IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2014 Term
FILED
April 23, 2014
released at 3:00 p.m.
RORY L. PERRY II, CLERK
No. 13-1036 SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA EX REL. BRYAN D. THOMPSON,
Petitioner
v.
THE HONORABLE JOSEPH C. POMPONIO, JUDGE OF THE CIRCUIT COURT OF
POCAHONTAS COUNTY and EUGENE M. SIMMONS, PROSECUTING
ATTORNEY FOR POCAHONTAS COUNTY, WEST VIRGINIA,
Respondents
PETITION FOR WRIT OF PROHIBITION
WRIT GRANTED
Submitted: February 12, 2014
Filed: April 23, 2014
J. Steven Hunter, Esq. Robert P. Martin, Esq.
Steven Hunter Associates, l.c. Assistant Prosecuting Attorney
Lewisburg, West Virginia Marlinton, West Virginia
Attorney for Petitioner Bryan D. Attorney for Respondent Eugene M.
Thompson Simmons
JUSTICE LOUGHRY delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “Where prohibition is sought to restrain a trial court from the abuse of its
legitimate powers, rather than to challenge its jurisdiction, [this] appellate court will
review each case on its own particular facts to determine whether a remedy by appeal is
both available and adequate, and only if the appellate court determines that the abuse of
power is so flagrant and violative of petitioner’s rights as to make a remedy by appeal
inadequate, will a writ of prohibition issue.” Syl. Pt. 2, Woodall v. Laurita, 156 W.Va.
707, 195 S.E.2d 717 (1973).
2. “‘In 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 exceeded 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 issues of law of first
impression. These factors are general guidelines that serve as a useful starting point for
determining whether a discretionary writ of prohibition should issue. Although all five
i
factors need not be satisfied, it is clear that the third factor, the existence of clear error as
a matter of law, should be given substantial weight.’ Syllabus Point 4, State ex. rel.
Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).” Syl. Pt. 2, State ex. rel. Weirton
Med. Ctr. v. Mazzone, 214 W.Va. 146, 587 S.E.2d 122 (2002).
3. Due to the significant constitutional rights that a criminal defendant
waives in connection with the entry of a guilty plea, 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 agreement will be construed against the State and in
favor of the defendant.
4. “‘A prosecuting attorney or his successor is bound to the terms of a plea
agreement once the defendant enters a plea of guilty or otherwise acts to his substantial
detriment in reliance thereon.’ Syllabus, State ex rel. Gray v. McClure, 161 W.Va. 488,
242 S.E.2d 704 (1978).” Syl. Pt. 2, State v. Palmer, 206 W.Va. 306, 524 S.E.2d 661
(1999).
5. “When a defendant enters into a valid plea agreement with the State that
is accepted by the trial court, an enforceable ‘right’ inures to both the State and the
defendant not to have the terms of the plea agreement breached by either party.” Syl. Pt.
4, State v. Myers, 204 W.Va. 449, 513 S.E.2d 676 (1998).
ii
LOUGHRY, Justice:
The petitioner, Bryan D. Thompson, invokes this Court’s original
jurisdiction1 by seeking a writ of prohibition to prevent his prosecution on charges of
breaking and entering and grand larceny. The petitioner contends that those charges were
previously dismissed pursuant to a court-approved plea agreement. For the reasons set
forth below, we grant the requested writ.
I. Factual and Procedural Background
In October of 2007, the petitioner was indicted by a Pocahontas County
grand jury in a case numbered 07-F-14 (hereinafter “Case No. 07-F-14”). Count I of the
indictment charged him with conspiracy to commit a felony in violation of West Virginia
Code § 61-10-31 (2010), and Count III charged him with delivery of a controlled
substance in violation of West Virginia Code § 60A-4-401 (2010), both felony offenses.2
The State represents that after the petitioner was indicted, he was “at large” for a period
of years until he was located in Florida, arrested, and returned to the State of West
Virginia.
