IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
__________
FILED
No. 17-0208 June 1, 2018
___________ released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
January 2018 Term OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Respondent
v.
GLEN EARNEST BLACKA,
Petitioner
_____________________________________________________
Appeal from the Circuit Court of Mineral County
The Honorable Lynn A. Nelson, Judge
Civil Action No. 15-F-86
VACATED AND REMANDED
_______________________________________________________
Submitted: May 9, 2018
Filed: June 1, 2018
Ramon Rozas III, Esq. Patrick Morrisey, Esq.
Rozas Law Office, LLC Attorney General
Cumberland, Maryland Shannon Frederick Kiser, Esq.
Counsel for Petitioner Assistant Attorney General
Mary M. Downey, Esq.
Assistant Attorney General
Charleston, West Virginia
Counsel for the State
CHIEF JUSTICE WORKMAN delivered the Opinion of the Court
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. “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).
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3. “Whenever the State violates a sentencing neutrality provision of a plea
agreement, the violation seriously affects the fairness, integrity and public reputation of the
proceeding.” Syl. Pt. 8, State v. Myers, 204 W.Va. 449, 513 S.E.2d 676 (1998).
4. “When a plea agreement has been breached by the State, it is the province
of this Court, or the trial court in the first instance, and not the defendant, to decide whether
to grant specific performance of the plea agreement or permit withdrawal of the guilty plea.”
Syl. Pt. 9, State v. Myers, 204 W.Va. 449, 513 S.E.2d 676 (1998).
ii
Workman, Chief Justice:
Glen Earnest Blacka (hereinafter “the petitioner”) appeals an order of the
Circuit Court of Mineral County, West Virginia, sentencing him to ten to twenty years for
each of three sexual abuse convictions, with the sentences to be served consecutively.
Pursuant to a plea agreement, the State of West Virginia (hereinafter “the State”) agreed to
remain silent at sentencing; however, during the sentencing hearing, the State ultimately
recommended to the circuit court that consecutive sentences be imposed. Upon review of
the appendix record, arguments of counsel, and applicable precedent, this Court vacates the
sentencing order and remands for further proceedings consistent with this opinion.
I. Factual and Procedural History
On May 4, 2015, the Mineral County Grand Jury returned an indictment
charging the petitioner with multiple counts of sexual assault, incest, and sexual abuse
inflicted upon his three step-daughters. The petitioner pled guilty to three counts of the
felony offense of sexual abuse by a parent, guardian, or custodian on October 4, 2016.
Pursuant to a plea agreement, the State agreed to dismiss the remaining charges and “remain
silent on a recommendation at sentencing.”
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Despite its agreement to remain silent, the State recommended the imposition
of consecutive sentences during a February 13, 2017, sentencing hearing. The following
exchange occurred at that hearing:
MR. PANCAKE [Prosecuting Attorney]: And the State is of the
opinion that Mr. --
MR. ROZAS [Petitioner’s Attorney]: Objection.
THE COURT: About?
MR. ROZAS: With the plea agreement, he’s not allowed to
express an opinion, Your Honor. He was going to remain silent
at sentencing.
MR. PANCAKE: But –
THE COURT: Well, he can comment on what he said. He’s
not making any recommendations.
MR. PANCAKE: Right. I’m just –
MR. ROZAS: Okay, Your Honor, as long as he doesn’t make
a recommendation as whether he thinks probation is appropriate
or not or what the sentence should be.
THE COURT: All right. Do you have anything else, Mr.
Pancake.
MR. PANCAKE: Well, just a couple comments, Judge. In the
[c]ourt system, we see heinous cases. And they unfortunately
occur, and they occur an often – a quite often amount for those
that are in the legal system. I do believe that this is one of the
more heinous cases that we’ve come across in recent years,
Judge.
The [c]ourt has heard comments from the victims in this case –
which I won’t comment any further on those. I will not make
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any further comments on the case. What the State would
recommend, though, however, Judge, is based upon what has
occurred –
MR. ROZAS: Objection.
THE COURT: I have an objection. Go ahead, Mr. Rozas. You
said you had some arguments.
MR. ROZAS: Thank you.
THE COURT: You agreed to stand silent, I’ll listen to his
argument.
MR. PANCAKE: I was just going to say – recommend that they
run consecutive and not concurrent.
MR. ROZAS: Objection, Your Honor.
THE COURT: Okay, I’m not listening to what the State said
there.
MR. ROZAS: Thank you, Your Honor.
On February 22, 2017, the circuit court imposed consecutive sentences of ten
to twenty years for each count and remarked upon “a lot of rumors and speculations” about
things occurring “up in Blackaville.” The petitioner appeals, contending the State breached
the plea agreement by failing to remain silent at sentencing and he should have the right to
elect between withdrawing his guilty plea or having a new trial judge sentence him. He
further asserts that the circuit court’s comments regarding rumors and speculation constitute
reversible error. Based upon this Court’s decision to vacate the sentencing order and remand
on the issue of the breach of the plea agreement, we do not address the petitioner’s
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assignment of error regarding the circuit court’s allegedly inappropriate reliance upon
innuendo and rumors.
