Tuesday 2nd
June, 1998.
John Edward Watkins, s/k/a
John Edward Watkins, Sr., Appellant,
against Record No. 0936-96-3
Circuit Court No. CR95007076
Commonwealth of Virginia, Appellee.
Upon a Rehearing En Banc
Before Chief Judge Fitzpatrick, Judges Baker, Benton,
Coleman, Willis, Elder, Bray, Annunziata, Overton and Bumgardner
James Hingeley, Public Defender, for
appellant.
Richard B. Smith, Assistant Attorney General
(Richard Cullen, Attorney General, on
briefs), for appellee.
By opinion dated October 14, 1997, a panel of this Court
reversed the conviction of John Edward Watkins for feloniously
operating a motor vehicle after having been adjudicated an habitual
offender. The Commonwealth's petition for rehearing en banc was
granted and heard on April 23, 1998. Upon rehearing, the opinion
previously rendered on October 14, 1997 is withdrawn, the mandate
entered on that date is vacated and we affirm the conviction.
The panel held that the trial court erred in refusing to
compel the Commonwealth to uphold a conditional plea agreement. Upon
rehearing, we hold the plea agreement became ineffectual when the
district court allowed the Commonwealth to nolle prosequi the charges
due to the failure of a witness to appear. "When the trial court
enters a nolle prosequi of an indictment, it lays 'to rest that
indictment and the underlying warrant without disposition, as though
they had never existed.'" Burfoot v. Commonwealth, 23 Va. App. 38,
44, 473 S.E.2d 724, 727 (1996) (quoting Arnold v. Commonwealth, 18 Va.
App. 218, 222, 443 S.E.2d 183, 185, aff'd en banc, 19 Va. App. 143,
450 S.E.2d 161 (1994)). "After a nolle prosequi of an indictment, the
slate is wiped clean, and the situation is the same as if 'the
Commonwealth had chosen to make no charge.'" Id.
The entry of the nolle prosequi terminated the original
charges, as well as Watkins' conditional plea agreement, as if they
had never existed. When the Commonwealth subsequently brought a new
indictment, it was "a new charge, distinct from the original charge or
indictment." Arnold, 18 Va. App. at 221, 443 S.E.2d at 185.
Therefore, the Commonwealth was not bound by the prior plea agreement,
and the said conviction is affirmed. Appellant's conviction of
driving while intoxicated remains unchanged.
For the reasons stated in the panel's opinion, see Watkins
v. Commonwealth, 25 Va. App. 646, 491 S.E.2d 755 (1997), Judges Benton
and Annunziata would reverse the conviction.
The Commonwealth shall recover of the appellant the costs in
this Court, which costs shall include a fee of $925 for services
rendered by the Public Defender on this appeal, in addition to
counsel's necessary direct out-of-pocket expenses, and the costs in
the trial court.
This order shall be published and certified to the trial
court.
-2-
Costs due the Commonwealth
by appellant in Court of
Appeals of Virginia:
Public Defender $925.00 plus costs and expenses
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
-3-
COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Duff
Argued by Teleconference
JOHN EDWARD WATKINS, S/K/A
JOHN EDWARD WATKINS, SR.
OPINION BY
v. Record No. 0936-96-3 JUDGE ROSEMARIE ANNUNZIATA
OCTOBER 14, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Richard S. Miller, Judge
James Hingeley, Public Defender, for
appellant.
Richard B. Smith, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Appellant, John Edward Watkins, s/k/a John Edward Watkins,
Sr., appeals his conviction for feloniously operating a motor
vehicle after having been adjudicated an habitual offender. 1 He
contends that the trial court erred in refusing to compel the
Commonwealth to uphold its agreement to reduce the charge to a
misdemeanor offense. We agree and reverse his conviction.
I.