1
See W.Va. Const. art. VIII, § 3.
2
Two co-defendants were also named in the indictment. Counts II and IV were
directed solely as to those individuals.
1
Following the petitioner’s return to West Virginia, he was charged in a
magistrate court criminal complaint with breaking and entering in violation of West
Virginia Code § 61-3-12 (2010) in a case numbered 11-F-12 (hereinafter “Case No. 11-F
12”) and grand larceny in violation of West Virginia Code § 61-3-13(a) (2010) in a case
numbered 11-F-13 (hereinafter “Case No. 11-F-13”). These charges, which arose out of
an incident involving Sharp’s Store located in Pocahontas County, were bound over to the
grand jury following the petitioner’s waiver of his right to have a preliminary hearing.3
More than a year later, the petitioner entered into a plea agreement with the
State through then Pocahontas County Prosecuting Attorney, Donna Price (“Ms. Price”).
The plea agreement provided that the petitioner would plead guilty to conspiracy to
commit a felony, as charged in Count I of Case No. 07-F-14, and the State would dismiss
“the pending charge of Breaking and Entering against the defendant[] & Count 3 of the
indictment. (Delivery)[.]”4 The plea agreement further provided that the State would not
oppose the petitioner’s request for credit for time served or a future motion for parole.
3
Although it appears that these charges were never presented to a grand jury, the
appendix record reflects that they were assigned new “bound over” case numbers: 11-B-107
and 11-B-108. For purposes of this opinion, we refer to these charges by their magisterial
case numbers.
4
Because Count III of the indictment in Case No. 07-F-14 is referred to as “Count 3”
in the plea agreement and elsewhere in the appendix record, hereinafter, we use the same
manner of reference.
2
On July 26, 2012, a plea hearing was held before the circuit court during
which Ms. Price moved to dismiss “Count 3 . . . of 07-F-14, and the outstanding pending
matter of the breaking and entering. Case numbers have not been assigned . . . .”5
(emphasis added.). The circuit court accepted the petitioner’s guilty plea to Count I of
Case No. 07-F-14 and then stated it was dismissing “the pending breaking and entering
charge against the defendant in Count 3 of the indictment from the active docket.”6 The
petitioner agreed to waive the pre-sentence report and requested the circuit court to
proceed with sentencing. The circuit court accepted the waiver, sentenced the petitioner
to one to five years in prison for the conspiracy to commit a felony, and suspended the
sentence. That same day, the circuit court issued an “Amended Order Discharging
Defendant From Further Jail and Granting Him Immediate Release” (“Amended Order”).
The Amended Order states that “[t]he pending matters in Pocahontas County, to wit: 11
F-12 [breaking and entering] and 11-F-13 [grand larceny] ha[d] been dismissed upon the
5
We find Ms. Price’s choice of words to be instructive, as more fully discussed, infra.
6
In making this statement, the circuit court mistakenly believed that Count 3 was the
breaking and entering charge, when in fact, Count 3 was the delivery of a controlled
substance charge in Case No. 07-F-14. The breaking and entering was the charge in Case
No. 11-F-12.
3
States [sic] Motion[;]”7 it further provided for the petitioner’s immediate discharge from
custody.8
In January of 2013, the respondent, Eugene Simmons (hereinafter “Mr.
Simmons”), assumed the office of prosecuting attorney for Pocahontas County. Based on
his concerns regarding the work of Ms. Price, his predecessor in office, Mr. Simmons
undertook a review of the cases prosecuted by Ms. Price during her tenure. In conducting
that review, Mr. Simmons observed that the petitioner’s plea agreement did not identify
the breaking and entering charge by case number, did not mention the grand larceny
charge, and did not specify whether the dismissal of charges was with prejudice. On
April 18, 2013, Mr. Simmons presented the charges arising out of the incident involving
Sharp’s Store to a grand jury; an indictment was returned against the petitioner for entry
of a building in violation of West Virginia Code § 61-3-12 and grand larceny in violation
of West Virginia Code § 61-3-13(a) in a case numbered 13-F-06 (hereinafter “Case No.
