IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2014 Term
FILED
October 30, 2014
No. 13-1266 released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent
v.
VIRGIL EUGENE SHRADER,
Defendant Below, Petitioner
Appeal from the Circuit Court of Mercer County
The Honorable David W. Knight, Special Judge
Criminal Action No. 08-F-117
REVERSED AND REMANDED
Submitted: October 1, 2014
Filed: October 30, 2014
Derrick W. Lefler, Esq. Patrick Morrisey, Esq.
Gibson, Lefler &Associates Attorney General
Princeton, West Virginia Laura Young, Esq.
Counsel for Petitioner Deputy Attorney General
Christopher S. Dodrill
Assistant Attorney General
Charleston, West Virginia
Counsel for Respondent
JUSTICE WORKMAN delivered the Opinion of the Court.
JUSTICES BENJAMIN and LOUGHRY dissent and reserve the right to write separate
opinions.
SYLLABUS BY THE COURT
1. “Cases 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).
2. “There is no absolute right under either the West Virginia or the United
States Constitutions to plea bargain. Therefore, a circuit court does not have to accept every
constitutionally valid guilty plea merely because a defendant wishes to so plead.” Syl. Pt. 2,
State ex rel. Brewer v. Starcher, 195 W. Va. 185, 465 S.E.2d 185 (1995).
ii
3. “[T]he decision whether to accept or reject a plea agreement is vested
almost exclusively with the circuit court.” Syl. Pt. 3, in part, State ex rel. Brewer v. Starcher,
195 W. Va. 185, 465 S.E.2d 185 (1995).
4. “‘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).
5. “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.” Syl. Pt 3, State ex rel. Thompson v. Pomponio, 233 W. Va. 212, 757 S.E.2d 636
(2014).
6. “There are two possible remedies for a broken plea agreement – specific
performance of the plea agreement or permitting the defendant to withdraw his plea. A
major factor in choosing the appropriate remedy is the prejudice caused to the defendant.”
Syl. Pt. 8, State ex rel. Brewer v. Starcher, 195 W. Va. 185, 465 S.E.2d 185 (1995).
iii
Workman, Justice:
This case is before the Court upon the Petitioner’s, Virgil Eugene Shrader’s,
appeal of the November 15, 2013, Order of the Circuit Court of Mercer County, West
Virginia, which rescinded the Petitioner’s probationary period due to a violation of one of
the conditions and sentenced the Petitioner to a term of one to five years in the penitentiary
for first degree sexual abuse. After considering the parties’ briefs and oral arguments, the
appendix record, and all other matters before the Court, we find that the circuit court erred
in rescinding the Petitioner’s probationary period based upon its determination that the
Petitioner failed to comply with the conditions of his probation.1 We remand the case for
further proceedings in which the terms of the plea agreement entered into between the parties
and accepted by the circuit court are specifically performed, including allowing the Petitioner
to withdraw his nolo contendere plea, requiring the State to dismiss all the charges against
the Petitioner in Case No. 08-F-117, as well as the entry of an order discharging the
Petitioner from custody.
1
Because we are reversing the circuit court, we decline to address the Petitioner’s
assignment of error regarding denial of credit for time served on home confinement.
1
I. Facts and Proceedings Below
The Petitioner was arrested on May 28, 2007,2 and indicted on February 8,
2009, for twelve counts of sexual assault, sexual abuse and sexual abuse by a custodian or
person of position of trust to a child.3
The Petitioner and the State entered into a written plea agreement,4 in which
the Petitioner agreed to enter a nolo contendere or no contest plea5 to one count of sexual
2
The Petitioner was released on bail and was placed on home confinement as a
condition of his bail. He spent 630 days, almost twenty-one months, on home confinement.
3
An agreed order was entered on February 12, 2009, dismissing six counts in the
indictment. Three of the counts pertaining to sexual abuse by a person of trust were
dismissed because the offenses charged could have taken place before the effective date of
the statute. The counts pertaining to sexual assault in the first degree were dismissed because
the alleged victim told police and a child protective services worker that there was no
penetration or contact between the sex organs of the defendant and the accuser, there was no
oral contact between the two and there was no other allegation relating to sexual intercourse
as defined by statute. Six counts of first degree sexual abuse remained.
