No. 22541 - State of West Virginia v. Bruce Allen Lilly
No. 22542 - State of West Virginia v. Cecil Wayne Lilly
Cleckley, Justice, concurring:
I agree entirely with another of Judge Fox's fine and scholarly opinions. I write only to applaud the trial court, the litigants, the prosecuting attorney, and defense counsel below for their use of Rule 11(a)(2) of the West Virginia Rules of Criminal Procedure.See footnote 1 1 Realizing that the only meritorious issue in the case was the Fourth Amendment claim, the participants below agreed to allow the defendants to enter conditional guilty pleasSee footnote 2 2 which
preserved the defendants' right to appeal the constitutional claim.
By invoking Rule 11(a)(2), the parties not only eliminated the need
for a protracted trial, but paid the ultimate respect to limited
judicial resources and judicial economy. To be specific, the
appropriate use of a conditional guilty plea by a criminal
defendant serves the interests of justice by, inter alia,
safeguarding the defendant's right to appeal and promoting judicial
economy. See State v. Forshey, 182 W. Va. 87, 93, 386 S.E.2d 15,
21 (1989) (forcing party to go through an unnecessary trial is a
"'pointless and wasteful exercise'") (Miller, J., dissenting).
As a general rule, an unconditional plea of guilty or
nolo contendere, intelligently and voluntarily made, operates as a
waiver of all nonjurisdictional defects and bars the later
assertion of constitutional challenges to pretrial proceedings.
Tollett v. Henderson, 411 U.S. 258, 93 S. Ct. 1602, 36 L.Ed.2d 235
(1973); Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981);
State v. Sims, 162 W. Va. 212, 248 S.E.2d 834 (1978); 1 C. Wright,
Federal Practice & Procedure § 175 (1982). Although a defendant
may still challenge the sufficiency of the indictment or other
defects bearing directly upon the State's authority to compel the
defendant to answer to charges in court, claims of
nonjurisdictional defects in the proceedings, such as unlawfully obtained evidence and illegal detention, generally will not survive
the plea. An exception to this general rule is a plea conditioned
upon the right to appeal certain pretrial rulings. "Where specific
rulings are decisive of the case, so that a trial serves merely to
preserve those pretrial issues for appeal, the conditional plea
obviates the need for a trial thus conserving judicial resources."
State v. Morin, 71 Haw. 159, 162, 785 P.2d 1316, 1319 (1990).
In West Virginia, conditional pleas are authorized by
Rule 11(a)(2) of the Rules of Criminal Procedure:
"Conditional Pleas. 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."
Prior to our adoption of Rule 11(a)(2), and to a disappointingly
large extent today, a criminal defendant who loses one or more
pretrial motions will often go through a lengthy trial merely to
preserve the pretrial issues for later appellate review. In most
cases, this results in a waste of prosecutorial and judicial
resources, not to mention adding to the already congested trial
dockets of circuit courts. Rule 11(a)(2) was adopted solely to
avoid this unfortunate and unnecessary consequence. See also
Lefkowitz v. Newsome, 420 U.S. 283, 293, 95 S. Ct. 886, 891, 43
L.Ed.2d 196, 204 (1975) (describing use of conditional guilty plea
in New York as "commendable efforts to relieve the problem of congested criminal trial calendars in a manner that does not
diminish the opportunity for the assertion of rights guaranteed by
the Constitution").See footnote 3
Although a conditional guilty plea can only be used in
limited circumstances,See footnote 4 as done in the case sub judice, it spares
the taxpayers and the court the expense of a potentially time
consuming trial. Rule 11(a)(2) not only preserves resources, but
serves the ends of justice by permitting a defendant to preserve specific errors. In my judgment, Rule 11(a)(2) is one of our most
important criminal rules and, when it is properly invoked, everyone
benefits, including the public.
The procedure for following Rule 11(a)(2) should remain
simple. A defendant preserves the alleged error by invoking a
ruling by the trial court on a pretrial motion to suppress evidence
or to dismiss. The defendant may then plead guilty or nolo
contendere and reserve appellate review of an adverse determination
of a pretrial motion by entering a conditional plea, in writing,
specifying the issue or issues reserved for appeal. Entry of the
conditional plea is contingent upon approval of the trial court and
the consent of the prosecution. Significantly, neither the
prosecution nor the circuit court is required to agree to a
conditional guilty plea and both are "free to reject a conditional
plea for any reason or no reason at all." United States v. Bell,
966 F.2d 914, 916 (5th Cir. 1992). As discussed in note 4, supra,
before accepting a conditional plea, the circuit court and the
prosecution should assure that pretrial issues reserved for appeal
are case dispositive and are capable of being reviewed by this
Court without a full trial.
It is important for the defendant to understand that Rule
11(a)(2) does not guarantee that his or her petition for appeal
will be granted by this Court. If this Court does not grant the
petition for appeal, the conviction becomes final and the guilty plea may not later be withdrawn for this reason. If the case is
accepted for appellate review, our initial task is to determine
whether a defendant entered a valid conditional plea. In deciding
this initial issue, we, as an appellate court, should not always
require rigid adherence to all the requirements of Rule 11(a)(2).