13-F-06”).
7
Although the plea agreement states that Count 3 (delivery of a controlled substance)
was to be dismissed, which was echoed by Ms. Price during the plea hearing, the circuit
court’s Amended Order is silent as to Count 3.
8
The petitioner states that as of the July 2012 plea hearing, he had spent thirteen
months in jail. Upon his release, he was placed on probation.
4
The petitioner states that on May 1, 2013, he filed a motion to quash9 the
indictment in Case No. 13-F-06 on the grounds that the underlying charges were
dismissed as part of the plea agreement that had been accepted and approved by the
circuit court on July 26, 2012. The State opposed the motion on the basis that the plea
agreement lacked specificity regarding the breaking and entering charge10 and was silent
on the issue of whether the dismissal of the charges was with prejudice. On June 19,
2013, the circuit court denied the motion to quash during its hearing on the motion.11
On or about July 15, 2013, the petitioner filed a renewed motion to quash
and a motion for specific performance of the plea agreement. Arguing that he had upheld
his end of the plea agreement and that the State was similarly bound to do the same, the
petitioner maintained that he could not be indicted on charges that had been dismissed by
the circuit court pursuant to that agreement. In response, the State reasserted the lack of
specificity in the plea agreement regarding the charges being dismissed, as well as the
absence of language to indicate that the dismissal of charges was with prejudice. The
9
Motions to quash were abolished under Rule 12(a) of the West Virginia Rules of
Criminal Procedure. The appendix record reflects that the circuit court treated the
petitioner’s motion to quash as a motion to dismiss.
10
Mr. Simmons represents in his response to the petition before this Court that the
State is no longer seeking to prosecute the petitioner for the alleged violation of West
Virginia Code § 61-3-12.
11
The hearing transcript reflects the circuit court’s ruling in this regard. A
corresponding order reflecting this ruling is not included in the appendix record.
5
circuit court denied the petitioner’s motions, finding no mention of the term “with
prejudice” in the plea agreement. Thereafter, the petitioner filed his petition for a writ of
prohibition with this Court seeking to prevent his prosecution in Case No. 13-F-06 and to
procure his immediate discharge from custody.
II. Standard for Issuance of Writ of Prohibition
The petitioner argues that the circuit court abused its legitimate powers by
denying his motion to quash the indictment and for specific performance of the plea
agreement. Because the petitioner seeks to prohibit the circuit court from abusing its
legitimate powers, the following standard applies:
Where prohibition is sought to restrain a trial court
from the abuse of its legitimate powers, rather than to
challenge its jurisdiction, the appellate court will review each
case on its own particular facts to determine whether a
remedy by appeal is both available and adequate, and only if
the appellate court determines that the abuse of powers is so
flagrant and violative of petitioner’s rights as to make a
remedy by appeal inadequate, will a writ of prohibition issue.
Syl. Pt. 2, Woodall v. Laurita, 156 W. Va. 707, 195 S.E.2d 717 (1973). This Court
enumerated the following factors that are to be considered when deciding whether to
issue a writ of prohibition in these circumstances:
“In 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 exceeded 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
6
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 whether a
discretionary writ of prohibition should issue. Although all
five factors need not be satisfied, it is clear that the third
factor, the existence of clear error as a matter of law, should
be given substantial weight.” Syllabus Point 4, State ex rel.
Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).
Syl. Pt. 2, State ex. rel. Weirton Med. Ctr. v. Mazzone, 214 W.Va. 146, 587 S.E.2d 122
(2002). With this standard in mind, we consider the merits of the petitioner’s request for
a writ of prohibition.
