Raleigh County 15-C-707
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,  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.
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.
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
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.
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.
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).
Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va.
375, 701 S.E.2d 97 (2009).
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).
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.
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