On July 10, 1995, appellant appeared in general district
court for a preliminary hearing on the felony charge of driving
after having been declared an habitual offender and for trial on
a misdemeanor charge of driving while intoxicated. Before the
cases were called, the Assistant Commonwealth's attorney informed
1
Appellant was also convicted of driving while intoxicated.
appellant's counsel that she did not have a copy of the order
adjudicating appellant an habitual offender and that she would
like a continuance. Plea negotiations ensued, and the resulting
agreement followed: appellant promised not to oppose the
Commonwealth's request for a continuance, and the Commonwealth
promised to reduce the habitual offender charge from a felony to
a misdemeanor, to which appellant would then plead guilty.
Appellant also agreed to plead guilty to driving while
intoxicated.
Appellant stood silent, as the Commonwealth requested, and
the trial court granted a continuance. When the hearing
reconvened on August 2, 1995, appellant was prepared to plead
guilty to the misdemeanor habitual offender charge and to driving
while intoxicated. The Commonwealth, however, represented by a
different attorney, refused to reduce the habitual offender
charge and announced its intent to prosecute the felony offense.
The trial court rejected appellant's motion to compel the
Commonwealth to reduce the charge in accord with the prior
agreement, finding that
until the Defendant is substantially
prejudiced, . . . there is no agreement
enforceable by the Defendant with the
Commonwealth. And, in fact, the Commonwealth
can withdraw its agreement at any time up
until that point.
Appellant pled not guilty, was tried by the court, and was
convicted.
-5-
II.
Under the terms of the parties' agreement, the Commonwealth
promised to reduce the charge against appellant from a felony to
a misdemeanor in exchange for appellant's promise not to oppose
the Commonwealth's request for a continuance and to plead guilty
to two misdemeanor offenses. Appellant performed all that was
required of him by the agreement prior to the Commonwealth's
obligation to perform. The Commonwealth failed to perform. The
issue on appeal is whether the trial court erred in refusing to
compel the Commonwealth's performance. Under the facts of this
case, we hold that the trial court erred, and we reverse
appellant's conviction.
The principles which guide our decision are "an amalgam of
constitutional, supervisory, and private [contract] law
concerns," which comprise a body of law unique to plea
bargaining. United States v. Harvey, 791 F.2d 294, 300 (4th Cir.
1986). While plea bargains are analogous to commercial
contracts, they do not demand strict application of the common
law principles of contract. See, e.g., id.; United States v.
Mozer, 828 F. Supp. 208, 215 (S.D.N.Y. 1993); State v. Brockman,
357 A.2d 376, 383 (Md. App. 1976); see generally, William M.
Ejzak, Plea Bargains and Nonprosecution Agreements: What
Interests Should Be Protected When Prosecutors Renege?, 1991
U. Ill. L. Rev. 107 (1991); Lawrence K. Rynning, Note,
Constitutional Recognition for Defendant's Plea Bargaining
-6-
Expectations in the Absence of Detrimental Reliance, 58 N.C.L.
Rev. 599 (1980). "The rigid application of contract law to plea
negotiations would be incongruous since, for example, the trial
court is not ordinarily bound by the compact and [the government]
cannot obtain `specific performance' of a defendant's promise to
plead guilty." Brockman, 357 A.2d at 383. Furthermore, rigid
application of contract principles is tempered by the fact that
"the defendant's underlying `contract' right is constitutionally
based and, therefore, reflects concerns that differ fundamentally
from and run wider than those of commercial contract law."
Harvey, 791 F.2d at 300. Moreover, underlying any criminal
prosecution are concerns for the "`honor of the government,
public confidence in the fair administration of justice, and the
effective administration of justice.'" Id. (quoting United
States v. Carter, 454 F.2d 426, 428 (4th Cir. 1972), cert.
denied, 417 U.S. 933 (1974)).
"The prevailing doctrine is that `the State may withdraw
from a plea agreement at any time prior to, but not after, the
actual entry of the guilty plea by the defendant or other action
by him constituting detrimental reliance upon the agreement.'"
W. LaFave & J. Israel, Criminal Procedure § 20.2(e) (1984)
(quoting Shields v. State, 374 A.2d 816 (Del.), cert. denied, 434
U.S. 893 (1977)); see also, e.g., Virgin Islands v. Scotland, 614
F.2d 360, 365 (3d Cir. 1980); United States v. Savage, 978 F.2d
1136, 1138 (9th Cir. 1992), cert. denied, 507 U.S. 997 (1993);
-7-
United States v. Gonzales, 918 F.2d 1129, 1134 n.2 (3d Cir.