III. Discussion
The petitioner asserts that pursuant to his court-approved plea agreement,
he pled guilty to the felony offense of conspiracy to commit a felony in exchange for the
State’s agreement to dismiss all other charges pending against him: the delivery of a
controlled substance in Count 3 (Case No. 07-F-14), as well as the bound-over charges of
breaking and entering (Case No. 11-F-12) and grand larceny (Case No. 11-F-13).
Maintaining that he has not violated any terms of the plea agreement, the petitioner seeks
to enforce the terms of that agreement so as to obtain the benefit of his bargain. In
contrast, Mr. Simmons argues that the plea agreement only references a charge of
7
“breaking and entering,” rather than a violation of West Virginia Code § 61-3-12 as
charged in Case No. 11-F-12,12 and that there is no mention of the grand larceny charge.
He also maintains that because the plea agreement did not indicate the dismissal of
charges was with prejudice, the petitioner could be indicted on those charges.
Upon our review of the appendix record, we find the subject plea agreement
to be ambiguous and deficient in its construction. Instead of clearly identifying the
charges being dismissed in exchange for the petitioner’s guilty plea, the agreement simply
provides that the State will dismiss the “pending charge of Breaking and Entering” and
“Count 3 of the indictment. (Delivery)[.]”13 Further, the agreement does not mention the
pending grand larceny charge (Case No. 11-F-13). These drafting deficiencies can be
12
Mr. Simmons appears to question whether the plea agreement’s reference to
“breaking and entering” contemplates the criminal complaint in Case No. 11-F-12, which
charged the petitioner with a violation of West Virginia Code § 61-3-12. This statute
provides, in part:
If any person shall, at any time, break and enter . . ., or
shall enter without breaking, any . . . storehouse . . . or any . .
. building . . . with intent to commit a felony or any larceny, he
or she shall be deemed guilty of a felony . . . .
W.Va. Code § 61-3-12. Not only does the statute itself use the words “break and enter,” as
set forth above, but this Court has used the term “breaking and entering” when addressing
this statute. See, e.g., State v. Zacks, 204 W.Va. 504, 513 S.E.2d 911 (1998) (discussing
charges under § 61-3-12 as “breaking and entering” and noting existence of lesser included
offense of entering without breaking).
13
The delivery offense is arguably identifiable from other language in the plea
agreement indicating that the petitioner was indicted for delivery of a controlled substance.
8
traced to Ms. Price’s written work product, which Mr. Simmons describes as “defective,
[and] replete with typing and grammatical errors . . . .” The lack of precision in the plea
agreement was perpetuated by the State during the plea hearing when Ms. Price moved to
dismiss “Count 3 . . . of 07-F-14, and the outstanding pending matter of the breaking and
entering[,] and added that “[c]ase numbers have not been assigned . . . .” (emphasis
added.).14 This lack of precision appears to be entirely consistent with what Mr. Simmons
describes as “[t]he ineptitude and incompetence of Donna Price [as] seen in just about
every single file in the [prosecutor’s] office.”15 Further, Ms. Price’s “systematic practice
of . . . plea bargaining multiple felonies to single felony pleas[,]” as alleged by Mr.
Simmons, supports the petitioner’s argument that the subject plea agreement allowed him
to plead guilty to one felony in return for which the State would dismiss the remaining
felony charges pending against him.
14
Ms. Price’s reference to the “pending matter” and to “case numbers” were arguably
intended as a cumulative reference to the charges arising out of the incident at Sharp’s Store,
which included both breaking and entering and grand larceny; otherwise, one might expect
her to have used the words pending “charge,” not pending “matter,” and case “number,”
instead of case “numbers.”
15
Notwithstanding the deficiencies and ambiguities described herein, as indicated
previously, the circuit court ultimately understood that the State was dismissing both the
breaking and entering and the grand larceny charges under the terms of the plea agreement,
as reflected in its Amended Order, which states: “The pending matters in Pocahontas County
[against the petitioner], to wit: 11-F-12 [breaking and entering] and 11-F-13 [grand larceny]
having been dismissed upon the States [sic] Motion.” Although Mr. Simmons states “[t]here
is nothing in the record anywhere which relates to the dismissal of a Grand Larceny
charge[,]” he ignores Ms. Price’s statement during the plea hearing that arguably
encompasses that charge, as well as the circuit court’s Amended Order.