II. Standard of Review
In syllabus point one of State v. Wilson, 237 W.Va. 288, 787 S.E.2d 559
(2016), this Court explained the standard of review for matters involving an alleged breach
of a plea agreement:
“‘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).” Syllabus point 1, State v. Shrader, 234 W.Va. 381, 765
S.E.2d 270 (2014).
Cognizant of that dual approach as our standard of review, we address the contentions of the
parties.
III. Discussion
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The petitioner argues that the State breached the plea agreement by failing to
remain silent at sentencing and that he consequently is entitled to either specific performance
of the agreement before a different sentencing judge or withdrawal of the guilty plea. This
Court has been unequivocal in its commitment to the inviolability of plea agreements,
recognizing that “[b]ecause a plea agreement requires a defendant to waive fundamental
rights, we are compelled to hold prosecutors and courts to the most meticulous standards of
both promise and performance.” Brewer, 195 W.Va. at 192, 465 S.E.2d at 192; see also
Syllabus, State ex rel. Gray v. McClure, 161 W.Va. 488, 242 S.E.2d 704 (1978) (“A
prosecuting attorney or his successor is bound to the terms of a plea agreement once the
defendant enters into a plea of guilty or otherwise acts to his substantial detriment in reliance
thereon.”). In syllabus point four of State v. Myers, 204 W.Va. 449, 513 S.E.2d 676 (1998),
this Court again emphasized the significance of a plea agreement between a defendant and
the State and held: “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.” Syllabus point eight
of Myers continued the exposition upon the importance of a plea agreement, providing:
“Whenever the State violates a sentencing neutrality provision of a plea agreement, the
violation seriously affects the fairness, integrity and public reputation of the proceeding.”
With specific reference to the failure of the State to remain silent after
promising to do so, this Court observed that a plea agreement may be breached “where the
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State, after having agreed to remain neutral as to the sentence to be imposed, fails to do so.”
Duncil v. Kaufman, 183 W.Va. 175, 183, 394 S.E.2d 870, 878 (1990). Engaging in an
illuminating analysis of plea agreement breaches in Santobello v. New York, 404 U.S. 257
(1971), the United States Supreme Court found that the State had breached its agreement to
remain silent at the defendant’s sentencing and explained “when 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.” Id. at 262. As in
the present case, the State in Santobello asserted that the breach did not affect the judge’s
decision regarding the defendant’s ultimate sentence and that the sentence should
consequently not be disturbed. The United States Supreme Court adamantly disagreed,
stating:
[The sentencing judge] stated that the prosecutor’s
recommendation did not influence him and we have no reason
to doubt that. Nevertheless, we conclude that the interests of
justice and appropriate recognition of the duties of the
prosecution in relation to promises made in the negotiation of
pleas of guilty will be best served by remanding the case to the
state court for further consideration. . . . We emphasize that this
is in no sense to question the fairness of the sentencing judge;
the fault here rests on the prosecutor, not on the sentencing
judge.
Id. 262-63 (emphasis supplied).
Based upon that incisive reasoning, we find no merit to the State’s assertion
in the present case that the sentence should remain undisturbed simply because the circuit
6
court indicated that it was “not listening” to the prosecutor’s argument about consecutive
sentencing. See also United States v. McCray, 849 F.2d 304, 305-06 (8th Cir. 1988) ( “The
fact that the district court stated that the government’s remark did not influence its decision
does not ameliorate the government’s breach.”). The State in this case further argues that any
breach is immaterial and did not contribute to the sentence imposed, thereby essentially
constituting harmless error, if error at all. In Myers,1 this Court examined the requirement
for the State “to prove beyond a reasonable doubt that its breach of the plea agreement did
not prejudice the outcome of the proceeding.” 204 W.Va. at 463, 513 S.E.2d at 690. We
concluded that “[m]erely showing that the trial court would have sentenced a defendant upon
the same terms, even without such a breach, will not satisfy the State’s burden.” Id.
This conclusion is entirely consistent with the analysis in State v. Urista, 293
P.3d 738 (Kan. 2013). In that case, the Supreme Court of Kansas premised its holdings upon
the principle that a defendant is denied due process when a plea agreement is breached by
the State’s failure to stand silent at sentencing. “This is true even if the sentencing judge was
not influenced by the State’s presentation at sentencing.” Id. at 751.
1
Unlike the situation in the present case, the defendant in Myers had not objected to
the breach; thus, this Court was required to engage in an evaluation of the plain error doctrine
and its applicability. See Myers, 204 W.Va. at 455, 513 S.E.2d at 682. Although the plain
error evaluation is not necessary in the present case due to the petitioner’s timely objection,
the ultimate discussion in Myers with regard to the harmless error rule is applicable to our
analysis of this case.