4
The first agreement was dated February 17, 2009; however, that agreement was
revised three days later by letter dated February 20, 2009, to clarify that the Petitioner did
not have to register as a sexual offender unless or until a final adjudication of guilty under
the plea agreement.
5
The plea of nolo contendere, which literally means “‘I do not wish to contend[,]’ .
. . has its origin in the early English common law. It constitutes an implied confession of
guilt.” State ex rel. Clark v. Adams, 144 W. Va. 771, 778, 111 S.E.2d 336, 340 (1959), cert
denied, 463 U.S. 807 (1960); see also Myers v. Frazier, 173 W. Va. 658, 665, n.10, 319
S.E.2d 782, 790 n.10 (1984) . The Petitioner also refers to the plea in this case as a “best
interest” plea, but in effect it was at least partially a Kennedy plea, which is set forth in
syllabus point one of Kennedy v. Frazier, 178 W. Va. 10, 357 S.E.2d 43 (1987). In Kennedy,
we held that “[a]n accused may voluntarily, knowingly and understandingly consent to the
(continued...)
2
abuse in the first degree.6 In exchange for this plea, the State agreed to dismiss all the
remaining counts in the indictment. Further, the Petitioner and the State agreed that “the
Court shall defer any adjudication of guilt for a period of time and under such conditions as
may be set by the Court which shall include[,] but not be limited to[,] . . .” the Petitioner
undergoing “a sexual offender psychiatric evaluation by an appropriate mental health
professional selected or approved by the State[,]” and the Petitioner abiding “by such
treatment recommendations as may be contained in said evaluation[.]”7 According to the
terms of the agreement, “[i]f the Defendant successfully completes the terms and conditions
. . . then the State agrees to join the Defendant in a motion to withdraw this plea and dismiss
all charges in the subject indictment against him.” If, however, the Petitioner failed to
5
(...continued)
imposition of a prison sentence even though he is unwilling to admit participation in the
crime, if he intelligently concludes that his interests require a guilty plea and the record
supports the conclusion that a jury could convict him.” Id. The term “best interest plea”
appears only one other time in West Virginia case law and that case also arose in Mercer
County, leading us to assume that this is a local term of art for a Kennedy plea.
6
The State represented that the plea, which was entered into with the Petitioner, was
with the consent of the victim and the victim’s family.
7
Other conditions in the revised plea agreement included:
(c) The Defendant will have no contact with his accuser and
her family. The Defendant is not restricted from contact with
his own children, grandchildren, and anyone else other than the
accuser and her family;
(d) The Court’s standard conditions and terms for probation:
The Defendant is not required at this time to enter a specific
sexual offender probationary contract with the Probation
Officer.
3
“successfully complete the terms and conditions” of the agreement, “ the Court will schedule
a presentence investigation of Defendant and sentence him accordingly.” Thus, the terms of
the agreement provided that “[i]f the Defendant does not successfully complete the terms of
this agreement and is adjudged guilty, then he will be subject to register as a ‘sexual
offender.’” Further, the agreement provided that “the Defendant’s adjudication of guilt or
no contest under this plea will be deferred until the Defendant’s successful completion of the
terms or the Court’s determination that Defendant violated the terms and conditions . . .
which[ever] occurs first.” Finally, the agreement provided that the Petitioner did not have
to register as a “sexual offender” unless and until a final adjudication of guilty under this
plea.8
On February 17, 2009, the circuit court held a plea hearing. During the
hearing, the Petitioner stated that he was pleading no contest to one count of first degree
sexual abuse. The circuit court confirmed that it was going to “defer any adjudication of
guilt.”
On February 27, 2009, the circuit court held a status hearing in which two
issues were addressed. First, the circuit court found that the Petitioner would not have to
8
According to the prosecutor, the plea agreement “was the best thing for the State, I
can tell you with certainty. I very rarely enter into plea bargains . . . .”
