State v. Myers

• Decision Date: 20 November 1998
• Docket Number: No. 25004.,25004.
• Citation: 513 S.E.2d 676,204 W.Va. 449
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Zenie Junior MYERS, III, Defendant Below, Appellant.

513 S.E.2d 676

204 W.Va. 449

STATE of West Virginia, Plaintiff Below, Appellee, v. Zenie Junior MYERS, III, Defendant Below, Appellant.

No. 25004.

Supreme Court of Appeals of West Virginia.

Submitted September 23, 1998.

Decided November 20, 1998.

David Nibert, R. Michael Shaw, Point Pleasant, West Virginia, Attorneys for Appellant.

Darrell V. McGraw, Jr., Attorney General, Rory L. Perry, II, Assistant Attorney General, Charleston, West Virginia, Attorneys for Appellee.

DAVIS, Chief Justice:

Zenie Junior Myers, III, defendant/appellant (hereinafter "Mr. Myers"), appeals from orders convicting him of and sentencing him for the crime of first degree murder. Mr. Myers entered a plea of guilty to the charge of murder in the first degree. He was sentenced to life in prison without the possibility of parole. Mr. Myers now seeks to withdraw his plea of guilty on three grounds. First, Mr. Myers argues that the State violated terms of the plea agreement. Second, Mr. Myers argues he did not voluntarily enter the guilty plea. Finally, Mr. Myers argues that his sentence should be set aside because the trial court failed to set out in its sentencing order adequate findings to support its denial of his request for a sentence of life in prison with mercy. We agree with Mr. Myers that the State violated terms of the plea agreement. On that basis alone, we reverse and remand this case for disposition as outlined in this opinion.

I. FACTUAL AND PROCEDURAL HISTORY

On August 25, 1995, Mr. Myers broke into the residence of his grandfather, Zenie Elmer Myers. He shot his grandfather in the abdomen with a 12-gauge shotgun, killing him. Proceeding then to the home of his mother and stepfather, Mr. Myers twice shot at his stepfather, but missed both times. Thereafter, he left the residence and hid from the police. Mr. Myers surrendered the following day. A Mason County grand jury returned a five count indictment against Mr. Myers, charging him with murder in the first degree, attempted murder, wanton endangerment, burglary, and petit larceny.

Mr. Myers underwent a battery of psychiatric and psychological evaluations pending his prosecution. Although, Mr. Myers initially argued he was incompetent to stand trial, he later withdrew the objection when his own experts determined that he was competent to stand trial. Based upon the results obtained from the series of psychological evaluations of Mr. Myers, the circuit court ultimately determined he was competent to stand trial. Having been unsuccessful in his attempt to avoid trial, Mr. Myers entered a plea agreement with the State. On September 27, 1996, he agreed to plead guilty to first degree murder in exchange for three specific promises by the State. First, the State promised to dismiss the remaining charges against him. Second, the State agreed to remain silent during the sentencing hearing on the issue of whether Mr. Myers should receive a sentence of life in prison with or without mercy. Finally, the State agreed to remain silent during the sentencing hearing on the issue of Mr. Myers' use of a firearm in the commission of a crime.

The plea agreement was executed and submitted to the trial court on September 27, 1996. The trial court conducted a hearing on the plea agreement and determined, after extensive questioning of Mr. Myers and his counsel, that Mr. Myers voluntarily and knowingly entered into the plea agreement. During the hearing, the trial court accepted Mr. Myers' plea of guilty to the charge of first degree murder. Shortly thereafter, Mr. Myers filed a motion to withdraw his guilty plea. On October 7, 1996, the trial court conducted a hearing on Mr. Myers' motion to withdraw the guilty plea. At the conclusion of the hearing, the trial court denied the motion and ruled that Mr. Myers did not present any legal basis for the withdrawal of the guilty plea.

A sentencing hearing was held on May 3, 1997. During the sentencing hearing, the prosecutor asserted that Mr. Myers should be sentenced to life in prison without the possibility of parole and that the crime was committed with the use of a firearm. Both statements by the prosecutor were inconsistent with the plea agreement.¹ Unfortunately, no objection to the statements made by the prosecutor was made by Mr. Myers' defense counsel. The trial court subsequently sentenced Mr. Myers to life in prison without the possibility of parole. Mr. Myers then filed a motion for reconsideration of his sentence. During the reconsideration hearing, Mr. Myers and his counsel again failed to inform the trial court that the State had violated the terms of the plea agreement during the sentencing hearing. Instead, Mr. Myers argued that he did not voluntarily enter into the plea agreement. Ultimately, the trial court denied Mr. Myers' motion for reconsideration.