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Accordingly, if the State breaches its plea agreement promise —
and the defendant raises a timely objection to the breach —
such a breach will constitute harmless error only if a court can
say beyond a reasonable doubt that the State’s promise had little,
if any, influence on the defendant’s decision to enter into the
plea agreement.
Id. (citations omitted); see also Puckett v. U.S., 556 U.S. 129, 140 (2009) (discussing
application of harmless error principles to breach of plea agreement).
Similarly, in State v. Birge, 638 N.W.2d 529 (Neb. 2002), the Supreme Court
of Nebraska analyzed the reasoning of Santobello and explained: “[O]nce the State has
violated the plea agreement by failing to remain silent at sentencing, the violation cannot be
cured either by the prosecutor’s offer to withdraw the comments or by the trial court’s
statement that it will not be influenced by the prosecutor’s comments in imposing sentence.”
Id. at 535-36. “Instead, relief must be afforded by either withdrawal of the plea or specific
performance of the plea agreement in the form of sentencing before a different judge.” Id.
at 536.
With specific regard to the remedy for the State’s breach of a plea agreement,
this Court has explained that “[t]here are two possible remedies for a broken plea agreement
— specific performance of the plea agreement or permitting the defendant to withdraw his
plea.” Brewer, 195 W. Va. at 189, 465 S.E.2d at 189, syl. pt 8. The ultimate decision of
which alternative is most appropriate is to be made by this Court, rather than a defendant.
8
In syllabus point nine of Myers, this Court explained: “When a plea agreement has been
breached by the State, it is the province of this Court, or the trial court in the first instance,
and not the defendant, to decide whether to grant specific performance of the plea agreement
or permit withdrawal of the guilty plea.” See also McCray, 849 F.2d 304, 305-06 (8th Cir.
1988) (“When the government breaches its promise to remain silent at sentencing,
resentencing is required.”); State v. Peterson, 293 P.3d 730, 738 (Kan. 2013) (holding that
resentencing before different judge remedy for State’s breach of plea agreement); Brewer,
195 W.Va. at 198 n.18, 465 S.E.2d at 198 n.18 (“While the choice of remedy is normally left
to the discretion of the sentencing court, see Santobello, 404 U.S. at 263, 92 S.Ct. at 499, 30
L.Ed.2d at 433, this Court has repeatedly expressed a preference for specific performance of
the agreement rather than vacating the plea.”).
As emphasized in Urista, the “decision to direct a new sentencing hearing
before a different judge in no way reflects on the district court judge who originally
sentenced [the defendant].” 293 P.3d at 751. It is not the judge who has committed the
violation. “The error here rests squarely with the State. The appearance of judicial neutrality
will be best served if the new sentencing hearing is conducted by a different judge.” Id. As
this Court articulated in Myers, decisions regarding plea bargain violations must be guided
by the “scrupulous standard applicable to prosecutors and courts throughout the acceptance
and implementation of the plea agreement.” 204 W.Va. at 458, 513 S.E.2d at 685. The plea
agreement “phase of criminal justice, and the adjudicative element inherent in accepting a
9
plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due
in the circumstances.” Santobello, 404 U.S. at 262.
This Court finds that the appropriate remedy for the breach of the plea
agreement in this case is specific performance of the agreement in a new sentencing hearing
before a different judge. We further emphasize the atrociousness of the prosecutor’s actions
in this case. Despite the multiple objections by counsel for the petitioner, the prosecutor
insisted upon injecting comments clearly prohibited by the plea agreement. This is conduct
incongruous with the duties of an officer of the court. This Court has referenced a
“prosecutor as an officer of the Court” in several contexts. State v. Schlatman, 233 W.Va.
84, 90, 755 S.E.2d 1, 7 (2014). We have delineated “the prosecutor’s duty to set a tone of
fairness and impartiality, and while he may and should vigorously pursue the State’s case,
in so doing he must not abandon the quasi-judicial role with which he is cloaked under the
law.” State v. Boyd, 160 W.Va. 234, 242-43, 233 S.E.2d 710, 717 (1977); see also State v.
Wilson, 6 P.3d 637, 639 (Wash. Ct. App. 2000) (“Plea agreements concern fundamental
rights of the accused, and invoke due process considerations that require a prosecutor to
adhere to the terms of the agreement.” (footnote omitted)); State v. Tourtellotte, 564 P.2d
799, 802 (Wash. 1977) (“If a defendant cannot rely upon an agreement made and accepted
in open court, the fairness of the entire criminal justice system would be thrown into
question.”).
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Given the prosecutor’s unyielding and improper persistence in the prior
sentencing hearing, it would be inappropriate to permit that prosecutor to participate in the
sentencing hearing upon remand. Consequently, another prosecutor should manage this
sentencing matter upon remand.
IV. Conclusion
Based upon the foregoing, this Court vacates the order sentencing the petitioner
and remands this matter for the appointment of a new judge to sentence the petitioner
pursuant to his guilty plea.
Vacated and Remanded.
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