when the party seeking it demonstrates that he has relied on the agreement to his detriment and cannot be restored to the position he held before the agreement." The only detriment suffered was Hodges' failure to subpoena a witness in reliance on the supposed agreement. Hodges could have very easily been restored to the position he held before the bargain had the trial court but granted his request for continuance. We conclude that Hodges was not entitled to specific performance of any plea bargain which may have been reached.

It is equally clear, however, that, where representations by the court reasonably lead the defendant to believe that no suspended jail sentence shall be imposed and the trial judge indicates for the first time at the trial date that he intends to impose such a sentence, a continuance should be granted. In syllabus point 1 of State v. Cunningham, 170 W.Va. 119, 290 S.E.2d 256 (1981) we spoke of the trial court's discretion in granting continuances, quoting syllabus point 1 of State v. Jones, 84 W.Va. 85, 99 S.E. 271 (1919) (in part):

"The granting of a continuance is a matter within the sound discretion of the trial court ... and the refusal thereof is...