Noel M. Olivero, Esq.|
Sammons, Olivero & Paraschos
Huntington, West Virginia
Attorney for Appellant
Darrell V. McGraw, Jr.|
Barbara H. Allen
Managing Deputy Attorney General
Charleston, West Virginia
Attorneys for Appellee
JUSTICES STARCHER and ALBRIGHT concur, in part, and dissent,
and reserve the right to file separate opinions.
1. A habeas petitioner may successfully challenge a guilty-plea conviction
based upon an alleged violation of Rule 11 of the West Virginia Rules of Criminal Procedure
only by establishing that the violation constituted a constitutional or jurisdictional error; or
by showing that the error resulted in a complete miscarriage of justice, or in a proceeding
inconsistent with the rudimentary demands of fair procedure. Moreover, the petitioner must
also demonstrate that he was prejudiced in that he was unaware of the consequences of his
plea, and, if properly advised, would not have pleaded guilty. Syl. pt. 10, State ex rel.
Vernatter v. Warden, 207 W. Va. 11, 528 S.E.2d 207 (1999).
2. Absent the special circumstance of a defendant claiming factual innocence while pleading guilty to a criminal charge, the requirement of W. Va. R. Crim. P. 11(f) that a trial court make an inquiry into the factual basis of the defendant's plea is not constitutionally mandated. It therefore follows under our reasoning in syllabus point 10 of State ex rel. Vernatter v. Warden, 207 W. Va. 11, 528 S.E.2d 207 (1999), that a simple violation of Rule 11(f), standing alone and without a showing of prejudice, may not serve as a predicate for collateral relief under the West Virginia Post-Conviction Habeas Corpus Act, W. Va. Code §§ 53-4A-1 to -11.
Appellant Donald Farmer, Jr., appeals the refusal of the Circuit Court of Mingo
County to grant habeas corpus relief on his claims that (1) he was not informed, at the time
he pled guilty to charges of first-degree murder and robbery with the use of a firearm, of the
various constitutional rights incident to standing trial, as required by W. Va. R. Crim. P.
11(c); and (2) the trial court failed to obtain a sufficient factual basis for his guilty plea to
first-degree murder as required by W. Va. R. Crim. P. 11(f), in that he never expressly stated
on the record that he intended to kill the victim. We affirm the circuit court, concluding that
Farmer failed to show that he was prejudiced by the trial court's alleged violations of
Rule 11, as required by our recent holding in State ex rel. Vernatter v. Warden, 207 W. Va.
11, 528 S.E.2d 207 (1999).
Farmer was indicted by the Mingo County Grand Jury in September 1990 on charges of murder and robbery, in connection with allegations that he shot and killed 70- year-old Gertrude Huff in the course of robbing her of approximately $3,000. There was evidence that in carrying out the robbery in concert with his uncle, Ballard Johnson, Farmer shot his victim in the back, and then later shot her two more times in the face as she lay on the ground. Farmer later entered into a written plea agreement with prosecutors, where he agreed to plead guilty to both first-degree murder, W. Va. Code § 61-2-1 (1987), and robbery
with the use of a firearm, W. Va. Code § 61-2-12 (1961), on
condition that he obtain a recommendation of mercy with respect on the murder
charge, so as to permit him to eventually become eligible for parole,See
footnote 1 and that the State would recommend a sentence of 20 years in
connection with the robbery offense.
Farmer tendered his guilty pleas to the two offenses at a hearing conducted on
November 21, 1990. At a subsequent hearing held on July 2, 1991, Farmer was sentenced
to life with mercy on the charge of first-degree murder, with sentencing on the robbery
offense being deferred pending his testimony at the trial of his co-defendant. After Johnson
was tried and convicted on similar charges, which resulted in the imposition of two
consecutive life sentences, a second sentencing hearing was conducted on November 15,
1991, where the State, in conformity with an amendment to the original plea agreement,
recommended that Farmer receive a 15-year sentence on the robbery charge. After hearing
testimony from Trooper John Zirkle of the West Virginia State Police regarding the facts of
the crime, the trial court again deferred sentencing pending the completion of a presentencing
report. At the final sentencing hearing, held on February 19, 1992, the State again
recommended a 15-year sentence; however, after citing the nature of Farmer's conduct and
the fact that his co-defendant, who had not fired the fatal shots, had received two consecutive
life sentences, the court imposed a sentence of 24 years, to be served consecutive to the
previous life sentence.