1990), cert. denied, 498 U.S. 1107 (1991). The decision to
compel enforcement of the agreement, in other words, is
determined according to the action taken by the defendant, if
any, in reliance on the agreement.
When a defendant enters a plea of guilty in reliance on an
agreement with the government, enforcement of the agreement will
be compelled. Santobello v. New York, 404 U.S. 257, 264 (1971)
("[W]hen a plea rests in any significant degree on a promise or
agreement of the prosecutor, so that it can be said to be part of
the inducement or consideration, such promise must be
fulfilled."); Johnson v. Commonwealth, 214 Va. 515, 517-18, 201
S.E.2d 594, 596 (1974); Jordan v. Commonwealth, 217 Va. 57,
58-61, 225 S.E.2d 661, 661-64 (1976); Jones v. Commonwealth, 217
Va. 248, 256, 227 S.E.2d 701, 706-07 (1976). 2
When a defendant has taken no action in reliance on the
agreement, however, the contrary result obtains. An offer by the
government alone, even if accepted by the defendant under common
law contract principles, does not require specific enforcement of
the agreement. See Mabry v. Johnson, 467 U.S. 504, 507-08 (1984)
2
Indeed, a defendant's "detrimental reliance" is manifest
when he or she enters a plea of guilty pursuant to an agreement
with the government because "the entry of a guilty plea is a
waiver of certain constitutional rights . . . [including] the
Fifth Amendment right against compulsory self-incrimination, the
Sixth Amendment right to trial by jury, and the Sixth Amendment
right of confrontation." See, e.g., Gardner v. Warden, 222 Va.
491, 493-94, 281 S.E.2d 876, 877 (1981).
-8-
("A plea bargain standing alone is without constitutional
significance; in itself it is a mere executory agreement which,
until embodied in the judgment of a court, does not deprive an
accused of liberty or any other constitutionally protected
interest. It is the ensuing guilty plea that implicates the
Constitution."); People v. Heiler, 262 N.W.2d 890, 895 (Mich.
App. 1977) ("To hold the prosecutor bound by the agreement under
[such circumstances] would . . . actually inhibit the
dispositional use of plea bargaining by placing the prosecutor at
an absolute disadvantage."). Enforcement is not compelled absent
some performance by the defendant because, under such
circumstances, the defendant's right to trial by jury remains a
sufficient remedy to the government's withdrawal of the
agreement. Indeed,
[the] fundamental right [to trial by jury]
would be belittled if [it were] held [] to be
an insufficient "remedy" or result for a
defendant who has not been induced to rely on
the plea to his detriment. The prosecutor is
under no duty to plea bargain if no offer is
made, and the defendant is entitled to trial.
There is no rational basis for holding, in
essence, that a trial is sufficient for the
defendant who has not been offered a plea and
insufficient for the one who has.
Virgin Islands v. Scotland, 614 F.2d 360, 365 (3rd Cir. 1980).
A middle ground exists when the defendant, although not
having pled guilty, has taken some "other action" pursuant to a
plea agreement. In such a case, the full panoply of
constitutional protections attending a plea of guilty does not
-9-
attain, yet, the agreement cannot be dismissed as executory when
the defendant has acted in accordance with the terms of the
agreement. The issue is what "other action" taken by the
defendant, short of pleading guilty, compels enforcement of the
agreement.
Some courts hold that enforcement of the agreement should be
compelled only where the defendant's performance implicates his
or her constitutional rights. See, e.g., People v. Navarroli,
521 N.E.2d 891, 895 (Ill. 1988) (agreement not enforced because
defendant's cooperation in informing police with respect to
ongoing drug transactions did not implicate constitutional
right). We disagree with that position because, as stated above,
a defendant's constitutional rights are not always, necessarily,
3
the basis for compelling enforcement of plea agreements.