4
register as a sex offender because he had not yet been adjudicated guilty. Second, the circuit
court was presented with a sexual offender psychiatric evaluation by a mental health provider
who recommended that the Petitioner receive treatment. A problem had arisen, however,
regarding the treatment. To that end, the probation officer in charge of supervising the
Petitioner had scheduled an appointment for him with Jason Newsome, who was director of
clinical services at Family Counseling Connection (hereinafter referred to as “the Day Report
Center”). Mr. Newsome was present at the status hearing. He told the circuit court that
while a conviction was not necessary to be considered for his treatment program, there had
to be some admission of guilt. According to Mr. Newsome, the Petitioner had denied that
he had committed any inappropriate sexual acts toward the alleged victim in the case. The
circuit court stated to the Petitioner’s counsel: “So your client basically is already in default.”
The Petitioner’s counsel disagreed. The prosecuting attorney also disagreed that the
Petitioner violated the conditions of the plea agreement. Instead, the prosecutor stated:
I feel very responsible, because I recommended Mr. Newsome,
believing that he could get – there are programs that– there are
programs where you do not have to admit, where you can go and
try – I think you found one in Abingdon [,Va.,] . . . . I just
thought Mr. Newsome was closer and recommended him. But,
I mean, I’m not insisting that this is the person he go to, just that
he be in a program.
The circuit court questioned whether the plea was appropriate, stating “if he wants to deny
it, [that] he hadn’t done anything wrong, maybe we ought to go all the way back and have
a trial.” The circuit court indicated that it “can’t accept a plea bargain agreement that carries
5
these things in it [referring to a treatment program] that he cannot abide by from the start and
he’s doomed to fail. I mean, that would be unfair of me to do that.” The circuit court then
allowed the parties time a couple of weeks “to determine what’s going to happen.”
On March 13, 2009, the circuit court re-visited the issue in a second plea
hearing. This hearing was necessitated by the revised plea agreement letter dated February
20, 2009. See supra note 4. During this hearing, the parties agreed upon and the circuit court
approved the Petitioner to undergo a sexual offender evaluation as well as treatment, if
recommended, with William Brezinski, M.A., a psychologist. The choice of Mr. Brezinski
was based upon him being able to treat the Petitioner without requiring that the Petitioner
admit guilt as a sex offender.
On June 9, 2009, there was another status hearing in which the parties informed
the circuit court that the Petitioner had undergone a sex offender evaluation by Mr. Brezinski
and had been in treatment with the psychologist since the evaluation. The circuit court, by
order dated the same day, provided that “the defendant continue his counseling with William
Brez[i]nski, M.A., until deemed unnecessary by said counselor.”
The Petitioner was treated by Mr. Brezinski for almost two years. During the
April 18, 2011, status hearing, the parties informed the circuit court the Petitioner had
6
completed the treatment recommended by Mr. Brezinski. The circuit court ultimately found,
based upon Mr. Brezinski’s report, that the Petitioner “ha[d] been fully compliant and had
completed his sexual offender counseling . . . in wholly satisfactory manner.” Based upon
his completion of this treatment, the Petitioner sought early release from the five-year period
of conditions imposed by the circuit court. The Petitioner’s probation officer told the court
that the Petitioner “has been compliant in reporting in to me.” Despite the successful
completion of treatment with Mr. Brezinski, the circuit court did not want to release the
Petitioner early from the conditions of his plea agreement.9
Consequently, the probation officer recommended placing the Petitioner back
into the sexual offender treatment program at the Day Report Center in Mercer County,
which was the same treatment program that previously rejected the Petitioner at the outset
9
The other conditions in the revised plea agreement were set forth supra note 7.
Additionally, in March 13, 2009, order, the circuit court set forth the following conditions,
other than the treatment condition, for the Petitioner to abide by:
2) That the defendant obey all laws;
3) That the defendant not consume alcohol;
4) That the defendant report monthly to his probation officer and
personally reschedule his appointment if he cannot make such
appointment;
5) That the defendant provide all information to his probation
officer, including his address, telephone number, medications,
and provide any changes of same.
6) That the defendant abide by the normal terms and conditions
of probation although he is not on a probationary period[.]