Farmer later sought post-conviction habeas relief and, following the appointment of counsel, eventually filed a second amended habeas petition which set forth two broad grounds for relief. First, he alleged that his guilty pleas were involuntary, and in doing so effectively presented three distinct claims: (1) the circuit court failed to inform him of his constitutional trial rights and adequately question him regarding the voluntariness of his plea as required by Criminal Procedure Rule 11(c) & (d); (2) the court failed to inform him of his right to withdraw his plea in the event that the recommended sentence was rejected, as required by W. Va. R. Crim. P. 11(e)(2); and (3) the court failed to ascertain a factual basis for Farmer's guilty plea to first-degree murder in accord with W. Va. R. Crim. P. 11(f), in that he never admitted to having specific intent to kill Mrs. Huff. As an additional ground for relief, Farmer contended that he had not received effective assistance of counsel at the time he tendered his guilty pleas.
During an evidentiary hearing held incident to the habeas corpus petition on
July 21, 1997, Farmer testified, among other things, that his lawyers had failed to inform him
of the various rights that he would waive by pleading guilty:
Q Before you pled guilty did you understand all the rights that you would give up if you pled guilty?
A No, I did not.
Q Before the plea hearing, and this would have been in November, did your attorneys tell you about all the rights you would give up if you pled guilty, or do you recall?
Farmer also testified that he was told by his lawyers what to say at the plea hearing, that he did not understand what he was being told by the plea hearing judge, and that contrary to statements made during the plea hearing, his lawyers had neither read nor explained to him the substance of a Petition to Enter Guilty Plea that had been tendered to the circuit court at the time he pled guilty, which set forth in detail the rights he would be waiving by entering a guilty plea.See footnote 2
When Teresa McCune, who had
represented Farmer at his plea hearing, was later called to testify at the evidentiary
hearing, the issue arose as to whether Farmer had effectively waived the attorney-client
privilege by asserting deficiencies in counsel's representation. When Farmer,
after consultation with his habeas counsel, expressly refused to permit Ms.
McCune to testify to facts pertaining to her representation, the court made
clear that it would not permit the petitioner to go forward with any claims
that called into question the advice given him by trial counsel:
THE COURT: The problem here . . . is that Mr. Farmer wants to get up and testify that he answered certain questions that are in the court transcript at the time of his plea, but that he was told to give answers that he was assisted during the course of the proceeding by saying whether to say yes or no to the court's questions and that, in effect, he was placed under duress because of the threat of receiving life without mercy in order to what amounted to false answers in his_at the time of his plea proceeding and now he has directly accused Ms. McCune of telling him to do so. What Mr. Farmer wants to do is put all those issues into evidence and then put everyone in an impossible position_he's putting the state in an impossible position of rebutting the argument. No one but Ms. McCune and Mr. Farmer were privy to those conversations and Mr. Farmer wants to paint them in one light and Ms. McCune may very well testify consistent with that or she may testify inconsistent with that, but, certainly, he has questioned the official transcript and has offered an explanation of why it says what is says. He wants to open the door and put evidence in the record as far as this writ is concerned and then close the door so no one can rebut it. Who else in the world can rebut what Mr. Farmer has testified to here today except for Ms. McCune. . . .
The court went on to state succinctly, I'm going to tell you now that I'm going to give none of Mr. Farmer's testimony credibility with regard to those issues if Ms. McCune is not allowed to testify in this matter.
In response, Farmer's counsel suggested that the other possible solution is this
case can be decided on the first issue, which is whether the plea was knowing, intelligent and
voluntary with respect to the advice that Mr. Farmer was given or not given during the plea
hearing. (Emphasis added.) The court then gave Farmer the choice of either permitting Ms.
McCune to testify, or withdrawing those claims which implicated her representation. Farmer
chose the latter course, which elicited the following statement from the habeas court:
THE COURT: All right. If Mr. Farmer intends to claim privilege, then this court is not going to consider any of the prior testimony of Ms. McCune and is not going to consider any of the grounds that would be associated with her testimony . . . and, frankly, to make it very plain, any issue relative to the representations of Ms. McCune, ineffective assistance of
counsel, her advice, misrepresentation of or him being placed
under duress or threats of a higher sentence or matter[s] along
these lines will not be considered if Ms. McCune is not going to
testify in this matter, fully, completely, openly and honestly.
