State v. Ranski
| Citation | 289 S.E.2d 756,170 W.Va. 82 |
| Decision Date | 30 March 1982 |
| Docket Number | No. 15154,15154 |
| Court | Supreme Court of West Virginia |
| Parties | STATE of West Virginia v. Freda Jo RANSKI. |
Syllabus by the Court
Pursuant to W.Va.Code, 62-12-2(c) [1979], a trial judge must specifically find as a matter of record, that a firearm was used in the commission of the crime before a person convicted of the crime upon a plea of guilty may be found to be ineligible for probation under W.Va.Code, 62-12-2(b) [1979].
McNeer, Highland & McMunn and John Lewis Marks, Jr., Clarksburg, for appellant.
Chauncey H. Browning, Atty. Gen. and Howard E. Krauskopf, Asst. Atty. Gen., Charleston, for appellee.
This case is before this Court on an appeal from a final order of the Circuit Court of Harrison County, entered on December 29, 1980, which denied defendant Freda Jo Ranski's motion to withdraw her guilty plea and sentenced her to a term of one to five years imprisonment at the State Penitentiary for Women at Pence Springs for the crime of the voluntary manslaughter of her former husband, Jake Ranski.
On June 26, 1980, Jake Ranski was shot in the head with a .357 magnum. Freda Jo Ranski confessed to the murder of her former husband with whom she was still living after their divorce. The admissibility of the confession is not challenged on this appeal.
The case came to trial on October 27, 1980. At the close of the State's evidence on October 28, 1980, the defendant moved to withdraw her plea of not guilty to the charge of murder. She sought to enter a plea of guilty to voluntary manslaughter. The State did not oppose the motion. The trial court conducted a lengthy interrogation of the defendant. The portion of that questioning most relevant to the issues presented by this appeal follows:
Q. [By the trial judge]: I will ask you, at the outset, if you know what the statutory penalty is for the crime of voluntary manslaughter?
A. Yes sir.
Q. What is it please?
A. One to five years.
Q. In the penitentiary?
A. Yes.
After the questioning of the defendant the trial judge accepted the plea of guilty to voluntary manslaughter. 1 The case was continued until December 1, 1980, for sentencing.
The defendant filed a written motion to withdraw her guilty plea at the start of the sentencing hearing on December 1, 1980. The motion was based on the defendant's claim that she was not adequately informed of the consequences of her plea. Specifically, the defendant alleged that her attorney had not been aware of the amendment of W.Va.Code, 62-12-13 by 1979 W.Va.Laws c. 87. The written motion stated, in part:
[T]he defendant ... was informed by her attorney that the possible sentence that could be imposed by the Court upon her plea of guilty to voluntary manslaughter, was a term of not less than one (1) year nor more than five (5) years in the penitentiary of this State for women. She was further informed that this meant that she would have to serve a minimum of one (1) year and that at the expiration of said one (1) year she would be eligible for parole in accordance with the statutes of this State. Defendant states that this was a major and primary consideration and inducement in her decision to plead guilty to the crime of voluntary manslaughter. That subsequent to the entry of said plea, defendant's attorney found that the statutes of this State dealing with parole had been changed by the Legislature of this State.... Therefore ... the possible sentence as a result of defendant's plea of guilty to voluntary manslaughter is not the sentence of which she was advised by counsel and the Court prior to the entry of said plea, being not less than one (1) nor more than five (5), but the sentence is not less than three (3) nor more than five (5) years in the penitentiary of this State. Defendant therefore states that she did not enter said plea with a full understanding of the consequences....
Nothing in this written motion refers to W.Va.Code, 62-12-2 [1979], or to the possibility of probation, or to the defendant being advised that probation was possible in her case, or that the defendant's guilty plea was even partially based on the possibility of probation.