7
due to his refusal to admit that he was a sex offender. The probation officer reminded the
circuit court that they tried to put him at the Day Report Center, but the Petitioner “was
offended by the paperwork that indicated he was a sex offender.” The circuit court indicated
that it did not “care if he’s offended or not. I’ll put him over there. . . . [L]et’s put him back
over there for a year and I’ll look at it again after a year.” The circuit court further cautioned
the Petitioner that he needs to “look in the mirror and be honest with yourself so we can
proceed in this matter.[,]” and that this proceeding “will not go away until we get through
with five years.”
The probation officer also raised issues regarding the use of a polygraph in the
treatment program. The prosecutor10 represented that the polygraph test was “not used to
go back and – determine whether he was guilty of sexual contact with . . . [the child] but
rather as one to – as a deterrent for future contact to find out if there’s been anything since.”
The circuit court also assured the Petitioner that if he failed a polygraph, the court would not
automatically revoke his probationary status. The circuit court indicated that it would
probably have an evidentiary hearing so that “we could hear how it was conducted, what was
said and what the responses were.”11
10
The assistant prosecuting attorney originally assigned to the Petitioner’s case retired
at some point during the proceedings below.
11
The circuit court entered an order dated April 29, 2011, regarding the change in
treatment.
8
The Petitioner participated in treatment at the Day Report Center with Rance
Berry, a therapist, from April of 2011, when the Petitioner stopped treating with Mr.
Brezinski, until August of 2013. The Petitioner met Mr. Berry once a week during this time.
Notwithstanding this treatment, at a July 11, 2013, status hearing, with the five-year period
for the conditions set to expire in February of 2014, the State requested the Court to find that
the Petitioner had violated the conditions of his deferred adjudication because he had not
“successfully” completed treatment. The State argued that “he’s not complied with his
therapy by failing to acknowledge that he did anything wrong. He can’t move forward in that
part of the treatment.” The State took this position despite being reminded by the Petitioner’s
counsel that the Petitioner “did enter a best interest plea, by which he wasn’t required to
admit any responsibility.” Further, the Petitioner’s counsel argued that “but for . . . [the
Petitioner’s] results on the polygraph12 [referring to the Petitioner failing a polygraph test]
he’s been a model probationer. He’s completed all the terms and conditions of his
probation.” Nonetheless, the circuit court focused upon the Petitioner’s failure to pass the
polygraph. It was this failure that was inextricably intertwined with the Petitioner’s failure
to acknowledge any wrongdoing that ultimately caused his inability to “successfully”
complete the third treatment program. As the circuit court found, “he did not meet one of
the conditions of probation because he can’t get a psychologist in here to say that he’s
12
There was no testimony or evidence regarding the questions that the Petitioner failed
on during the polygraph.
9
successfully completed a sexual [offender counseling].” As the circuit court indicated in its
July 12, 2013, order: “The Court expresses its concern regarding defendant’s failure to
actively participate in sexual offender therapy behavior by not acknowledging that he did
anything wrong pursuant to the Court’s Order of April 28, 2011.” The Court then set the
date of October 1, 2013,13 to proceed “upon defendant’s adjudication.”
On November 1, 2013, the circuit court conducted an “adjudication” hearing.
During this hearing, the Petitioner’s counsel represented to the court that the Petitioner had
acknowledged responsibility for the crime with which he was charged. The circuit court,
however, found the admission to be insincere and only done because the Petitioner was
facing imprisonment. The probation officer stated that she had no problems with the
Petitioner as “[h]e comes in and does his report like he’s suppose to[.]” Despite his
compliance, the probation officer informed the circuit court that “one of the conditions of his
probation was that he successfully complete the sex offender treatment and he hasn’t done
that because he refused to admit guilt until just a few months ago14 and now his probation
time is almost up.” Mr. Berry, the Petitioner’s therapist, testified that his treatment stopped
13
The hearing was continued to November 1, 2013.
14
Mr. Berry testified that the Petitioner admitted guilt in August prior to his treatment
being terminated.
10
after over two years,15 because of the Petitioner’s “refusal to accept responsibility for his
actions.” The circuit court then accepted the plea previously made, rescinded his probation,16
adjudged him guilty and sentenced him from one to five years in the penitentiary, “due to
defendant’s non-compliance of conditions of his probation, including defendant’s failure to
abide by sex offender psychiatric treatment recommendations and his prior failure to admit
to sexual abuse.” Focusing on the Petitioner’s failure to admit guilt, the circuit court stated:
15
The Petitioner had undergone two years of treatment with Mr. Brezinski from March
11, 2009, until March 22, 2011, followed by over two more years of treatment with Mr. Berry
at the Day Report Center from April 11, 2011, until August of 2013.