9
Having determined the plea agreement to be ambiguous, the question we
must resolve is whether the State should reap the benefit of its deficient drafting and be
allowed to prosecute the petitioner for offenses he understood were dismissed under the
plea agreement. In State ex rel. Forbes v. Kaufman, 185 W.Va. 72, 404 S.E.2d 763
(1991), this Court addressed the issue of ambiguity in a plea agreement. After approving
the plea agreement and accepting the defendant’s guilty plea, the circuit court imposed a
sentence more lenient than provided for in the plea agreement, which prompted the State
to seek to vacate both the plea and the defendant’s sentence. In analyzing the
agreement’s ambiguity as to sentencing, this Court observed that
[t]he Fourth Circuit, in United States v. Harvey, 791
F.2d 294, 300 (4th Cir.1986), recognized that “both
constitutional and supervisory concerns require holding the
Government to a greater degree of responsibility than the
defendant . . . for imprecisions or ambiguities in plea
agreements.” The Fourth Circuit further stated that “[t]his is
particularly appropriate where, as will usually be the case, the
Government has proffered the terms or prepared a written
agreement-for the same reasons that dictate that approach in
interpreting private contracts.” Id. at 301.
Forbes, 185 W.Va. at 77, 404 S.E.2d at 768.
In Harvey, the Fourth Circuit stated that
[i]n the process of determining whether disputed plea
agreements have been formed or performed, courts have
necessarily drawn on the most relevant body of developed
rules and principles of private law, those pertaining to the
formation and interpretation of commercial contracts. See
generally Westen & Westin, A Constitutional Law of
10
Remedies for Broken Plea Bargains, 66 Calif.L.Rev. 471
(1978) (analyzing cases in these terms). But the courts have
recognized that those rules have to be applied to plea
agreements with two things in mind which may require their
tempering in particular cases. First, 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. See Mabry
v. Johnson, 467 U.S. at 509, 104 S.Ct. at 2548 (broken
government promise that induced guilty plea implicates due
process clause because it impairs voluntariness and
intelligence of plea). Second, with respect to federal
prosecutions,16 the courts’ concerns run even wider than
protection of the defendant’s individual constitutional
rights-to concerns for the “honor of the government, public
confidence in the fair administration of justice, and the
effective administration of justice in a federal scheme of
government.” United States v. Carter, 454 F.2d 426, 428 (4th
Cir.1972).
U.S. v. Harvey, 791 F.2d 294, 300 (4th Cir.1986) (footnote added.). Due to the concern
for constitutional rights, as well as the supervisory role of government, the Fourth Circuit
found that the government must bear “a greater degree of responsibility than the
defendant . . . for imprecisions or ambiguities in plea agreements.” Id. This added burden
is “particularly appropriate where, as will usually be the case, the Government has
proffered the terms or prepared a written agreement–for the same reasons that dictate that
approach in interpreting private contracts.” Id. at 301.17
16
Although the Court in Harvey frames this second factor in terms of federal
prosecutions, these stated concerns are equally applicable to state prosecutions.
17
As we similarly explained in State ex rel. Gardner v. W. Va. Div. of Corr., 210
W.Va. 783, 786, 559 S.E.2d 929, 932 (2002),
(continued...)
11
Relying upon Harvey in Forbes, we found that because the plea agreement
was ambiguous as to sentencing, the State should not be permitted to benefit from its own
lack of oversight, particularly in view of the significant liberty interests and constitutional
rights waived by a defendant who enters into a plea agreement. As this Court explained,
[w]e agree with the Fourth Circuit’s observation [in
Harvey] that the state must insure that the terms of a plea
agreement are clear and exact. The defendant waives
significant constitutional rights by entering into a plea
agreement, such as the right to examine and confront
witnesses who would testify against the defendant, the
privilege against compulsory self-incrimination, the
presumption of innocence, and the right to a speedy trial.
