Christopher C. Quasebarth, Esq.
E. Barrat, Esq.
Assistant Prosecuting Attorney Martinsburg, West Virginia
Martinsburg, West Virginia Attorney for the Appellant
Attorney for the Appellee
JUSTICE STARCHER delivered the Opinion of the Court.
CHIEF JUSTICE MAYNARD dissents and reserves the right to file a dissenting opinion.
a criminal defendant and the prosecution reach a plea agreement, it is an abuse
of discretion for the circuit court to summarily refuse to consider the substantive
terms of the agreement solely because of the timing of the presentation of the
agreement to the court.
On appeal, Evan Sears (Sears)
alleges that the judge of the Circuit Court of Berkeley County erred by refusing
to examine the substance of a plea agreement reached between Sears and the county
prosecutor, electing instead to follow a local rule prohibiting
plea agreements submitted after pretrial hearings. For reasons explained in
this opinion, we reverse the decision of the circuit court and remand this matter
for further proceedings.
Following this conversation, counsel
for Sears and the prosecuting attorneySee
footnote 5 5 appeared before the circuit court judge, and a brief
hearing was conducted concerning the plea agreement. At the beginning of the hearing,
the judge asked why the defendant was not present. Counsel for Sears informed
the judge that while the defendant was not present, he was available to come to
court that afternoon if the judge so desired. Defense counsel advised the court
that his client had accepted the plea offer made by the prosecutor, and asked
that in lieu of convening the following morning for a jury trial, that the parties
appear before the court for the defendant's entry of a guilty plea.
The judge asked the prosecutor if there were any witnesses scheduled to appear that were not local. The prosecutor informed the judge that she intended to call only three witnesses, two police officers and the victim, and these witnesses were all local. Counsel for Sears argued that the jury was generally not called until after 5:00 p.m.; consequently, it would not be inconvenient to the jurors to cancel the trial.
The court rejected the request,
stating it really blows our whole scheme when we do this, letting this go
late, because it encourages people to just plead later and later when we permit
something like this and then it makes it harder for us to control our docket.
The trial was conducted the following day before a jury, and Sears was found guilty on both charges. Sears was subsequently sentenced to a period of 60 years on the charge of aggravated robbery and 1 year on the charge of battery with these sentences to run consecutively for a total of 61 years. This appeal followed.
The crux of Rule 11 and our case
law is that the decision to accept or reject a plea agreement is vested in the
discretion of the trial court. Myers, 173 W.Va. at 665, 319 S.E.2d
at 789; Brewer, supra, 195 W.Va. at 192, 185 S.E.2d at 192. In the words
of Cardozo, discretion must be methodized by analogy, disciplined by system.
The Nature of the Judicial Process, 139 (1921). Justice Frankfurter wrote
in a separate opinion in Brown v. Allen, 344 U.S. 443, 496, 73 S.Ct. 397,
441, 97 L.Ed. 469, ___ (1953), that [d]iscretion without a criterion for
its exercise is authorization of arbitrariness. Black's defines judicial
discretion, in part, as the exercise of judicial judgment, based on facts
and guided by law, or the equitable decision of what is just and proper under
the circumstances. Black's Law Dictionary 467 (6th ed. 1990).
A review of the record before us indicates that the trial judge did not utilize his discretion. Rather, it appears to us that the trial judge divested himself of his entrusted discretion with respect to the merits of the plea agreement, and adhered to a local rule of his own making prohibiting plea agreements after pretrial hearings were concluded.See footnote 6 6 The explanation that the judge gave for refusing to examine the merits of the plea agreement was that if he accepted this plea, it would encourage other people to plead late and that this would make it harder for us to control our docket.
While controlling the court's docket is a goal which with we can sympathize, the local rule apparently permitted a defendant to plead guilty after pretrial hearings, if he pled guilty straight up to the indictment. If the defendant had pled guilty on the day before trial straight to the indictment or pursuant to the plea agreement -- the jury would, in either event, have been called after 5:00 p.m. and instructed not to report to court the following day. We do not see, therefore, how this particular local rule would help control the docket.
We hold, therefore, that when a criminal defendant and the prosecution reach a plea agreement, it is an abuse of discretion for the circuit court to summarily refuse to consider the substantive terms of the agreement solely because of the timing of the presentation of the agreement to the court.
