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State of WV v. Wolfe

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 1997 Term

No. 23868
STATE OF WEST VIRGINIA,
Appellee

v.

DANNY WOLFE,
Appellant

Appeal from the Circuit Court of Cabell County
Honorable Dan O'Hanlon, Judge
Civil Action No. 95-F-19

AFFIRMED

Submitted: October 7, 1997
Filed: December 17, 1997  
Darrell V. McGraw, Jr.                     Gregory L. Ayers  
Attorney General                         Assistant Public Defender  
Scott E. Johnson                         Charleston, West Virginia  

Senior Assistant Attorney General            Attorney for Appellant Charleston, West Virginia Attorneys for Appellee
The Opinion of the Court was delivered PER CURIAM.
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. "Once a circuit court unconditionally accepts on the record a plea agreement under Rule 11(e)(1)(C) of the West Virginia Rules of Criminal Procedure, the circuit court is without authority to vacate the plea and order reinstatement of the original charge. Furthermore, after a defendant is sentenced on the record in open court, unilateral modification of the sentencing decision by the circuit court is not an option contemplated
within Rule 11(e)(1)(C)." Syl. Pt. 4, State ex rel. Brewer v. Starcher, 195 W.Va. 185, 465 S.E.2d 185 (1995).
Per Curiam:See footnote 1 1
        Danny Ray Wolfe (hereinafter "Appellant") appeals the Circuit Court of Cabell County's denial of probation following a plea of guilty to two counts of first degree sexual abuse. The Appellant contends that the lower court erred in failing to sentence him according to the terms of a binding plea agreement. We find that the lower court committed no reversible error in denying the requested probation, and we affirm.
I.        The Appellant was charged with three counts of first degree sexual abuse by making sexual contact with a girl younger than eleven years. Pursuant to a binding plea agreement signed on October 25, 1995, the Appellant pled guilty
to two counts of first degree sexual abuse.See footnote 2 2 The agreement further specified that the Appellant would receive two consecutive sentences of one to five years with the second sentence suspended and probated
only if the Appellant was accepted into a sexual abuse program. Pursuant to the guilty plea, the lower court sentenced the Appellant to the two consecutive sentences of one to five years.
         The procedures governing plea agreements are enumerated in Rule 11 of the West Virginia Rules of Criminal Procedure. Rule 11(e) provides, in pertinent part, as follows:
    (e) Plea Agreement Procedure.
        (1)
In General.--The attorney for the state and the attorney for the defendant or the defendant when acting pro se may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty, or nolo contendere to a charged offense or to a lesser or related offense, the attorney for the state will do any of the following:

            (A) Move for dismissal of other charges; or

            (B)
Make a recommendation or agree not to oppose the defendant's request, for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court; or

            (C) Agree that a specific sentence is the appropriate disposition of the case; or

            (D)
Agree not to seek additional indictments or information for other known offenses arising out of past transactions.


See State ex rel. Forbes v. Kaufman 185 W.Va. 72, 404 S.E.2d 763 (1991); State v. Guthrie, 173 W.Va. 290, 315 S.E.2d 397 (1984).
        Upon being accepted into the Appalachian Center for Training and Therapeutic Services (hereinafter "ACTTS"), the Appellant moved the lower court for probation on the second count. The lower court denied that motion, and on March 11, 1996, the Appellant filed a Rule 35 motion to correct sentence.See footnote 3 3 On April 3, 1996, the lower court held a hearing on the Rule 35 motion and found that ACTTS was "not the kind of sexual treatment program that I had in mind." The lower court reasoned that the program into which the Appellant was accepted was an alcohol abuse counseling program, was not a recognized sexual offender treatment program, and therefore did not satisfy the conditional requirements of the plea agreement through which the Appellant's second sentence would be suspended and probated only if the Appellant was accepted into a sexual abuse program.
II.
        The Appellant contends that the lower court's refusal to grant probation violated the plea agreement signed by the
Appellant and approved by the lower court. In State ex rel. Brewer v. Starcher, 195 W. Va. 185, 465 S.E.2d 185
(1995), we explained that a circuit court must sentence according to terms of an accepted binding plea agreement.
Otherwise, Rule 11 of the West Virginia Rules of Criminal Procedure and the Due Process Clause of the Constitution
are violated. Id. at 191, 465 S.E.2d at 191. In syllabus point one of Brewer, we explained our standard of review in
such matters as follows:
            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.
Syllabus point four of Brewer instructed:
            Once a circuit court unconditionally accepts on the record a plea agreement under Rule 11(e)(1)(C) of the West Virginia Rules of Criminal Procedure, the circuit court is without authority to vacate the plea and order reinstatement of the original charge. Furthermore, after a defendant is sentenced on the record in open court, unilateral modification of the
sentencing decision by the circuit court is not an option contemplated within Rule 11(e)(1)(C).
        The Appellant emphasizes that the underpinning of the counseling requirement is West Virginia Code

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