See W.Va.R.Crim.P. 11(h) ("[a]ny variance from the procedures
required by this rule which does not affect substantial rights
shall be disregarded"). On appeal, we can pardon the informalities
of a conditional guilty plea "so long as the record demonstrates
that the spirit of Rule 11(a)(2) has been fulfilled--that the
defendant expressed an intention to preserve a particular pretrial
issue for appeal and that neither the government nor the district
court opposed such a plea." Bell, 966 F.2d at 916. See also
United States v. Fernandez, 887 F.2d 564, 566 n.1 (5th Cir. 1989)
(holding conditional guilty plea valid despite lack of written
reservation of right to appeal and judge's approval of conditional
On the other hand, "[t]he conditional plea is susceptible
to abuse . . . unless its use is carefully limited to significant
issues the determination of which on appeal is likely to be
dispositive of the case." State v. Madera, 198 Conn. 92, 101, 503
A.2d 136, 141 (1985). Therefore, as an appellate court, we will
review with caution the entire record to determine whether the
litigants or the court below offered satisfactory justification as
to why the procedure under Rule 11(a)(2) was deemed appropriate. In Madera, 198 Conn. at 101-02, 503 A.2d at 141, the court further
"The inherent power of the trial court to reject such a plea where it is clearly inappropriate affords some protection against misuse of the statutory procedure, but the court is not in a position to evaluate such prosecutorial concerns as the significance of a particular ruling to the ultimate disposition of a case or the problems entailed by delaying a trial for the period necessary to obtain appellate relief. The prosecutor is ordinarily much more familiar with the evidence to be presented that may not be affected by the ruling and also with the effect of delay incident to an appeal upon the availability of witnesses. Even where the prosecutor looks favorably on the conditional plea . . . the parties, as well as the trial court, must be sure that the issues reserved can properly be reviewed on the record available."
In the case sub judice, the record made by the trial court was
exemplary and this Court did not hesitate to approve the
conditional plea procedure. I conclude by again applauding the
participants below and particularly the trial court for making this
system of criminal justice work as it should.
Footnote: 1 1For the text of Rule 11(a)(2), see infra.
Footnote: 2 2Conditional pleas are frequently confused with "Alford" pleas, named after the decision in North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L.Ed.2d 162 (1970); but, as the court in note 1 of State v. Hodge, 118 N.M. 410, ___, 882 P.2d 1, 3 (1994), noted, the purpose and effect of the two are different:
"In Alford, the United States Supreme Court
held that courts do not violate due process
when they accept guilty pleas from defendants
who continue to protest their innocence . . .
so long as the court is satisfied that there
is a factual basis for the plea independent
of the defendant's statements. . . . An
Alford plea, however, does not in itself
reserve any issue for appeal.
"A conditional guilty plea, on the other hand, conditions the plea on reservation of one or more specific issues for appellate review. An Alford plea could be conditioned on review of a specific issue, as it was in the case involved here . . . ; but it is a conditional guilty plea only if it comports with the requirements for such a plea. Otherwise, appellate review of Alford pleas is conducted under the same standards as are applicable to review of unconditional
guilty pleas." (Citations omitted).
Footnote: 3 Obviously, there are still some remaining objections to the procedure for conditional guilty pleas. Four of the most often heard objections are: (1) the procedure encourages appellate litigation; (2) it does not advance the interests of finality in the disposition of criminal cases; (3) it precludes the effectiveness of meaningful appellate review because of the absence of a full trial record; and (4) it compels decisions on many issues that would ordinarily not be addressed by an appellate court. Most of the these problems are not applicable in West Virginia because there is no automatic right to appeal. More importantly, when these considerations are balanced against the obvious gains in judicial efficiency that are realized when a full trial is avoided, as well as the opportunity afforded to defendants to enter a plea without foregoing substantial constitutional claims, the need for Rule 11(a)(2) appears compelling. In cases where a defendant chooses to go to trial in order to preserve his right of appeal, not only is finality not achieved, but a successful appeal may result in two trials and two appeals.
Footnote: 4 See United States v. Doherty, 17 F.3d 1056, 1058 (7th Cir. 1994) (quoting United States v. Yasak, 884 F.2d 996, 999 (7th Cir. 1989), noting that conditional pleas are "'allowed only when the appellate court's decision will completely dispose of the case'"); United States v. Markling, 7 F.3d 1309, 1313 (7th Cir. 1993), (quoting United States v. Wong Ching Hing, 867 F.2d 754, 758 (2nd Cir. 1989), quoting Advisory Committee Note to 1983 Amendment of Fed. R. Crim. P. 11 for the proposition that the issue reserved on a conditional guilty plea must "'"dispose of the case either by allowing the plea to stand or by such action as compelling dismissal of the indictment or suppressing essential evidence"'").