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Miller v. Roberts

Supreme Court of West Virginia

May 24, 2019

Andrew Miller, Petitioner Below, Petitioner
v.
Craig Roberts, Superintendent, McDowell County Corrections, Respondent Below, Respondent

          Raleigh County 15-C-707

          MEMORANDUM DECISION

         Petitioner Andrew Miller, by counsel Thad A. Bowyer, appeals the January 18, 2018, order of the Circuit Court of Raleigh County denying his petition for writ of habeas corpus. Respondent, Craig Roberts, [1] Superintendent, McDowell County Corrections, by counsel Caleb A. Ellis, filed a response in support of the circuit court's order. On appeal, petitioner alleges that the circuit court erred in denying him habeas relief because the State breached the plea agreement, the habeas court committed plain error when it affirmed the trial's court's acceptance of the State's breach of the plea agreement, and petitioner received ineffective assistance of counsel.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         On the night of May 7, 2009, petitioner, along with Jamal Cousins and Ryan Monroe, broke into the home of Jessica Mitchell. They threatened her with guns and then left the home. Petitioner and Mr. Monroe then encountered Troy Hall and Frankie Miller, who invited petitioner and Mr. Monroe to their home to get cigarettes. When they arrived, petitioner and Mr. Monroe held the two men at gunpoint and petitioner took some jewelry from Mr. Hall. Petitioner and Mr. Monroe then continued to demand items of value from the two men and discussed killing them. Mr. Miller's brother-in-law came to the house, saw what was going on through the window, and alerted the police. Petitioner and Mr. Monroe were arrested. Petitioner was charged with two counts of burglary, three counts of wanton endangerment involving a firearm, two counts of kidnapping, one count of first-degree robbery, one count of malicious wounding, and two counts of conspiracy to commit murder.

         On February 11, 2010, petitioner signed a plea agreement providing that he would plead guilty to one count of burglary, one count of wanton endangerment, one count of kidnapping, and one count of conspiracy to commit murder. In exchange, the State would recommend that the kidnapping sentence be a determinate ten years of incarceration. The agreement provided that "[o]ther than this recommendation, there is no sentencing agreement." A plea hearing was held on February 26, 2010, during which petitioner's plea was accepted by the circuit court. At an April 12, 2010, sentencing hearing, the prosecutor recommended that petitioner be sentenced to ten years for kidnapping and five years for wanton endangerment. Petitioner was sentenced to not less than one nor more than fifteen years of incarceration for his burglary conviction, five years of incarceration for his wanton endangerment conviction, ten years of incarceration for his kidnapping conviction, and not less than one nor more than five years of incarceration for his conspiracy to commit murder conviction. The sentences were to run consecutively. Petitioner did not file a direct appeal of his conviction or sentence, nor did he move to withdraw his plea.

         Petitioner filed a pro se petition for a writ of habeas corpus in the circuit court on July 20, 2015. He was appointed counsel and an amended petition was filed. Petitioner argued that by offering a sentencing recommendation for wanton endangerment, in addition to the agreed upon ten years for the kidnapping conviction, the State breached the plea agreement. He also argued that the trial court's acceptance and affirmation of the State's altered plea recommendations constituted plain error. Petitioner further asserted that he received ineffective assistance of counsel due to his attorney's failure to object to the State's breach of the plea agreement at sentencing. The circuit court held an evidentiary hearing during which petitioner presented no evidence. On January 18, 2018, the circuit court denied petitioner's amended petition. It determined that there was no breach of the plea agreement. The circuit court found that the State agreed to recommend ten years of incarceration for the kidnapping charge and beyond that, there was no agreement. The court determined that the State's misspeak during the plea hearing did not amount to a breach of the plea agreement. The circuit court further determined that the trial court's acceptance of the plea agreement did not amount to plain error. It found that the written plea agreement, as well as the plea colloquy, clarified the intent of the parties regarding the terms of the plea agreement. Finally, the circuit court determined that petitioner did not receive ineffective assistance of counsel. Because the plea agreement was not breached, counsel below had no reason to object. It is from this order that petitioner appeals.

         This Court reviews appeals of circuit court orders denying habeas corpus relief under the following standard:

"In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three-prong standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standard; and questions of law are subject to a de novo review." Syllabus point 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

         Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).

         Petitioner raises three assignments of error on appeal. First, he contends that the circuit court was clearly erroneous in failing to find that the State breached the plea agreement. It has been established that

"[c]ases 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." Syl. Pt. 1, State ex rel. Brewer v. Starcher, 195 W.Va. 185, 465 S.E.2d 185 (1995).

Syl. Pt. 1, State v. Shrader, 234 W.Va. 381, 765 S.E.2d 270 (2014).

         The plea agreement provides, in relevant part, that "[t]he State will recommend that the kidnapping sentence should be under W.Va. Code § 61-2-14(a)(4) and should be a flat ten years. Other than this recommendation, there is no sentencing agreement." During the plea hearing, the prosecuting attorney advised the circuit court that the only agreement regarding sentencing was that the State would recommend ten years for the kidnapping sentence and that "beyond that, there is no sentencing recommendation." At the sentencing hearing, the State then recommended ten years of incarceration for the kidnapping charge and five years of incarceration for the wanton endangerment with a firearm charge. The State made no recommendations on the remaining charges.

         Petitioner asserts that the State's recommendation at sentencing was in direct conflict with the language of the plea agreement and drastically exceeded the agreed sentencing recommendation. Petitioner argues that the plea agreement should be interpreted to mean that the State will recommend ten years of incarceration only and that is the entire agreement. He asserts that this interpretation is supported by the prosecutor's explanation of the plea agreement during the plea hearing in which the prosecutor stated that it was the only agreement regarding sentencing and that "beyond that there is no sentencing recommendation." Petitioner argues that the terms of the agreement were ambiguous and pursuant to State ex rel. Thompson v. Pomponio,233 W.Va. 212, 220757 S.E.2d 636, 644 (2014), "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 ...


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