A. Courtenay Craig
V. McGraw, Jr.
Huntington, West Virginia Attorney General
Attorney for Petitioner Daynus Jividen
Senior Assistant Attorney General
Charleston, West Virginia
Attorneys for Respondents
Chief Justice Davis delivered the
Opinion of the Court.
West Virginia [Parole] Board . . . must act in a way which is not unreasonable,
capricious, or arbitrary. Syllabus point 3, State ex rel. Eads v.
Duncil, 196 W. Va. 604, 474 S.E.2d 534 (1996).
of law developed in relation to plea agreements between the State and a criminal
defendant apply with equal force to written conditional agreements entered
between the West Virginia Parole Board and a parolee.
Davis, Chief Justice:
Kevin Ray Gardner, petitioner (hereinafter referred to as Mr. Gardner), filed this writ of habeas corpus seeking relief from a decision by the West Virginia Parole Board, respondent (See footnote 1) (hereinafter referred to as Parole Board), revoking his parole. Mr. Gardner contends that revocation of his parole was unlawful because he fulfilled a conditional agreement with the Parole Board that precluded revocation of his parole. After reviewing the briefs and hearing oral arguments, we agree with Mr. Gardner.
In 1998, Mr. Gardner was paroled by Ohio and returned
to West Virginia. Upon his return to West Virginia, Mr. Gardner was imprisoned.
(See footnote 2) He was granted parole from
his West Virginia sentence in April of 2000.
In September 2000, Mr. Gardner
was stopped by a state trooper while driving a motor vehicle.
(See footnote 3)
Mr. Gardner attempted to flee immediately after being stopped. However,
Mr. Gardner wrecked the car he was driving and was apprehended. Shortly thereafter,
Mr. Gardner was charged with misdemeanor offenses that included battery on
a police officer, fleeing arrest and causing property damage, and striking
an unattended vehicle.
On or about December 6,
2000, parole violation charges were filed against Mr. Gardner as a result
of the September incident. Instead of holding a final revocation hearing on
the parole violation charges, the Parole Board entered a written agreement
with Mr. Gardner. The agreement was to restore his parole conditioned upon
his having no other parole violations for one month after its execution. The
actual period covered by the agreement was December 21, 2000, to January 21, 2001.
(See footnote 4)
Mr. Gardner committed no
new parole violations during the period of the agreement with the Parole Board.
On January 18, 2001, Mr. Gardner pled guilty to the three misdemeanor charges
that prompted the initial parole revocation proceedings. As a consequence
of his guilty plea to the misdemeanor charges on January 31, 2001, Mr. Gardner
was charged with violating his parole. A parole revocation hearing was held
on April 26, 2001. On May 7, 2001, the Parole Board issued an order revoking
Mr. Gardner's parole. Mr. Gardner filed a request with this Court seeking
a stay of execution of the parole revocation order pending an appeal of the
decision. On May 23, 2001, this Court issued an order staying the parole revocation
order. Then, Mr. Gardner filed the instant writ of habeas corpus challenging
the parole revocation order.
In searching for guidance in resolving issues surrounding the effects and implications of an agreement entered into by the Parole Board and a parolee, we observe that there is a close relationship between this type of an agreement and a plea agreement. Indeed, the major difference between these two types of agreements is that a plea agreement is not valid until accepted by a trial court. See Syl. pt. 3, in part, State ex rel. Brewer v. Starcher, 195 W. Va. 185, 465 S.E.2d 185 (1995) (Although the parties in criminal proceedings have broad discretion in negotiating the terms and conditions of a plea agreement . . ., the decision whether to accept or reject a plea agreement is vested almost exclusively with the circuit court.). Because these two types of agreements are so similar in use and effect, we find that the law applicable to each should be the same. Consequently, we hold thatprinciples of law developed in relation to plea agreements between the State and a criminal defendant apply with equal force to written conditional agreements entered between the West Virginia Parole Board and a parolee. Accordingly, to resolve the issues raised in connection with the parole agreement before us, we look to principles that are applicable to a plea agreement between the State and a criminal defendant.
Under the above principles,
the Parole Board and Mr. Gardner were bound by the express terms of their written
agreement. Pursuant to that agreement Mr. Gardner had to remain free of any
violation of his parole during the period from December 21, 2000, to January
21, 2001. Mr. Gardner fulfilled his end of the agreement. See Syl.,
in part, State v. Ward, 112 W.Va. 552, 165 S.E. 803 (1932) (An
agreement between [the State] and an accused . . . should be upheld ordinarily
when the accused has fulfilled his part of the agreement.). The Parole
Board, however, breached its end of the agreement by revoking Mr. Gardner's
parole for conduct occurring before December 21, 2000. See Myers,
204 W.Va. at 459, 513 S.E.2d at 686 (If the State fails to uphold its
commitment under a plea agreement by breaching a promise upon which a guilty
plea is based, the resulting conviction simply cannot stand.).
The Parole Board has offered
two implausible arguments to justify its violation of the agreement. First,
the Parole Board contends that the guilty plea entered by Mr. Gardner was
different from the parole violation charges. It is the position of the Parole
Board that the parole violation charges did not include pleading guilty to
the offenses of September 2000, thus, the guilty plea was new. This contention
is meritless. The parole violation charges brought against Mr. Gardner were
based upon offenses committed by him during the September 2000 incident. The
fact that Mr. Gardner eventually pled guilty to those offenses did not somehow
transform such offenses into new offenses. Were this Court to allow the Parole Board to make such agreements
and violate them in the manner done in this case, the Parole Board would have
free reign to entice parolees to plead guilty to offenses under the belief
that their parole would not thereby be revoked. In fact, the Parole Board
could then revoke their parole under the guise of new and different parole
violation charges based upon a plea of guilty to pending charges.
Another argument made by
the Parole Board is that the agreement made with Mr. Gardner only precluded
the Parole Board from going forward with the parole revocation charges initially
filed. The Parole Board contends that nothing in the agreement precluded the
Division of Corrections or the Southwestern Regional Parole Services Office
from bringing charges against Mr. Gardner because of his guilty plea. We find
this argument untenable. Once the Parole Board entered such an agreement with
Mr. Gardner, that agreement bound all State entities that may have had authority
to file parole violation charges against Mr. Gardner.
In syllabus point 8 of Brewer,
we noted, in part, 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. In the instant proceeding, Mr. Gardner
is entitled to specific performance of the agreement he made with the Parole
Mr. Gardner filed a response
to the motion to dismiss. The response has made numerous allegations as to
why the instant proceeding is not moot. One of Mr. Gardner's allegations appears
to have merit. Mr. Gardner alleges that he was not convicted of DUI, because
[t]he charges were dismissed December 20, 2001. It has also been
alleged by Mr. Gardner that the chairman of the Parole Board informed him
that the second parole revocation order would be dismissed upon receipt of
the dismissal order of the DUI charges. However, according to Mr. Gardner,
the chairman of the Parole Board changed his mind and has indicated the Parole
Board would not act on dismissing the second parole revocation until the instant
proceeding has been decided.
Although we make no ruling on the validity or status of the second parole revocation, we are of the opinion that the question of the validity of the first parole revocation is not moot. In view of the possibility that Mr. Gardner may in fact succeed in having the second parole revocation order dismissed, this would still leave in tact the first parole revocation order. We therefore deny the motion to dismiss filed by the Parole Board.