Although we recognize that the state surrenders certain
prosecutorial prerogatives when it enters into a plea
agreement, we believe that a defendant’s waiver of his or her
constitutional rights outweighs the state’s foregoing of its
right to prosecute.
Forbes, 185 W.Va. at 77, 404 S.E.2d at 768 (emphasis added). Accordingly, we
concluded that
the state bears the primary responsibility for insuring
precision and unambiguity in a plea agreement because of the
significant constitutional rights the defendant waives by
entering a guilty plea. If a plea agreement is imprecise or
17
(...continued)
“[a]s a matter of criminal jurisprudence, a plea agreement is
subject to principles of contract law insofar as its application
insures a defendant receives that to which he is reasonably
entitled.” State ex rel. Brewer v. Starcher, 195 W.Va. 185, 192,
465 S.E.2d 185, 192 (1995). Such agreements require “ordinary
contract principles to be supplemented with a concern that the
bargaining and execution process does not violate the
defendant’s right to fundamental fairness[.]” State v. Myers, 204
W.Va. 449, 458, 513 S.E.2d 676, 685 (1998).
12
ambiguous, such imprecision or ambiguity will be construed
in favor of the defendant.
Id.; see also State v. Hayhurst, 207 W.Va. 259, 531 S.E.2d 324 (2000). Likewise, an
overwhelming majority of our sister states construe ambiguous plea agreements in favor
of the defendant and against the State. See, e.g., Humphrey v. State, 686 So.2d 560, 562
(Ala.Crim.App.1996) (stating ambiguous plea agreement must be read against the
government); Keller v. People, 29 P.3d 290, 297 (Colo. 2000) (finding ambiguous terms
of plea agreement must be construed in favor of defendant and against government); State
v. Adams, 982 A.2d 187, 191 (Conn.App. 2009) (recognizing that any ambiguity in plea
agreement should be construed against state); Stedman v. District of Columbia, 12 A.3d
1156, 1158 (D.C.App. 2011) (“The court will construe any ambiguity [in a plea
agreement] against the government.”); State v. Abbott, 901 P.2d 1296, 1299
(Haw.Ct.App. 1995) (strictly construing ambiguous terms in plea agreement in favor of
defendant); State v. Hurles, No. 39219, 2014 WL 185977, at *7 (Idaho App. Jan. 17,
2014) (“[A]mbiguities are construed in favor of the defendant. Focusing on the
defendant’s reasonable understanding also reflects the proper constitutional focus on what
induced the defendant to plead guilty.”); Valenzuela v. State, 898 N.E.2d 480, 482-83
(Ind. App. 2008) (“We construe any contract ambiguity against the party who drafted it,
which, in the case of plea agreements, is the State.”); State v. Wills, 765 P.2d 1114, 1120
(Kan.1988) (finding plea agreement that is reasonably susceptible to different
interpretations is ambiguous and must be strictly construed in favor of defendant); Elmore
13
v. Comm., 236 S.W.3d 623, 627-28 (Ky.App.2007) (“[W]hen a contract is [reasonably]
susceptible of two meanings, it will be construed strongest against the party who drafted
and prepared it[;]” “this rule should . . . be [applied] to plea agreements.”); State v. Leyba,
204 P.3d 37, 42 (N.M. 2009) (finding plea agreements are to be viewed and enforced in
their entirety with ambiguities construed in defendant’s favor); State v. Bethel, 854
N.E.2d 150, 167 (Ohio 2006) (construing ambiguous terms in plea agreement against
State); Com. v. Hainesworth, 82 A.3d 444, 447 (Pa.Super.Ct. 2013) (finding ambiguous
terms of plea agreement will be construed against Commonwealth); State v. Mellon, 118
S.W.3d 340, 347 (Tenn. 2003) (“Because the provisions of any plea agreement are largely
dictated by the State, and because of the substantial constitutional interests implicated by