16
The Petitioner assigned as error the failure to receive notice of the probation
revocation pursuant to our holding syllabus two of State ex rel. Jones v. Trent, 200 W. Va.
538, 490 S.E.2d 357 (1997) (“The final revocation proceeding required by the due process
clause of the Fourteenth Amendment and necessitated by W. Va. Code, 62-12-10, as
amended, must accord an accused with the following requisite minimal procedural
protections: (1) written notice of the claimed violations of probation; (2) disclosure to the
probationer of evidence against him; (3) opportunity to be heard in person and to present
witnesses and documentary evidence; (4) the right to confront and cross-examine witnesses
(unless the hearing officer specifically finds good cause for not allowing confrontation); (5)
a ‘neutral and detached’ hearing officer; (6) a written statement by the fact finders as to the
evidence relied upon and reasons for revocation of probation.’ Syl. Pt. 12, Louk v. Haynes,
159 W. Va. 482, 223 S.E.2d 780 (1976)”). The record, however, demonstrates that in an
order dated July 12, 2013, the Petitioner was notified that “[t]he Court expresses its concern
regarding defendant’s failure to actively participate in sexual offender therapy behavior by
not acknowledging that he did anything wrong pursuant to the Court’s Order of April 28,
2011.” Further, the circuit court set a hearing for October 1, 2013, “at which time the Court
will proceed upon defendant’s adjudication.” At the hearing, which was continued to
November 1, 2013, the circuit court gave the Petitioner an opportunity to be heard in person
and to present witnesses and documentary evidence, as well as the to confront and
cross-examine witnesses. Consequently, we find no merit to the Petitioner’s alleged error
on this issue.
11
This could have been taken care of long ago but you refused to
admit your actions. This admission [referring to the Petitioner’s
then recent admission of guilt] I think is a red herring. I think
you’re making this admission now just to stay out of jail. This
just needs to come to an end. We’ve tried to take care of this
now for almost five years and we’re still in it. We just need to
end it.
The circuit court further found that “[h]e wouldn’t admit to his actions, so therefore he
couldn’t be treated. As far as I’m concerned he lied under oath.” Even when the Petitioner’s
counsel reminded the circuit court that the Petitioner had entered a nolo
contendere/Kennedy17-type plea, the circuit court responded: “I don’t care what you call it,
when I took his plea, whether he said guilty or not, I presumed him guilty. That’s what a plea
of guilty is. I don’t care what you want to call it. It was a guilty plea and he didn’t comply.”
It is from the November 15, 2013, order memorializing the above-referenced rulings made
by the circuit court that the Petitioner now appeals.
II. Standard of Review
We review this case under the standard set forth in syllabus point one of State
ex rel. Brewer v. Starcher, 195 W. Va. 185, 465 S.E.2d 185 (1995):
Cases 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
17
See supra note 5.
12
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.
III. Discussion of Law
At the outset, we note that this case is a procedural quagmire because of the
manner in which the parties and the circuit court handled the Petitioner’s nolo contendere
plea. We caution prosecuting attorneys, defense attorneys and circuit courts that there are
procedures and requirements to be followed for various types of plea agreements, including
plea agreements containing conditions. For instance, Rule 11 of the West Virginia Rules of
Criminal Procedure provides for conditional pleas as follows:
With the approval of the court and the consent of the state, a
defendant may enter a conditional plea of guilty or nolo
contendere, reserving in writing the right, on appeal from the
judgment, to review of the adverse determination of any
specified pretrial motion. A defendant who prevails on appeal
shall be allowed to withdraw the plea.
Further, under West Virginia Code §§ 62-12-1 to -3 (2014), an individual can
enter a guilty plea and the circuit court can suspend “the impostion or execution of sentence”
and place the individual on probation with conditions. Id. § 62-12-3 (“Whenever, upon the
13
conviction of any person eligible for probation under the preceding section [§ 62-12-2], it
shall appear to the satisfaction of the court that the character of the offender and the
circumstances of the case indicate that he is not likely again to commit crime and that the
public good does not require that he be fined or imprisoned, the court, upon application or
of its own motion, may suspend the imposition or execution of sentence and release the
offender on probation for such period and upon such conditions as are provided by this
article . . . .”).