The court then asked Farmer's habeas counsel to state the issues remaining for decision, which drew the following response:
MR. OLIVERO: Your Honor, the best I can characterize it, from the petition which I have previously filed, Mr. Farmer's claim would be whether or not his plea to the charges could have been voluntary where the court did not inform him that he could not withdraw his plea of guilty if the court chose not to follow the recommended sentence and where the court did not inform Mr. Farmer, alternatively, at the sentencing hearing that it was not going to follow the recommended sentence and afford him an opportunity to withdraw his plea and where the court, during the plea hearing, did not inform Mr. Farmer that he had the right to plead not guilty and where the court did not inform Mr. Farmer at the plea hearing he had the right to be tried by a jury and at that trial he had the right to assistance of counsel, where the court did not advise the petitioner, Mr. Farmer, he had the right to confront and cross[-]examine witnesses and he had the right against compelled self-incrimination and where the court did not inform him that he had the right to call witnesses on his own behalf at trial; where the court did not inform him that if he pled guilty he would be giving up his right to a trial; where the petitioner was not advised by the court during the plea hearing when he was placed under oath in the presence of his attorney that any answer he gave could later be used against him in a prosecution of perjury or false swearing, and, finally, your Honor, where the court did not recite the complete terms of the plea agreement on the record during the plea hearing . . . These would be the issues your Honor. I believe they can be resolved by looking at State v. Cabell, [176 W. Va. 272, 342 S.E.2d 240 (1986)], looking at Rule 11, and reviewing the transcript.
The only other final issue would be whether or not there was a sufficient factual basis for the court's acceptance of the guilty plea at the plea hearing, which I believe can also be resolved, you Honor, by looking at the transcript and
considering the case law we have cited in conjunction with that
The habeas court issued its final order on October 12, 1999, which granted
relief on the narrow claim that Farmer was not informed of his right to withdraw his guilty
plea to robbery in the event the trial court failed to follow the sentencing recommendation.
The court ordered specific performance of the terms of the plea agreement in accord with
syllabus point two of State v. Stone, 200 W. Va. 125, 488 S.E.2d 400 (1997), and later
resentenced Farmer to fifteen years on the robbery charge. All other claims for relief were
denied, with the court finding, in part, that the underlying guilty pleas were entered into
freely, voluntarily, intelligently, knowingly and competently. Farmer now appeals, arguing
that the lower court erred in failing to grant relief on his claims regarding shortcomings in
the Rule 11 colloquy undertaken by the trial court.
At the outset, we must stress the fact that the present case arises under the West Virginia Post-Conviction Habeas Corpus Act, W. Va. Code §§ 53-4A-1 to -11, as a collateral challenge to a criminal conviction. This Court has frequently stressed that the standard for obtaining habeas corpus relief differs markedly from that which applies to secure a reversal on direct appeal: A habeas corpus proceeding is not a substitute for a writ of error in that
ordinary trial error not involving constitutional violations will not be reviewed. Syl. pt. 4,
State ex rel. McMannis v. Mohn, 163 W. Va. 129, 254 S.E.2d 805 (1979), cert. denied, 464
U.S. 831, 104 S. Ct. 110, 78 L. Ed. 2d 112 (1983); see also Syl. pt. 9, State ex rel. Azeez v.
Mangum, 195 W. Va. 163, 465 S.E.2d 163 (1995); State ex rel. Phillips v. Legursky, 187
W. Va. 607, 420 S.E.2d 743 (1992).
This limitation on the right to collaterally challenge a criminal conviction has
special force in instances where the conviction rests upon a guilty plea, where the concern
for finality is particularly strong. Thus, as we recently stated in syllabus point 10 of State ex
rel. Vernatter v. Warden, 207 W. Va. 11, 528 S.E.2d 207 (1999):
A habeas petitioner may successfully challenge a guilty- plea conviction based upon an alleged violation of Rule 11 of the West Virginia Rules of Criminal Procedure only by establishing that the violation constituted a constitutional or jurisdictional error; or by showing that the error resulted in a complete miscarriage of justice, or in a proceeding inconsistent with the rudimentary demands of fair procedure. Moreover, the petitioner must also demonstrate that he was prejudiced in that he was unaware of the consequences of his plea, and, if properly advised, would not have pleaded guilty.