plea agreements, the State must bear the risk for any lack of clarity in the agreement, and
ambiguities should be resolved in favor of the defendant.”).18
18
Similarly, federal courts construe ambiguous plea agreements in favor of defendants
and against the government. See, e.g., U.S. v. Isom, 580 F.3d 43, 51 (1st Cir. 2009) (“Under
the basic contract principles which we apply to the construction of plea agreements, we
construe such ambiguities against the government.”); U.S. v. Difeaux, 163 F.3d 725, 728 (2d
Cir. 1998) (recognizing ambiguous terms of plea agreement are construed against
government); U.S. v. Williams, 510 F.3d 416, 422 (3d Cir. 2007) (“[A]ny ambiguities in a
plea agreement must be construed against the government.”); U.S. v. Sibley, 448 F.3d 754,
759 (5th Cir. 2006) (stating all ambiguities in plea agreement must be construed against
government); U.S. v. Bowman, 634 F.3d 357, 360 (6th Cir. 2011) (“[A]mbiguities in a plea
agreement are . . . construed against the government, especially because the government can
take steps in drafting a plea agreement to avoid imprecision.”); U.S. v. Munoz, 718 F.3d 726,
729 (7th Cir. 2013) (construing ambiguities in plea agreement against government as drafter);
U.S. v. Andis, 333 F.3d 886, 890 (8th Cir. 2003) (reading ambiguities in plea agreements
against government); U.S. v. De la Fuente, 8 F.3d 1333, 1337-38 n.7 (9th Cir. 1993) (“The
construction we adopt . . . incorporates the general rule that ambiguities are construed in
(continued...)
14
In consideration of our decision in Forbes, as well as the overwhelming
consensus among state and federal courts alike, we now hold that due to the significant
constitutional rights that a criminal defendant waives in connection with the entry of a
guilty plea, 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
agreement will be construed against the State and in favor of the defendant.
Applying our holding to the case at bar, we find that the State should not be
permitted to benefit from its own lack of oversight and drafting deficiencies, particularly
in view of the significant liberty interests and constitutional rights waived by the
petitioner when he entered into the plea agreement. Instead, the State’s heightened
responsibility as the drafter of the subject plea agreement requires us to construe the
agreement’s ambiguities in the petitioner’s favor and against the State. In doing so, we
find that in exchange for the petitioner’s guilty plea to the felony offense of conspiracy to
commit a felony, the State agreed to dismiss the other charges then pending against the
18
(...continued)
favor of the defendant. Focusing on the defendant’s reasonable understanding also reflects
the proper constitutional focus on what induced the defendant to plead guilty.” (emphasis in
original)); U.S. v. Cachucha, 484 F.3d 1266, 1270 (10th Cir. 2007) (construing ambiguities
against government as drafter of document and interpreting agreement according to
defendant’s reasonable understanding of its terms); U.S. v. Jefferies, 908 F.2d 1520, 1523
(11th Cir.1990) (finding ambiguous plea agreements must be construed against government);
In re Sealed Case, 702 F.3d 59, 63 n.2 (D.C. Cir. 2012) (requiring ambiguity in plea
agreement to be construed against government as drafting party).
15
petitioner: Count 3 (delivery of a controlled substance) in Case No. 07-F-14; the
breaking and entering in Case No. 11-F-12; and the grand larceny in Case No. 11-F-13.
Our construction is supported by Mr. Simmons’s reference to Ms. Price’s “systematic
practice” to “plea bargain[] multiple felonies to single felony pleas[.]” Although Mr.