3
We recognize that the procedural posture of a case may
demand that enforcement be determined in strict adherence to
constitutional principles. See Mabry, 467 U.S. at 507 (where
defendant could "obtain . . . relief only if his custody is in
violation of the Federal Constitution"). Our decision here,
however, is not constrained by such principles.
In addition, we note that the performance necessary to
implicate the constitution as a vehicle for enforcing a plea
agreement has received varying interpretation. Some courts have
held that the constitution requires enforcement only where a
defendant enters an involuntary plea in reliance on the
agreement. See United States v. Coon, 805 F.2d 822, 825 (8th
Cir. 1986). Under that theory, even cooperation with the
government that leads to incriminating statements does not
implicate the constitution, because incriminating statements can
simply be suppressed at trial. See id. Other courts have held
that the constitution requires enforcement only when a defendant
waives a constitutional right in reliance on the agreement. See
Navarroli, 521 N.E.2d at 895 (agreement not enforced because
defendant's cooperation in informing police with respect to
ongoing drug transactions did not implicate constitutional
-10-
Rather, the decision to compel enforcement is guided by "an
amalgam of constitutional, supervisory, and private [contract]
law concerns." Harvey, 791 F.2d at 300. See also Navarroli, 521
N.E.2d at 899 (Clark, J., dissenting) (criticizing majority for
failing to look beyond constitutional implications of defendant's
performance to enforce agreement on other grounds); Workman v.
Commonwealth, 580 S.W.2d 206, 207 (Ky. 1979), overruled on other
grounds, 817 S.W.2d 218 (Ky. 1991) ("If the government breaks its
word, it breeds contempt for integrity and good faith. It
destroys the confidence of citizens in the operation of their
government and invites them to disregard their obligations. That
way lies anarchy. We deal here with a `pledge of public faith--a
promise made by state officials--and one that should not be
lightly disregarded.'"); see generally Rynning, supra, at 606-07
(Examples of detrimental reliance requiring enforcement of an
agreement have included: "[p]roviding information to government
authorities, testifying for the government, confessing guilt,
returning stolen property, making monetary restitution, failing
to file a motion to have charges presented to a grand jury,
submitting to a lie detector test and waiving certain procedural
guarantees.") (citations omitted).
right). Yet other courts hold that enforcement on constitutional
grounds does not require a defendant's reliance on the agreement
to implicate constitutional rights. See People v. MacRander, 756
P.2d 356, 360-61 (Colo. 1988) (waiver of preliminary hearing in
reliance on agreement sufficient to require enforcement of
agreement).
-11-
Guided by such principles, we hold that where a plea
agreement calls for performance by the defendant and the
defendant has performed pursuant to the terms of the agreement,
the agreement will be enforced. 4 We find no authority to support
a qualitative analysis of a defendant's performance and find,
instead, that the terms of the parties' agreement best define
their respective performance obligations.
In the present case, appellant did not enter a guilty plea
in reliance on the plea agreement; thus, his reliance on
Santobello, Johnson, Jordan, and Jones is misplaced. This is not
a case, however, where the government sought to withdraw an
agreement that consisted solely of an exchange of executory
promises upon which the defendant had not acted. Cf. Mabry, 467
U.S. at 507-08; Heiler, 262 N.W.2d at 892. Rather, this case
presents the middle ground. Here, because appellant had fully
performed his obligation under the terms of the agreement, he was
entitled to have the agreement enforced.
Accordingly, we reverse appellant's conviction on the
5
habitual offender charge and remand for further proceedings
4
We reject the Commonwealth's suggestion that a plea
agreement has no legal significance until it is accepted by the
court pursuant to Rule 3A:8(c)(1). That contention is contrary
to the vast weight of authority on the subject and ignores the
heart of the issue in these cases: the government's fair
treatment of criminal defendants during the course of plea
bargaining.
5
The appellant's conviction on the DWI charge remains
unchanged by this decision since the Commonwealth's failure to
perform its part of the agreement had no detrimental effect on
appellant with respect to this charge.
-12-
consistent with this opinion.
Reversed and remanded.
-13-