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State ex rel. State v. Sims

Supreme Court of West Virginia

May 3, 2019

State ex rel. State of West Virginia, Plaintiff Below, Petitioner
v.
The Hon. David J. Sims, Judge of the First Judicial Circuit, sitting by special assignment, and John Michael Howell, Defendant Below, Respondents

          Wetzel County, 11-F-15

          MEMORANDUM DECISION

         In 2016, John Michael Howell[1] pled guilty to kidnapping with a potential sentence of life imprisonment with the possibility of parole in fifteen years. Mr. Howell challenged the validity of the plea agreement on appeal because the applicable statute mandated eligibility for parole in ten years. We agreed and vacated Mr. Howell's plea agreement and conviction and ordered that the parties be returned to their respective positions prior to the plea bargain. A few days later, the State offered Mr. Howell's lawyer the original plea agreement modified for eligibility for parole in ten years. Two days later-two weeks prior to the offer being communicated to Mr. Howell-the State revoked its offer. At the sentencing hearing, the circuit court determined that the State was not permitted to revoke its offer and ordered specific performance of the new plea agreement. The State[2] now urges us to grant a Writ of Prohibition as to that ruling.

         This Court has considered the parties' briefs, the appendix submitted, and the parties' oral arguments. Upon consideration of the standard of review, we find that the circuit court's dispositional order is clearly erroneous as a matter of law. Accordingly, we prohibit enforcement of the circuit court's dispositional order and remand this case with instruction to return the parties to their post-indictment, pre-plea agreement positions. Insofar as this case does not present a new or significant issue of law, and for the reasons set forth herein, we find that this case satisfies the "limited circumstances" requirements of Rule 21(d) of the West Virginia Rules of Appellate Procedure and is proper for disposition as a memorandum decision.

         I. Facts and Procedural History

         In January of 2011, Mr. Howell was indicted on four criminal counts: kidnapping, attempted sexual assault in the second degree, sexual assault in the first degree, and malicious assault. During his trial, the parties informed the circuit court that Mr. Howell agreed to plead guilty to the kidnapping charge, which carries a possible life sentence. The written plea agreement expressly provided that he would be eligible for parole after serving fifteen years in prison:

It is understood herein that for the Felony offense of "Kidnapping" the defendant will be sentenced to life with mercy. The defendant will be eligible for parole after serving a minimum of fifteen (15) years with credit for time served. The defendant understands that he may never be paroled, that matter will be left up to the Parole Board.[3]

         In exchange for this guilty plea, the State agreed to dismiss the remaining counts of the indictment. During the plea and sentencing hearing, there were repeated references to Mr. Howell serving fifteen years of incarceration before becoming eligible for parole consideration. Following a plea colloquy, the circuit court determined that Mr. Howell's guilty plea to the crime of kidnapping was knowing, intelligent, and voluntary. The court sentenced Mr. Howell to life in prison with a recommendation of mercy, once again specifying that Mr. Howell would be "eligible for parole after serving a minimum of 15 years with credit for time served[.]"

         Mr. Howell's lawyer later objected to the fifteen-year minimum for parole. In a letter to the circuit court, he argued that the fifteen-year parole eligibility period was contrary to law and that all parties were unaware of this at the time of the plea agreement. Specifically, the kidnapping statute provides:

(b) The following exceptions shall apply to the penalty. . . .
(2) If the person pleads guilty, the court may, in its discretion, provide that the person is eligible for parole in accordance with the provisions of article twelve, chapter sixty-two of this code and, if the court so provides, the person is eligible for parole in accordance with the provisions of said article in the same manner and with like effect as if the person had been found guilty by the verdict of a jury and the jury had recommended mercy[.][4]

         The referenced parole statute addresses eligibility for parole:

An inmate sentenced for life may not be paroled until he or she has served ten years, and an inmate sentenced for life who has been previously twice convicted of a felony may not be paroled until he or she has served fifteen years: Provided, That an inmate convicted of first degree murder for an offense committed on or after June 10, 1994, is not eligible for parole until he or she has served fifteen years.[5]

         It is undisputed that Mr. Howell has no prior felony conviction. So, under these statutes, he would be eligible for parole consideration in ten years, not fifteen as agreed upon in his plea agreement.