The Court likewise made clear in Vernatter that a prisoner may not collaterally attack a guilty plea under Rule 11 where 'all that is shown is a failure to comply with the formal requirements of the Rule.' 207 W. Va. at 20, 528 S.E.2d at 216 (quoting United States v. Timmreck, 441 U.S. 780, 785, 99 S. Ct. 2085, 2088, 60 L. Ed. 2d 634 (1979)); see also Thomas v. Leverette, 161 W. Va. 224, 227, 239 S.E.2d 500, 502 (1977) (pointing out that Call v. McKenzie, 159 W. Va. 191, 220 S.E.2d 665 (1975), the precursor to Rule 11, merely
suggested specific inquiries that should be made of the defendant at the time his guilty plea
is taken in order to forestall future attack on the guilty plea by way of a habeas corpus
proceeding. Call acknowledged that the failure of the trial court to follow each suggested
inquiry would not invalidate the guilty plea.). In simpler terms, a failure to comply with
Rule 11 is not by necessary implication a failure to comply with due process. See Haase v.
United States, 800 F.2d 123, 127 (7th Cir.1986) (Rule 11 is a device for protecting [the
voluntariness of a guilty plea,] but the scope of the Rule does not equal the more limited
scope of the constitutional right.); Salazar v. Warden, Utah State Prison, 852 P.2d 988, 991-
92 (Utah 1993).
Farmer therefore faces a significant hurdle in his quest to overturn his guilty
pleas, since at this juncture he must demonstrate not only that the circuit court erred in the
procedures it employed in accepting such pleas, but also that these defects contributed to a
deprivation of due process in that the guilty pleas were in fact not knowing and voluntary.
A habeas petitioner seeking to overturn his guilty plea bears the burden of persuasion with
respect to the voluntariness of the plea. See syl. pt. 3, State ex rel. Clancy v. Coiner, 154
W. Va. 857, 179 S.E.2d 726 (1971) (The burden of proving that a plea was involuntarily
made rests upon the pleader.); accord syl. pt. 1, State ex rel. Wilson v. Hedrick, 180 W. Va.
689, 379 S.E.2d 493 (1989) (per curiam).
court's failure to directly inform him of the various constitutional rights he would waive by pleading guilty, and Rule 11(d),See footnote 5 due to the court having, among other things, posed an excessive number of yes/no questions.See footnote 6 While Farmer frames this issue in terms of whether his pleas were voluntary,See footnote 7 a review of the transcript of the evidentiary hearing clearly
reveals that, in the end, he has done no more than challenge the plea hearing
court's technical compliance with Rule 11(c) & (d). By acceding to the constraints
imposed by the habeas court on account of his refusal to permit his trial counsel
to testify, which limitation is not challenged here, Farmer effectively precluded
himself from demonstrating that his plea was truly rendered involuntary by the
alleged shortcomings in the Rule 11 colloquy. Indeed, Farmer's tactical choice
to rely exclusively upon the existing record made the necessary showing of prejudice
altogether impossible, since whether a guilty plea is voluntary depends upon
information known by the defendant at the time the plea was entered, including
what was learned out of court. See Henderson v. Morgan, 426 U.S.
637, 647, 96 S. Ct. 2253, 2258, 49 L. Ed. 2d 108 (1976) (explanation
of elements of charge either by trial judge or defense counsel sufficient);
cf. syl. pt. 2, State v. Sims, 162 W. Va. 212, 248 S.E.2d
834 (1978) (The controlling test as to the voluntariness of a guilty plea,
when it is attacked either on a direct appeal or in a habeas corpus proceeding
on grounds that fall within those on which counsel might reasonably be expected
to advise, is the competency of the advice given by counsel.). Farmer's
claims regarding deficiencies in the trial court's colloquy under Rule 11(c)
& (d) therefore fail because he has made no attempt to demonstrate that
he was prejudiced to the extent that the court's errors rendered his plea involuntary.
Farmer's second claim, that his guilty plea to first-degree murder was involuntary as a result of the trial court's failure to ascertain a factual basis for such charge as required by W. Va. R. Crim. P. 11(f),See footnote 8 likewise fails under Vernatter's limited scope of review. As we explained in State v. Bennett, 179 W. Va. 464, 370 S.E.2d 120 (1988), one purpose of the requirement of Rule 11(f) is to 'protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.' Id. at 467, 370 S.E.2d at 123 (quoting McCarthy v. United States, 394 U.S. 459, 467, 89 S. Ct. 1166, 1171, 22 L. Ed. 2d 418, 426 (1969)). While such purpose is obviously laudatory, this Court has never deemed it constitutionally necessary for a trial court to undertake the inquiry required by Rule 11(f). And other courts appear in general agreement that absent special circumstances 'there is no constitutional requirement that a trial judge inquire into the factual basis of a plea.' United States v. McGlocklin, 8 F.3d 1037, 1047 (6th Cir. 1993) (en banc), cert. denied, 511 U.S. 1054, 114 S. Ct. 1614, 128 L. Ed. 2d 341 (1994) (citation omitted).See footnote 9 Rather,
only when the defendant claims his factual innocence while pleading guilty, a situation not
present in this case, is a court constitutionally required to undertake such a procedure. See
North Carolina v. Alford, 400 U.S. 25, 37-39, 91 S. Ct. 160, 167-68, 27 L. Ed. 2d 162
(1970); see also Wallace v. Turner, 695 F.2d 545, 548 (11th Cir. 1983); Willett v. Georgia,
