West Virginia Record

Sunday, December 15, 2019

Supreme Court reduces parole eligibility date by 5 years in appeal of plea-bargained kidnapping sentence

State Supreme Court

By Kyla Asbury | Jul 18, 2019

Wvschero

CHARLESTON — The West Virginia Supreme Court of Appeals granted a writ of prohibition in an appeal in a case regarding a man who pled guilty to kidnapping in 2016.

John Michael Howell pled guilty to kidnapping and received a potential sentence of life imprisonment with the possibility of parole in 15 years, according to the memorandum decision. Howell challenged the validity of the plea agreement on appeal because the applicable statute mandated eligibility for parole in 10 years. The Supreme Court agreed and vacated Howell’s plea agreement and conviction and ordered that the parties be returned to their respective positions prior to the plea bargain.

"A few days later, the state offered Mr. Howell’s lawyer the original plea agreement modified for eligibility for parole in 10 years," the decision states. "Two days later — two weeks prior to the offer being communicated to Mr. Howell — the state revoked its offer. At the sentencing hearing, the circuit court determined that the state was not permitted to revoke its offer and ordered specific performance of the new plea agreement."

The state then sought for the West Virginia Supreme Court to grant a Writ of Prohibition as to the ruling.

In January 2011, Howell was indicted on four criminal counts, including kidnapping, attempted sexual assault in the second degree, sexual assault in the first degree, and malicious assault. During his trial, the parties informed the circuit court that Howell agreed to plead guilty to the kidnapping charge, which carries a possible life sentence. The written plea agreement expressly provided that he would be eligible for parole after serving 15 years in prison.

In exchange for this guilty plea, the state agreed to dismiss the remaining counts of the indictment.

"During the plea and sentencing hearing, there were repeated references to Mr. Howell serving 15 years of incarceration before becoming eligible for parole consideration," the decision states. "Following a plea colloquy, the circuit court determined that Mr. Howell’s guilty plea to the crime of kidnapping was knowing, intelligent and voluntary. The court sentenced Mr. Howell to life in prison with a recommendation of mercy, once again specifying that Mr. Howell would be 'eligible for parole after serving a minimum of 15 years with credit for time served[.]'"

Later, Howell's attorney objected to the 15-year minimum for parole.

"Mr. Howell moved that the sentencing order be changed to reflect that he would be parole-eligible after 10 years of incarceration," the decision states. "The state objected to this modification, arguing that the requirement of serving at least 15 years in prison was 'the essence of the plea agreement[,]' and that the state would not have entered into the plea bargain without this provision."

Because the 15-year provision was specified in the plea agreement, the circuit court denied Howell’s motion to reduce the parole eligibility period to 10 years and a sentencing order was entered on May 12, 2016, which Howell appealed, according to the decision.

The Supreme Court affirmed the circuit court's order in October 2017, but in February 2018, it granted Howell's request for a rehearing and reversed its prior decision on the matter and vacated the original agreement and conviction.

"We remanded the case to the circuit court with instruction to return the parties to their respective positions post-indictment but prior to entry of the plea agreement," the decision states. 

Shortly after the decision of the Supreme Court, an assistant prosecutor called Howell’s lawyer to discuss a possible resolution of the case. During an April 2018 conversation, the assistant prosecutor told Howell’s lawyer that the state would be willing to offer the original plea agreement with the modification that Howell would be eligible for parole in 10 years, but noted that he hadn’t had a chance to talk it over with the victim.

The state describes this conversation as its offer to enter into a plea agreement, while Howell contends that it was instead the state’s acceptance of his offer to plead by virtue of his prior arguments to this court in the underlying appeals, according to the decision.

The state revoked the offer two days later after speaking with the victim.

On June 28, 2018, Howell’s lawyer sent a text message to assistant prosecutors Eric Gordon and Herman Lantz, requesting a written plea offer. The assistant prosecutors informed Howell’s lawyer that there was no plea offer on the table. 

Howell then filed his Motion to Enforce State of West Virginia’s Agreement to Enter Corrected Sentencing Order/Correct Sentence.

At a July 16 hearing, the circuit court determined that an enforceable plea agreement had been reached and directed the parties to return that afternoon to accept the plea.

The state objected to this order and requested a delay to allow the filing of this Petition for a Writ of Prohibition. The circuit court denied this request and took the plea on the same day over the state’s objection and without the state’s signature on the plea agreement. 

"Here, it is undisputed that the initial plea communications at issue occurred on April 25, 2017, and that the state revoked its offer on April 27, 2017," the decision states. "It is further undisputed that the plea offer was not conveyed to Mr. Howell until May 10, 2018 — two weeks after the State revoked the offer. So, Mr. Howell could not have accepted the offer prior to its revocation. Though this court has written extensively on the standards for effectiveness of plea agreements, we need not consider whether specific performance of the agreement was proper in this instance as we find that no valid agreement existed to enforce."

Justice Margaret Workman authored a separate opinion, concurring in part and dissenting in part.

Workman said she wrote separately to reiterate and underscore how wrong the 2018 Supreme Court decision involving Howell was in completely dismantling the original plea agreement.

"The starkly ludicrous impact of the Howell I Court’s wholesale rescission of the plea agreement is highlighted when considering the substance of the error below," Workman wrote. "Here, the correction of sentence would have resulted simply in petitioner’s parole eligibility five years sooner. Nothing whatsoever suggests that petitioner would be released on parole at that time, or even five years later, at the time the state originally believed he would be eligible. As such, correction of petitioner’s sentence cannot even be fairly stated as necessarily resulting in a different period of incarceration: any change in the actual period of incarceration is purely hypothetical."

Workman wrote that such a change is hardly the frustration of purpose required to rescind the agreement, nor does rescission of the plea agreement properly place the burden of this admitted mistake of law on the state, where it firmly belongs. 

West Virginia Supreme Court of Appeals case number 18-0672

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