Brooks v. Narick , 161 W. Va. 415 ( 1978 )

Harshbarger, Justice:

James Michael Brooks was indicted in Marshall County for delivery of marijuana. On the scheduled trial date a plea bargain was made whereby he agreed to (1) plead guilty, (2) go to Huttonsville Correctional Center for a sixty day evaluation and diagnostic study, (3) begin his confinement on July 12, 1976, and (4) pay court costs of $656.90.

The state agreed to drop all other charges pending against him in Marshall County and in the prosecuting attorney’s words, “... subject to the report from Hut-tonsville, in the event that, that report is favorable, the State will be inclined and would recommend probation. In the event the report is unfavorable, then the State will recommend that the Court take whatever action, whether it be sentence or any further action by way of a fine that the Court feels appropriate at the time....” (Our emphasis.)

Brooks then pled guilty, was sent to Huttonsville, and on September 17, 1976, returned to court for sentencing. Both court and prosecutor considered the Huttonsville report to be neither favorable nor unfavorable. His counsel’s motion for probation was denied when an assistant prosecuting attorney affirmatively opposed it.

Brooks then moved to withdraw his guilty plea because the government had breached its part of the agreement, which motion was granted. Then seven new indictments arising out of charges pending at the time the plea bargain was made were returned against him. He moved the court to enforce specific performance of the plea bargain and to dismiss the seven new indictments. The court overruled both motions, denied defendant’s motion to reconsider, and defendant petitions for prohibition.

The issue is, can Brooks get specific performance of the agreement?

An elementary principle of our criminal law is that when an agreement between a prosecuting attorney and a defendant has been entered into and approved by the court, the agreement should ordinarily be upheld if the accused has fulfilled his part of the agreement. State v. Ward, 112 W. Va. 552, 165 S.E 803 (1932). “The courts treat such promises as pledges of the public faith. Commonwealth v. St. John, 173 Mass. 569.” 112 W. Va. at 554, 165 S.E. at 805. See also, United States v. Carter, 454 F.2d 426 cert. denied 417 U. S. 933 (1972); and U. S. v. Paiva, 294 F.Supp. 742 (D.D.C. 1969).

All state and federal decisions we have examined, have held that where a defendant pleads guilty as part of a plea bargain, and the prosecution breaches the agreement, defendant should be allowed to withdraw his plea. See, e.g., Dugan v. U. S., 521 F.2d 231 (5th Cir. 1975), White v. Gaffney, 435 F.2d 1241 (10th Cir. 1971); People v. Bannan, 364 Mich. 471, 110 N.W.2d 673 (1961); Crossin v. State, 262 So.2d 250 (Fla. App. 1972); People v. Caskey, 4 Ill. App. 3d 920, 282 N.E.2d 250 (1972); State ex rel. Clancey v. Coiner, 154 W. Va. 857, 179 S.E.2d 726 (1971). We have been cited to no cases contra., nor have we found any.

In Santobello v. New York, 404 U. S. 257 (1971), defendant pled not guilty to two felonies, then pursuant to a plea agreement he pled guilty to a lesser included offense on condition that the prosecutor would make no recommendation about his sentence. A new prosecutor appeared at sentencing and recommended the maximum sentence. The United States Supreme Court found that the government had breached its agreement and remanded the case to New York courts for appropriate remedy, be it specific performance of the agreement, or the opportunity for petitioner to withdraw his guilty plea and go to trial.

It is apparent from the Santobello decision that the defendant may be entitled to specific performance. In Jordan v. Commonwealth, 217 Va. 57, 225 S.E.2d 661 (1976), the Supreme Court of Virginia held that a defendant is entitled to specific performance where the prosecutor procured an indictment that violated a plea bargain performed by the defendant. The court said:

In the case under review, we are powerless to restore the parties to the position they occupied at the time of the preliminary hearing. Following the plea bargain, Jordan entered a plea of guilty to assault and battery. By so doing he admitted his presence at the scene of the burglary and robbery and admitted, although to a lesser degree, his involvement. This action very effectively frustrated any defense that he might have interposed to the warrant or any subsequent indictments for offenses embraced within the warrant. Further, the defendant accepted the judgment of the district court and served the term of imprisonment imposed upon him. He has fully performed his part of the agreement, and no order that we can enter will undo that performance, or restore to him the status he occupied on the day of his preliminary hearing.

225 S.E.2d at 664.

Similarly, in Jones v. Commonwealth, 217 Va. 248, 227 S. E. 2d 701 (1976), the court held that it was powerless to restore defendant to his position before the plea bargain was entered into and thus it decreed specific performance. In both of the cited cases, the court emphasized that the defendant could not be restored to his former position by withdrawal of the guilty plea.

Brooks also cannot be restored to his former position. He has paid court costs of $656.90, and while this sum of money could be restored to him by the state, the 60 days he spent at Huttonsville cannot.

We hold that withdrawal of his guilty plea was a coerced act caused by the state’s breach of the plea bargain, and Brooks is entitled to reinstatement of the guilty plea and specific performance of the agreement. We agree with Justice Douglas’ concurring opinion in Santobello:

In choosing a remedy, however, a court ought to accord a defendant’s preference considerable, if not controlling, weight inasmuch as the fundamental rights flouted by a prosecutor’s breach of a plea bargain are those of a defendant, not of the State.

404 U. S. at 267.

Thus, we remand the case to the lower court where relator will at his option, elect to have his plea reinstated with performance by the state of its agreement with him, or be tried on his not guilty plea. If he chooses to let the not guilty plea stand, he can be tried on all the original charges, including those the state was to dismiss under the agreement. See Santobello, footnote 2 at 263; U. S. v. Wells, 430 F.2d 225 (9th Cir. 1970); U. S. ex rel. Williams v. McMann, 436 F.2d 103 (2d Cir. 1970) cert. denied, 402 U.S. 914 (1970), Kiefer v. State, 295 So.2d 688 (1974); and Miller v. State, 272 Md. 249, 322 A.2d 527 (1974).

For the foregoing reasons the writ is granted as moulded.

Writ moulded, and granted as moulded.