Lastly, under the pretrial diversion agreement statute, West Virginia Code §
61-11-22 (2014), a prosecuting attorney can enter into this type of agreement with an
individual, “under investigation or charged with an offense against the State of West
Virginia[.]” There are specific requirements contained within the statute that must be met
when entering into a pretrial diversion agreement and there are specific charges that preclude
an individual from being able to participate in this type of agreement. When a pretrial
diversion agreement is entered into between an individual and a prosecuting attorney, where
the person “has successfully complied with the terms of the agreement[,]” the person “is not
subject to prosecution for the offense or offense described in the agreement . . . unless the
agreement includes a provision that upon compliance the persons agrees to plead guilty or
nolo contendere to a specific related offense . . . .” Id. We also note that because the
Petitioner was charged with first degree sexual abuse, he would not have been eligible to
14
participate in a pretrial diversion agreement.
Using the foregoing rule and statutes, the parties could have worked out a plea
agreement which actually comported with law; however, the parties entered into the relevant
plea agreement and the circuit court accepted the agreement, which was aptly described by
the State’s attorney during oral argument as follows: “I can’t name this animal, whatever it
is.” Cobbling together a montage of each of the concepts referenced supra (Kennedy plea,
nolo contendere plea, pre-trial diversion, suspending sentence and imposing probation with
conditions), the process did not fully comport with any of them, and the work in this case,
all the way around, can only be characterized as sloppy. Because the parties failed to raise
any argument regarding the legal basis for this type of plea, we decline to address any issue
regarding the authority for the “conditional plea with deferred adjudication” that is before
the Court.
The determinative issue before the Court is whether the circuit court erred in
finding that the Petitioner violated the conditions imposed upon him as part of the plea
agreement he entered into in this case. The specific condition of the plea at issue concerns
the sexual offender counseling that the Petitioner underwent as a result of the agreement.
While the Petitioner maintains that he complied with every condition of the plea agreement,
the State argues that the Petitioner failed to “successfully complete the terms and conditions
15
of his agreement which included sexual offender treatment.”
Our analysis begins with the well-established law that “[t]here is no absolute
right under either the West Virginia or the United States Constitutions to plea bargain.
Therefore, a circuit court does not have to accept every constitutionally valid guilty plea [or
in this case nolo contendere plea] merely because a defendant wishes to so plead.” Brewer,
195 W. Va. at 188, 465 S.E.2d at 188, Syl. Pt. 2. “[T]he decision whether to accept or reject
a plea agreement is vested almost exclusively with the circuit court.” Id., Syl. Pt. 3, in part.
We also have recognized that “[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.” Id. at 192, 465 S.E.2d at 192.
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). We held in
Myers that “‘[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 an the defendant
not to have the terms of the plea agreement breached by either party.”18 Id. at 453, 513
18
However, a trial court cannot be bound by a plea agreement unless a specific
sentence is involved. In accordance with Rule 11(e)(1)(c) of the West Virginia Rules of
Criminal Procedure, a plea becomes binding when there is an agreement to a specific
(continued...)
16
S.E.2d at 680, Syl. Pt. 4; see also Syl. Pt. State ex rel. Thompson v. Pomponio, 233 W. Va.
212, 214, 757 S.E.2d 636, 638 (2014) (“‘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).”). Because a “plea agreement presupposes fundamental fairness,” this Court also
found that “‘[d]ue process concerns arise in the process of enforcing a plea agreement.’”
Myers, 204 W. Va. at 457 and 458, 513 S.E.2d at 684 and 685 (quoting State v. Smith, 207
Wis.2d 258, 558 N.W.2d 379, 385 (1997)).
Finally, this Court held that
[d]ue 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.
Thompson, 233 W. Va. at 214, 757 S.E.2d at 638, Syl. Pt. 3.
