State v. Pomponio

• Decision Date: 23 April 2014
• Docket Number: No. 13–1036.,13–1036.
• Citation: 233 W.Va. 212,757 S.E.2d 636
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia Ex Rel. Bryan D. THOMPSON, Petitioner v. The Honorable Joseph C. POMPONIO, Judge of the Circuit Court of Pocahontas County, and Eugene M. Simmons, Prosecuting Attorney For Pocahontas County, West Virginia, Respondents.

233 W.Va. 212

757 S.E.2d 636

STATE of West Virginia Ex Rel. Bryan D. THOMPSON, Petitioner

v.The Honorable Joseph C. POMPONIO, Judge of the Circuit Court of Pocahontas County, and Eugene M. Simmons, Prosecuting Attorney For Pocahontas County, West Virginia, Respondents.

No. 13–1036.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 12, 2014.

Decided April 23, 2014.

Syllabus by the Court

1. “Where prohibition is sought to restrain a trial court from the abuse of its legitimate powers, rather than to challenge its jurisdiction, [this] appellate court will review each case on its own particular facts to determine whether a remedy by appeal is both available and adequate, and only if the appellate court determines that the abuse of power is so flagrant and violative of petitioner's rights as to make a remedy by appeal inadequate, will a writ of prohibition issue.” Syl. Pt. 2, Woodall v. Laurita, 156 W.Va. 707, 195 S.E.2d 717 (1973).

2. “ ‘In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.’ Syllabus Point 4, State ex. rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).” Syl. Pt. 2, State ex. rel. Weirton Med. Ctr. v. Mazzone, 214 W.Va. 146, 587 S.E.2d 122 (2002).

3. Due to the significant constitutional rights that a criminal defendant waives in connection with the entry of a guilty plea, the burden of insuring both precision and clarity in a plea agreement is imposed on the State. Consequently, the existence of ambiguity in a court-approved plea agreement will be construed against the State and in favor of the defendant.

4. “ ‘A prosecuting attorney or his successor is bound to the terms of a plea agreement once the defendant enters a plea of guilty or otherwise acts to his substantial detriment in reliance thereon.’ Syllabus, State ex rel. Gray v. McClure, 161 W.Va. 488, 242 S.E.2d 704 (1978).” Syl. Pt. 2, State v. Palmer, 206 W.Va. 306, 524 S.E.2d 661 (1999).

5. “When a defendant enters into a valid plea agreement with the State that is accepted by the trial court, an enforceable ‘right’ inures to both the State and the defendant not to have the terms of the plea agreement breached by either party.” Syl. Pt. 4, State v. Myers, 204 W.Va. 449, 513 S.E.2d 676 (1998).

J. Steven Hunter, Esq., Steve Hunter Associates, L.C., Lewisburg, WV, for Petitioner Bryan D. Thompson.

Robert P. Martin, Esq., Assistant Prosecuting Attorney, Marlinton, WV, for Respondent Eugene M. Simmons.

LOUGHRY, Justice:

The petitioner, Bryan D. Thompson, invokes this Court's original jurisdiction ¹ by seeking a writ of prohibition to prevent his prosecution on charges of breaking and entering and grand larceny. The petitioner contends that those charges were previously dismissed pursuant to a court-approved plea agreement. For the reasons set forth below, we grant the requested writ.

I. Factual and Procedural Background

In October of 2007, the petitioner was indicted by a Pocahontas County grand jury in a case numbered 07–F–14 (hereinafter “Case No. 07–F–14”). Count I of the indictment charged him with conspiracy to commit a felony in violation of West Virginia Code § 61–10–31 (2010), and Count III charged him with delivery of a controlled substance in violation of West Virginia Code § 60A–4–401 (2010), both felony offenses.² The State represents that after the petitioner was indicted, he was “at large” for a period of years until he was located in Florida, arrested, and returned to the State of West Virginia.