608 F.2d 538, 540-41 (5th Cir. 1979).
Thus, absent the special circumstance
of a defendant claiming factual innocence while pleading guilty to a criminal
charge, the requirement of Rule 11(f) that a trial court make an inquiry into
the factual basis of the defendant's plea is not constitutionally mandated.
It therefore follows under our reasoning in Vernatter that a simple violation
of Rule 11(f) may not, standing alone and without a showing of prejudice, serve
as a predicate for collateral relief. And since Farmer has done no more than
assert that the trial court's plea colloquy failed to meet the formal requirements
of Rule 11(f), without otherwise attempting to demonstrate his plea was thereby
rendered involuntary as a consequence,See
footnote 10 we find no error in the circuit court's rejection of this claim.
We must stress that our treatment
of Farmer's Rule 11 claims is determined by the procedural posture of this case,
since it arises as a post-conviction habeas corpus challenge. The Court in no
way means to suggest that the requirements of Rule 11 are any less mandatory
for the trial courts of this jurisdiction. On direct appeal of a denial of a
motion to withdraw a guilty plea, a trial court's failure to adhere to the rule
continues to require reversal unless it can be shown that the violation amounted
to harmless error. See W. Va. R. Crim. P. 11(h) (Any
variance from the procedures required by this rule which does not affect substantial
rights shall be disregarded.). And as we recently stated in syllabus point
two, in part, of State v. Valentine, 208 W. Va. 513, 541 S.E.2d
603 (2000), harmless error in the context of Rule 11 may be found only when
the factual evidence is clear that no substantial rights of the defendant were
disregarded. See also syl. pt. 7, State ex rel. Brewer v. Starcher,
195 W. Va. 185, 465 S.E.2d 185 (1995). Moreover, like the United States Supreme
Court similarly made clear in United States v. Timmreck, supra,
we do not foreclose the possibility that collateral relief would be available
if a violation of Rule 11 occurred in the context of other aggravating circumstances.
441 U.S. at 784-85, 99 S. Ct. at 2088. Indeed, our cases appear
to support relief in such situations. E.g., Pugh v. Leverette,
169 W. Va. 223, 233, 286 S.E.2d 415, 421 (1982) (voiding conviction on
basis of deficiencies in plea colloquy, where evidence indicated that defendant's
plea was made under oppressive and coercive circumstances). But
no such aggravating circumstances have been presented in this case.
For the reasons stated, the judgment of the Circuit Court of Mingo County is
(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
effective waiver of certain basic constitutional rights. 395 U.S. at 242, 89 S. Ct. at 1712. As the Boykin Court observed, the surrender of such important rights cannot [be] presume[d] . . . from a silent record. Id. at 242-43, 89 S. Ct. at 1712. In accord with Boykin, this Court in syllabus point one of Riley v. Ziegler, 161 W. Va. 290, 241 S.E.2d 813 (1978), stated that [w]hen a conviction rests upon a plea of guilty, the record must affirmatively show that the plea was intelligently and voluntarily made with an awareness of the nature of the charge to which the plea is offered and the consequences of the plea. Examining the record in its entirety, which includes representations by both Farmer and his lawyer during the plea hearing that the defendant had been informed of his various constitutional trial rights, we find that it affirmatively shows that the pleas at issue in this case were voluntary and intelligent under the totality of the circumstances.
entry of the plea . . . .); Higgason v. Clark, 984 F.2d 203, 207-08 (7th Cir. 1993) (indicating that Supreme Court precedent does not imply that the factual-basis requirement of Fed. R. Crim. P. 11(f) and its state-law counterparts comes from the Constitution); Rodriguez v. Ricketts, 777 F.2d 527, 528 (9th Cir. 1985) (We conclude that the due process clause does not impose on a state court the duty to establish a factual basis for a guilty plea absent special circumstances.); Willbright v. Smith, 745 F.2d 779, 780 (2d Cir. 1984) ([D]ue process does not mandate a factual basis inquiry by state courts.).