In the instant case, the record is clear that the only condition at issue is sexual
18
(...continued)
sentence. While a circuit court is under no obligation to accept a proposed binding plea
agreement, if the circuit court does accept a binding plea agreement, and “[i]f a sentence is
specified in a plea agreement pursuant to ... Rule 11(e)(1)(C), then a circuit court must apply
the sentence included in the agreement.” Brewer, 195 W. Va. at 193, 465 S.E.2d at 193.
17
offender treatment. The subject condition originally agreed upon by the parties and accepted
by the circuit court was twofold: 1) the Petitioner was to undergo “a sexual offender
psychiatric evaluation by an appropriate mental health professional selected or approved by
the State[;]” and, 2) the Petitioner was to abide “by such treatment recommendations as may
be contained in said evaluation[.]” The first treatment program that the State recommended
to the Petitioner rejected him from treatment outright due to his refusal to admit that he was
a sex offender. Many treatment programs require participants to acknowledge and accept
responsibility for their behaviors as part of the treatment process and a distinction must be
made between guilt as a matter of law and guilt as an acknowledgment of responsibility for
therapeutic purposes. Here, however, the State readily apologized on the record for its
recommendation to the first treatment program in light of the Petitioner’s plea, and agreed
to accept alternative treatment which did not require the Petitioner to acknowledge doing the
acts which formed the basis of the charge.
Consequently, shortly after the initial plea hearing, the parties agreed that the
Petitioner could undergo a sex offender evaluation and any recommended treatment with a
psychologist, Mr. Brezinksi. Mr. Brezinski did not require the Petitioner to admit that he was
a sexual offender for treatment purposes. The circuit court, by orders dated March 13, 2009,
and June 9, 2009, accepted this modification, ordering the Petitioner to treat with Mr.
Brezinski “until deemed unnecessary by said counselor.” (Emphasis added).
18
Two years later, Mr. Brezinski reported that the Petitioner had successfully
finished treatment. The circuit court, however, did not want to shorten the five-year
probationary period, so the probation officer recommended and the circuit court agreed to
send the Petitioner back to the first treatment program that had rejected him.19
Thus, the treatment condition became a moving target. The Petitioner was
ordered to undergo sexual offender treatment and in fact was in a treatment program and
compliant with treatment for well over four years.20
When the Petitioner was within months of completing the five-year period of
conditions, the State requested the Court to find that the Petitioner had violated the terms of
the plea agreement. The State argued that “he’s not complied with his therapy by failing to
acknowledge that he did anything wrong. He can’t move forward in that part of the
19
Nothing prevented the circuit court from accepting the Petitioner’s completion of
treatment with Mr. Brezinski, but still requiring the Petitioner to complete the five-year
period regarding the other conditions that had been imposed.
20
As set forth in the March 13, 2009, order, the Petitioner originally agreed “to attend
sexual offender counseling[]” for a period of five years. The circuit court, however, later
modified this condition in an order dated June 9, 2009, when the court allowed the Petitioner
to treat with Mr. Brezinski to “continuing his counseling with William Brez[i]nski, M.A.,
until deemed unnecessary by said counselor.” When Mr. Brezinski released the Petitioner
from his care, the circuit court, by order entered April 28, 2011, once again changed this
condition to requiring the Petitioner “to participate in the sexual offender evaluation and
counseling at the Mercer County Day Report Center under such conditions and frequency as
the Day Report Center counseling center staff deem appropriate . . . .”
19
treatment.” The State took this position despite being reminded by the Petitioner’s counsel
that the Petitioner “did enter a best interest plea, by which he wasn’t required to admit any
responsibility.” Further, the State maintained its position that the condition had been violated
despite the Petitioner’s therapist, Mr. Berry, testifying that prior to his treatment being
terminated, the Petitioner indeed did admit that he committed sexual abuse that was the
subject of the plea agreement. The circuit court, however, found the Petitioner’s admission
insincere and “believe[d] it’s just a way of keeping him out of jail.”