Since we have not addressed this issue previously, it is instructive to examine the law from other states and federal courts. Arizona has ruled that a local rule, similar to the one in the case before us, was improper, because it prohibited the trial judge from exercising the discretion granted him. In Hare v. Superior Court, 133 Ariz. 540, 652 P.2d 1387 (1982), the Court reasoned that a trial judge is granted discretion under Arizona's criminal statute relating to plea agreementsSee footnote 7 7 to accept or reject a plea agreement and that no local rule could properly be created that prohibited the exercise of this discretion. Hare 133 Ariz. at ___, 652 P.2d at 1389.
Our holding today also follows several federal courts that have held that, pursuant to Rule 11 of the Federal Rules of Criminal Procedure, a trial court must utilize discretion while examining a proposed plea agreement.
In United States v. Robertson, 45 F.3d 1423 (10th Cir. 1995), the trial court rejected a last minute plea agreement pursuant to a local rule that required all plea negotiations be presented no later than 10 days prior to trial. The local ruled provided that if a plea agreement was not presented timely, the defendant had the option to either plead guilty to the indictment or go to trial. On appeal, the Tenth Circuit held that the rejection of the plea agreement on that basis was an abuse of discretion. Robertson 45 F.3d at 1438- 1439.
The court in Robertson additionally held that in order to insure [courts] exercise sound judicial discretion . . . courts must set forth, on the record, the prosecution's reasons for framing the bargain and the court's justification for rejecting it.See footnote 8 8 Id. at 1438.
Similarly in United States
v. Shepherd, 102 F.3d 558 (D.C.Cir. 1997), the United States Court of Appeals
for the District of Columbia held that a trial court had abused its discretion
when the court rejected a plea agreement, due to its timing, when it was submitted
on the first day of trial.
Because we find that the discretion granted to trial courts pursuant to Rule 11 is a valuable trust that should not be discarded for the sake of expediency, we believe that the reasoning and analysis set forth in Hare, Robertson, and Shepard is the appropriate standard to follow.See footnote 9 9
who prevails on appeal shall be allowed to withdraw the plea.
(b) Nolo Contendere. -- A defendant may plead nolo con- tendere only with the consent of the court. Such a plea shall be accepted by the court only after due consideration of the views of the parties and the interest of the public in the effective administration of justice.
(c) Advice to Defendant. -- Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following:
(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law; and
(2) If the defendant is not represented by an attorney, that the defendant has the right to be represented by an attorney at every stage of the proceeding and, if necessary, one will be appointed to represent the defendant; and
(3) That the defendant has the right to plead not guilty or to persist in that plea if it has already been made, and that the defendant has the right to be tried by a jury and at that trial the right to the assistance of counsel, the right to confront and cross- examine adverse witnesses, the right against compelled self- incrimination, and the right to call witnesses; and
(4) That if a plea of guilty or nolo contendere is accepted by the court there will not be a further trial of any kind, so that by pleading guilty or nolo contendere the defendant waives the right to a trial; and
(5) If the court intends to question the defendant under oath, on the record, and in the presence of counsel about the offense to which the defendant has pleaded, that the defendant's answers may later be used against the defendant in a prosecution for perjury or false swearing.
The court shall also inquire as to whether the defendant's willingness to plead guilty or nolo contendere results from prior discussions between the attorney for the state and the defendant or the defendant's attorney.
submitted to the Supreme Court of Appeals in accordance with TCR 1.03. Said rule shall remain in effect until it is rejected by order of the Supreme Court of Appeals. Any existing local rule which is not submitted to the Supreme Court of Appeals prior to September 1, 1999, shall be repealed, effective September 1, 1999.
their reasons for rejecting a plea agreement on the record. See United States v. Moore, 916 F.2d 1131, 1135-1136 (6th Cir. 1990); United States v. Miller, 722 F.2d 562, 566 (9th Cir. 1983); United States v. Delegal, 678 F.2d 47, 50 (7th Cir. 1982); United States v. Ammidown, 497 F.2d 615, 623 (D.C.Cir. 1973); United States v. Maddox, 48 F.3d 555, 558 (D.C.Cir. 1995).