Simmons argues, and the circuit court ruled, that the State is permitted to prosecute the
petitioner on the dismissed charges because the plea agreement does not contain the
words “with prejudice,” we disagree. Indeed, it would defy logic to conclude that the
petitioner agreed to plead guilty to a felony in exchange for the State’s promise to
forego–only temporarily–its prosecution of him on the other pending charges. This is
particularly true in the absence of any evidence before us to the contrary.19 We consider
the absence of these words to be yet another deficiency in the drafting of the plea
agreement under the facts and circumstances of this case and, under our ruling herein, any
resulting ambiguity in this regard is required to be construed in the petitioner’s favor and
against the State.
In a similar vein, we further find that Mr. Simmons is bound by his
predecessor’s plea agreement. Although he contends there has been a “changing of the
guard” in the prosecutor’s office, we have long held that “‘[a] prosecuting attorney or his
successor is bound to the terms of a plea agreement once the defendant enters a plea of
19
Mr. Simmons offers only his disapproval of his predecessor’s decision in this regard,
which does not constitute evidence.
16
guilty or otherwise acts to his substantial detriment in reliance thereon.’ Syllabus, State
ex rel. Gray v. McClure, 161 W.Va. 488, 242 S.E.2d 704 (1978).” Syl. Pt. 2, State v.
Palmer, 206 W.Va. 306, 524 S.E.2d 661 (1999); see also State v. Spade, 225 W.Va. 649,
695 S.E.2d 879 (2010); State v. Cook, 184 W.Va. 625, 403 S.E.2d 27 (1991); Sellers v.
Broadwater, 176 W.Va. 232, 342 S.E.2d 198 (1986). Moreover, “[w]hen a defendant
enters into a valid plea agreement with the State that is accepted by the trial court, an
enforceable ‘right’ inures to both the State and the defendant not to have the terms of the
plea agreement breached by either party.” Syl. Pt. 4, State v. Myers, 204 W.Va. 449, 513
S.E.2d 676 (1998).20 Consequently, because the subject plea agreement was accepted by
the circuit court and the petitioner fulfilled his part of the plea agreement, Mr. Simmons
cannot now breach that agreement under the guise of Ms. Price’s alleged general
ineptitude during her tenure as prosecutor.
Finally, we turn to the matter of the extraordinary relief being sought by the
petitioner and conclude that a writ of prohibition is appropriate under the factors
enumerated in Mazzone. Syl. Pt. 2, 214 W.Va. at 148, 587 S.E.2d at 124. We find that
the circuit court exceeded its legitimate authority in allowing the instant prosecution to
proceed through its denial of the petitioner’s motion to quash and seeking specific
performance of the subject plea agreement, as reflected in its order entered on August 5,
20
Mr. Simmons does not challenge the validity of the plea agreement; he simply has
a different interpretation of its terms.
17
2013.21
IV. Conclusion
For the foregoing reasons, we find that the petitioner is entitled to relief in
prohibition and that immediate relief from this Court is appropriate given his current
custodial incarceration. Accordingly, the circuit court’s August 5, 2013, order denying
the petitioner’s motion to quash and for specific performance is vacated and the circuit
court is instructed to enter an order dismissing Case No. 13-F-06 with prejudice. The
circuit court is further instructed to ascertain whether the petitioner’s present
incarceration is occasioned solely by the indictment in Case No. 13-F-06 and, if so, to
enter an order discharging the petitioner from custody. The mandate of this Court shall
issue forthwith.
Writ granted.
21
We acknowledge that the withdrawal of a guilty plea can be an appropriate remedy
for the State’s breach of a plea agreement. Here, however, specific performance of the
agreement is warranted where the petitioner cannot be restored to the position he occupied
prior to the plea agreement. See Syl. Pt. 3, State v. Conley, 168 W.Va. 694, 285 S.E.2d 454
(1981) (“‘When a court cannot restore a defendant to his position before a plea bargain was
performed by him and breached by the state, he is entitled to specific performance of the
bargain by the state.’ Brooks v. Narick, 161 W.Va. 415, 243 S.E.2d 841 (1978).”).
18