What is readily gleaned from our review of the appendix record is that the
circuit court, while accepting the Petitioner’s plea of nolo contendere, was conflicted by it
from the beginning. The circuit court made repeated references on the record that it was
treating his plea as a guilty plea, that “he’s in the twilight zone because he’s not willing –
even though he admitted in court, basically, by a no contest, he’s not willing to say to them
[referring to the first treatment program] that ‘I did anything wrong;’” and that the Petitioner
needed to be “truthful, whether you did this thing or not, because that’s what the conditions
of being in the sexual treatment . . . .” Instead of rejecting the nolo contendere plea, which
the circuit court was well within its discretion to do,21 the circuit court, as well as the State,
approved the agreement and allowed the Petitioner to plead nolo contendere and specifically
did not require him to admit any legal guilt to the crime charged. The circuit court, on the
21
See Brewer, 195 W. Va. at 188, 465 S.E.2d at 188, Syl. Pt. 3.
20
State’s recommendation, then ordered the Petitioner to enter a treatment program that
required him to admit guilt for therapeutic purposes. Had the circuit court insisted that the
Petitioner continue in the program when first recommended and follow its requirements, and
had the Petitioner refused to do so, the court could have found that the Petitioner failed to
live up to the court-ordered conditions. Instead, the court accepted his transfer to a treatment
program which did not require acknowledgment of the acts for therapeutic purposes.
Thereafter, Mr. Brezinski reported that the Petitioner was fully compliant with the treatment
program and that the program was complete. Further, despite the acceptance by the circuit
court of a plea wherein the Petitioner was not required to admit any legal or therapeutic guilt,
the Petitioner ultimately did admit to sexual abuse in his treatment program at the Day Report
Center and was still found by the circuit court to have violated the terms and conditions of
the plea agreement.
As previously mentioned, this Court has found that the Petitioner waived
significant constitutional rights in entering into the plea agreement with the State. See
Thompson, 233 W. Va. at 214, 757 S.E.2d at 638, Syl. Pt 3, in part. While the circuit court
was under no obligation to accept any of the proposed conditions set forth in the written plea
agreement and was not, in any way, bound by the terms of the plea agreement, the circuit
court did accept the condition, agreed upon by the parties, of allowing the Petitioner to
undergo a sexual offender treatment that did not require the Petitioner to admit guilt. See id.
21
at Syl. Pt. 4. Despite the existence of this agreement that the Petitioner undergo treatment
with Mr. Brezinksi “until deemed unnecessary by said counselor[,]” however, when the
counselor determined that the Petitioner had successfully completed treatment, the State and
the circuit court, not the Petitioner, breached the terms of the agreement by failing to accept
that this condition had been fulfilled. The State had an obligation to follow the agreement
it had agreed to insofar as it had accepted that the Petitioner did not have to enter a treatment
program that required him to acknowledge guilt. The State failed to meet its obligation under
the plea agreement in recommending that the Petitioner return to the Day Report Center.
Consequently, we find that the Petitioner fulfilled all the conditions of the plea
agreement at issue in this case and the circuit court erred in concluding that the conditions
were violated by the Petitioner. The circuit court should not have rescinded the plea
agreement and sentenced the Petitioner to the penitentiary for violating the conditions of the
plea agreement. “There are two possible remedies for a broken plea agreement – specific
performance of the plea agreement or permitting the defendant to withdraw his plea. A
major factor in choosing the appropriate remedy is the prejudice caused to the defendant.”
Brewer, 195 W. Va. at 189, 465 S.E.2d at 189, Syl. Pt. 8. This Petitioner has already served
two and one-half years on home confinement, nearly five years on a probationary status with
conditions and a year incarcerated, as well as participating in over four years of counseling.
22
We therefore reverse the decision of the circuit court and order the Petitioner
released from incarceration. The case is remanded for further proceedings in which specific
performance of the plea agreement is followed including entering an order in which the
Petitioner is found to have completed the conditions imposed under the plea agreement,
allowing the Petitioner to withdraw his plea and ordering the State to dismiss all the charges
in Case No. 08-F-117.22
IV. Conclusion
Based upon the foregoing, the decision of the Circuit Court of Mercer County
is reversed and the case is remanded for further proceedings consistent with this opinion.
Reversed and remanded.
22
This relief is based upon the terms of the plea agreement, which expressly provided
for the Petitioner to withdraw his plea and for the State to dismiss all the charges in the
indictment upon completion of the conditions imposed in the agreement.
23