The motion to withdraw the guilty plea was also presented and argued orally at the December 1, 1980, sentencing hearing. The emphasis in the defendant's argument is on the possibility of parole after one year. The defendant did not argue or allege that the possibility of probation had entered into her consideration in deciding to enter a plea of guilty to the crime of voluntary manslaughter. On this appeal the defendant does not allege that the possibility of probation was a factor in her decision to plead guilty. Probation was not mentioned until after argument on the motion to withdraw was completed and the motion was denied. At that point the defendant moved the court for a presentence investigation "leading to the possibility of probation." The trial judge said, in response, "Under the probation statute I don't think that can be done." In the final order of December 29, 1980, from which this appeal is taken, the trial judge held that the motion for a presentence investigation was denied "for the reason that the defendant is ineligible for probation."
The defendant assigns three errors on this appeal: (1) the Court erred in holding that the defendant was ineligible for probation under W.Va.Code, 62-12-2 [1979], because there was no finding by the trial judge that the defendant had used a firearm in the commission of the crime; (2) that if such a specific finding by the trial judge is not necessary to bring the firearm provisions into effect, then the trial judge erred in not allowing the withdrawal of the guilty plea; and (3) the court erred in denying the defendant's request for an evidentiary hearing on the motion to withdraw the guilty plea. 2
W.Va.Code, 62-12-2, provided, at the time this case was before the circuit court, as follows:
(a) All persons who have not been previously convicted of a felony within five years from the date of the felony for which they are charged, and who are found guilty of or plead guilty to any felony, the maximum penalty for which is less than life imprisonment, and all persons whether previously convicted or not, who are found guilty of or plead guilty to any misdemeanor, shall be eligible for probation, notwithstanding the provisions of sections eighteen and nineteen, article eleven, chapter sixty-one of this code.
(b) The provisions of subsection (a) of this section to the contrary notwithstanding, any person who commits or attempts to commit a felony with the use, presentment or brandishing of a firearm shall be ineligible for probation. Nothing in this section shall apply to an accessory before the fact or a principal in the second degree who has been convicted as if he were a principal in the first degree if, in the commission of or in the attempted commission of the felony, only the principal in the first degree used, presented or brandished a firearm.
(c) The existence of any fact which would make any person ineligible for probation under subsection (b) of this section because of the commission or attempted commission of a felony with the use, presentment or brandishing of a firearm shall not be applicable unless such fact is (i) found by the court upon a plea of guilty or nolo contendere, or (ii) found by the jury, if the matter be tried before a jury, or (iii) found by the court, if the matter be tried by the court, without a jury.
(d) For the purpose of this section, the term "firearm" shall mean any instrument which will, or is designed to, or may readily be converted to, expel a projectile by the action of an explosive, gunpowder, compressed air or gas, or any other similar means.
The language of W.Va.Code, 62-12-2(c) [1979], is clear and unambiguous. The firearm provisions of that section of the Code come into effect only when the factfinder makes a specific finding that a firearm was used in the commission of the crime.
In State v. Duncan, 168 W.Va. 705, 285 S.E.2d 468 (1981), the defendant was indicted for armed robbery. 3 He entered a plea of guilty to a charge of unarmed robbery and was sentenced to five to eighteen years imprisonment. The trial judge held that the defendant was ineligible for probation because of W.Va.Code, 62-12-2(b) [1979]. The trial judge, however, indicated that but for that subsection of the probation statute, he probably would have granted probation. On appeal the defendant challenged the trial judge's ruling that he was ineligible for probation. This Court noted that the trial judge had specifically concluded and found that "a weapon was, in fact, used during the commission of this robbery." 168 W.Va. 706, 285 S.E.2d at 469. This Court held, in the syllabus of that case: "When a trial judge's findings show that a person indicted for armed robbery, but convicted on a guilty plea of unarmed robbery, used a firearm during the crime's commission, Code, 62-12-2(b) precludes eligibility for probation." The operative fact in that case was the trial judge's specific finding that a firearm had been used in the commission of the crime. 4 Such a finding was never made in the case presently before this Court. 5
We therefore hold, pursuant to W.Va.Code, 62-12-2(c) [1979], a trial judge must specifically find, as a matter of record, that a firearm was used in the commission of the crime before a person convicted of the crime upon a plea of guilty may be found to be ineligible for probation...
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