II. STANDARD OF REVIEW

The standard of review for issues involving the breach of a plea agreement is set fourth in syllabus point 1 of State ex rel. Brewer v. Starcher, 195 W.Va. 185, 465 S.E.2d 185 (1995). In Brewer, this Court held:

Cases involving plea agreements allegedly breached by either the prosecution or the circuit court present two separate issues for appellate consideration: one factual and the other legal. First, the factual findings that undergird a circuit court's ultimate determination are reviewed only for clear error. These are the factual questions as to what the terms of the agreement were and what was the conduct of the defendant, prosecution, and the circuit court. If disputed, the factual questions are to be resolved initially by the circuit court, and these factual determinations are reviewed under the clearly erroneous standard. Second, in contrast, the circuit court's articulation and application of legal principles is scrutinized under a less deferential standard. It is a legal question whether specific conduct complained about breached the plea agreement. Therefore, whether the disputed conduct constitutes a breach is a question of law that is reviewed de novo.

Clearly, when the facts are not in dispute, the question of whether the State's conduct breached the terms of a plea agreement is a question of law that we review de novo. See State v. Wills, 193 Wis.2d 273, 533 N.W.2d 165 (1995)

.

III. DISCUSSION

A. Violation Of The Plea Agreement Is Reviewable By This Court

Mr. Myers argues that he should be allowed to withdraw his plea of guilty as the State violated the terms of the plea agreement. The State asserts that Mr. Myers never presented the issue to the trial court. This Court has held that "[w]here objections were not shown to have been made in the trial court, and matters concerned were not jurisdictional in character, such objections will not be considered on appeal." Syl. pt. 1, State Road Commission v. Ferguson, 148 W.Va. 742, 137 S.E.2d 206 (1964). The State urges this Court to refuse to consider the violation of the plea agreement on appeal, in view of our general raise or waive rule.

Additionally, the State has cited a number of federal cases indicating that the majority of federal courts do not permit a defendant to assert for the first time on direct appeal a violation of a plea agreement. See United States v. Wyatt, 26 F.3d 863 (8th Cir.1994)

; United States v. D'Iguillont, 979 F.2d 612 (7th Cir.1992); United States v. Navejar, 963 F.2d 732 (5th Cir.1992); United States v. Flores-Payon, 942 F.2d 556 (9th Cir.1991); United States v. Jefferies, 908 F.2d 1520 (11th Cir.1990). A minority of federal courts will permit an alleged violation of a plea agreement to be presented for the first time on direct appeal. See United States v. Hand, 913 F.2d 854 (10th Cir.1990); United States v. Moscahlaidis, 868 F.2d 1357 (3d Cir.1989); United States v. Brody, 808 F.2d 944 (2d Cir.1986). Notwithstanding the federal court's analysis, we are unpersuaded by the federal court's majority view and the State's arguments because of the particularly horrendous conduct in this case.

Due to the egregious nature of the prosecutors violations of the plea agreement in this case, this Court is compelled to resort to the plain error doctrine to examine the violations. The State contends that we should not apply the plain error rule because Mr. Myers has not asserted plain error on appeal. However, this Court's application of the plain error rule in a criminal prosecution is not dependent upon a defendant asking the Court to invoke the rule. "[W]e may, sua sponte, in the interest of justice, notice plain error[.]"² State v. Hutchinson, 176 W.Va. 172, 177, 342 S.E.2d 138, 142 (1986). See State v. Salmons, 203 W.Va. 561, 571 n. 13, 509 S.E.2d 842, 852 n. 13 (1998)

. Nevertheless, this Court will not routinely apply, sua sponte or at the request of a defendant, the plain error rule. "[T]he doctrine is to be used sparingly and only in those circumstances where substantial rights are affected, or the truth-finding process is substantially impaired, or a miscarriage of justice would otherwise result." Syl. pt. 4, in part, State v. England, 180 W.Va. 342, 376 S.E.2d 548 (1988). Additionally, "[t]he plain error rule presupposes that the record is sufficiently developed to discern the error." State v. Spence, 182 W.Va. 472, 481, 388 S.E.2d 498, 507 (1989). The record in the case at hand is sufficiently developed on the issue of the plea agreement violation. Therefore, based upon the foregoing, we will review this case by using the plain error analysis.

B. Plain Error Analysis

Plain error analysis involves a fourpronged test. "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." Syl. pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).³ We will now proceed to independently analyze each element of the plain error test.

1. Determining error. Under Miller, our initial...