         The circuit court held a hearing on May 6, 2016, to consider this issue and specifically addressed the mistake about the applicable parole eligibility period:

I will say this: At the time the plea was entered, I had in my mind that the fifteen-year eligibility date was proper. Basically, what I had in mind, really, was the first degree murder cases. . . . But what I had in my mind-and I'm giving you the mental processes-is that with a recommendation of mercy, that means a person would be eligible for parole in fifteen years. That's what I operated on.

         Mr. Howell moved that the sentencing order be changed to reflect that he would be parole-eligible after ten years of incarceration. The State objected to this modification, arguing that the requirement of serving at least fifteen years in prison was "the essence of the plea agreement[, ]" and that the State would not have entered into the plea bargain without this provision. Because the fifteen-year provision was specified in the plea agreement, the circuit court denied Mr. Howell's motion to reduce the parole eligibility period to ten years and a sentencing order was entered on May 12, 2016. Mr. Howell appealed that order.

         In October 2017, we affirmed the circuit court's order.[6] But in February 2018, we granted Mr. Howell's request for rehearing, ultimately reversing our prior decision on the matter and vacating the original plea agreement and conviction.[7] We remanded the case to the circuit court with instruction to return the parties to their respective positions post-indictment but prior to entry of the plea agreement.

         Shortly after the decision of this Court, an assistant prosecutor called Mr. Howell's lawyer to discuss a possible resolution of the case. During the April 25, 2018 conversation, the assistant prosecutor told Mr. Howell's lawyer that the State would be willing to offer the original plea agreement with the modification that Mr. Howell would be eligible for parole in ten years, but noted that he hadn't had a chance to talk it over with the victim. The State describes this conversation as its offer to enter into a plea agreement, while Mr. Howell contends that it was instead the State's acceptance of his offer to plead by virtue of his prior arguments to this Court in the underlying appeals.

         After speaking with the victim, the assistant prosecutor contacted Mr. Howell's lawyer two days later and revoked the offer. Notably, during a May 10, 2018 pretrial hearing, there was no discussion of the April 25, 2018 plea communication. Instead, the State and Mr. Howell's lawyer discussed plea proposals different than that proposed on April 25. By Mr. Howell's own admission, the April 25 plea offer was not communicated to him until after the May 10, 2018 hearing-two weeks after it had been withdrawn.

         On June 28, 2018, Mr. Howell's lawyer sent a text message to Assistant Prosecutors Eric M. Gordon and Herman Lantz, requesting a written plea offer. The assistant prosecutors informed Mr. Howell's lawyer that there was no plea offer on the table.

         Mr. Howell then filed his Motion to Enforce State of West Virginia's Agreement to Enter Corrected Sentencing Order/Correct Sentence. In this motion, Mr. Howell argued that the April 25, 2018 communication from the assistant prosecutor was an acceptance of his prior offer to plead-an offer he contends was made known to the State by implication through his brief to this Court in the previous appeal, in which he sought a correction of his sentence from a fifteen-year minimum eligibility for parole to a ten-year minimum.

         At a July 16, 2018 hearing, the circuit court determined that an enforceable plea agreement had been reached and directed the parties to return that afternoon to accept the plea. The State objected to this order and requested a delay to allow the filing of this Petition for a Writ of Prohibition. The circuit court denied this request and took the plea on the same day over the State's objection and without the State's signature on the plea agreement.

         II. Standard of Review

         In support of its petition for a writ of prohibition, the State argues that the circuit court abused its discretion in ruling that an enforceable plea agreement existed and in further ordering specific performance of the agreement. Our law is well established that we consider five factors in determining whether to grant a writ in this context:

[i]n 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 exceed 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 problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining ...

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