Following the petitioner's return to West Virginia, he was charged in a magistrate court criminal complaint with breaking and entering in violation of West Virginia Code § 61–3–12 (2010) in a case numbered 11–F–12 (hereinafter “Case No. 11–F–12”) and grand larceny in violation of West Virginia Code § 61–3–13(a) (2010) in a case numbered 11–F–13 (hereinafter “Case No. 11–F–13”). These charges, which arose out of an incident involving Sharp's Store located in Pocahontas County, were bound over to the grand jury following the petitioner's waiver of his right to have a preliminary hearing. ³

More than a year later, the petitioner entered into a plea agreement with the State through then Pocahontas County Prosecuting Attorney, Donna Price (“Ms. Price”). The plea agreement provided that the petitioner would plead guilty to conspiracy to commit a felony, as charged in Count I of Case No. 07–F–14, and the State would dismiss “the pending charge of Breaking and Entering against the defendant[ ] & Count 3 of the indictment. (Delivery) [.]” ⁴ The plea agreement further provided that the State would not oppose the petitioner's request for credit for time served or a future motion for parole.

On July 26, 2012, a plea hearing was held before the circuit court during which Ms. Price moved to dismiss “Count 3 ... of 07–F–14, and the outstanding pending matter of the breaking and entering. Case numbers have not been assigned....” ⁵ (emphasis added.). The circuit court accepted the petitioner's guilty plea to Count I of Case No. 07–F–14 and then stated it was dismissing “the pending breaking and entering charge against the defendant in Count 3 of the indictment from the active docket.” ⁶ The petitioner agreed to waive the pre-sentence report and requested the circuit court to proceed with sentencing. The circuit court accepted the waiver, sentenced the petitioner to one to five years in prison for the conspiracy to commit a felony, and suspended the sentence. That same day, the circuit court issued an “Amended Order Discharging Defendant From Further Jail and Granting Him Immediate Release” (“Amended Order”). The Amended Order states that “[t]he pending matters in Pocahontas County, to wit: 11–F–12 [breaking and entering] and 11–F–13 [grand larceny] ha[d] been dismissed upon the States [ sic ] Motion [;]” ⁷ it further provided for the petitioner's immediate discharge from custody.⁸

In January of 2013, the respondent, Eugene Simmons (hereinafter “Mr. Simmons”), assumed the office of prosecuting attorney for Pocahontas County. Based on his concerns regarding the work of Ms. Price, his predecessor in office, Mr. Simmons undertook a review of the cases prosecuted by Ms. Price during her tenure. In conducting that review, Mr. Simmons observed that the petitioner's plea agreement did not identify the breaking and entering charge by case number, did not mention the grand larceny charge, and did not specify whether the dismissal of charges was with prejudice. On April 18, 2013, Mr. Simmons presented the charges arising out of the incident involving Sharp's Store to a grand jury; an indictment was returned against the petitioner for entry of a building in violation of West Virginia Code § 61–3–12 and grand larceny in violationof West Virginia Code § 61–3–13(a) in a case numbered 13–F–06 (hereinafter “Case No. 13–F–06”).

The petitioner states that on May 1, 2013, he filed a motion to quash ⁹ the indictment in Case No. 13–F–06 on the grounds that the underlying charges were dismissed as part of the plea agreement that had been accepted and approved by the circuit court on July 26, 2012. The State opposed the motion on the basis that the plea agreement lacked specificity regarding the breaking and entering charge ¹⁰ and was silent on the issue of whether the dismissal of the charges was with prejudice. On June 19, 2013, the circuit court denied the motion to quash during its hearing on the motion.¹¹

On or about July 15, 2013, the petitioner filed a renewed motion to quash and a motion for specific performance of the plea agreement. Arguing that he had upheld his end of the plea agreement and that the State was similarly bound to do the same, the petitioner maintained that he could not be indicted on charges that had been dismissed by the circuit court pursuant to that agreement. In response, the State reasserted the lack of specificity in the plea agreement regarding the charges being dismissed, as well as the absence of language to indicate that the dismissal of charges was with prejudice. The circuit court denied the petitioner's motions, finding no mention of the term “with prejudice” in the plea agreement. Thereafter, the petitioner filed his petition for a writ of prohibition with this Court seeking to prevent his prosecution in Case No. 13–F–06 and to procure his immediate discharge from custody.

II. Standard for Issuance of Writ of Prohibition

The petitioner argues that the circuit court abused its legitimate powers by denying his motion to quash the indictment and for specific performance of the plea agreement. Because the petitioner seeks to prohibit the circuit court from abusing its legitimate powers, the following standard applies:

Where prohibition is sought to restrain a trial court from the abuse of its legitimate powers, rather than to challenge its jurisdiction, the appellate court will review each case on its own particular facts to determine whether a remedy by appeal is both...