          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
                             __________
                                                                      FILED
                                No. 17-0208                        June 1, 2018
                                ___________                          released at 3:00 p.m.
                                                                 EDYTHE NASH GAISER, CLERK
                                                                 SUPREME COURT OF APPEALS
                             January 2018 Term                        OF WEST VIRGINIA




                         STATE OF WEST VIRGINIA,
                                Respondent

                                     v.

                         GLEN EARNEST BLACKA,
                                Petitioner


          _____________________________________________________
                 Appeal from the Circuit Court of Mineral County
                     The Honorable Lynn A. Nelson, Judge
                            Civil Action No. 15-F-86

                         VACATED AND REMANDED

         _______________________________________________________
                           Submitted: May 9, 2018
                             Filed: June 1, 2018

Ramon Rozas III, Esq.                     Patrick Morrisey, Esq.
Rozas Law Office, LLC                     Attorney General
Cumberland, Maryland                      Shannon Frederick Kiser, Esq.
Counsel for Petitioner                    Assistant Attorney General
                                          Mary M. Downey, Esq.
                                          Assistant Attorney General
                                          Charleston, West Virginia
                                          Counsel for the State




CHIEF JUSTICE WORKMAN delivered the Opinion of the Court
                               SYLLABUS BY THE COURT



               1.   “Cases involving plea agreements allegedly breached by either the

prosecution or the circuit court present two separate issues for appellate consideration: one

factual and the other legal. First, the factual findings that undergird a circuit court’s ultimate

determination are reviewed only for clear error. These are the factual questions as to what

the terms of the agreement were and what was the conduct of the defendant, prosecution, and

the circuit court. If disputed, the factual questions are to be resolved initially by the circuit

court, and these factual determinations are reviewed under the clearly erroneous standard.

Second, in contrast, the circuit court’s articulation and application of legal principles is

scrutinized under a less deferential standard. It is a legal question whether specific conduct

complained about breached the plea agreement. Therefore, whether the disputed conduct

constitutes a breach is a question of law that is reviewed de novo.” Syl. Pt. 1, State ex rel.

Brewer v. Starcher, 195 W.Va. 185, 465 S.E.2d 185 (1995).



               2. “When a defendant enters into a valid plea agreement with the State that is

accepted by the trial court, an enforceable ‘right’ inures to both the State and the defendant

not to have the terms of the plea agreement breached by either party.” Syl. Pt. 4, State v.

Myers, 204 W.Va. 449, 513 S.E.2d 676 (1998).




                                                i
              3. “Whenever the State violates a sentencing neutrality provision of a plea

agreement, the violation seriously affects the fairness, integrity and public reputation of the

proceeding.” Syl. Pt. 8, State v. Myers, 204 W.Va. 449, 513 S.E.2d 676 (1998).



              4. “When a plea agreement has been breached by the State, it is the province

of this Court, or the trial court in the first instance, and not the defendant, to decide whether

to grant specific performance of the plea agreement or permit withdrawal of the guilty plea.”

Syl. Pt. 9, State v. Myers, 204 W.Va. 449, 513 S.E.2d 676 (1998).




                                               ii
Workman, Chief Justice:


              Glen Earnest Blacka (hereinafter “the petitioner”) appeals an order of the

Circuit Court of Mineral County, West Virginia, sentencing him to ten to twenty years for

each of three sexual abuse convictions, with the sentences to be served consecutively.

Pursuant to a plea agreement, the State of West Virginia (hereinafter “the State”) agreed to

remain silent at sentencing; however, during the sentencing hearing, the State ultimately

recommended to the circuit court that consecutive sentences be imposed. Upon review of

the appendix record, arguments of counsel, and applicable precedent, this Court vacates the

sentencing order and remands for further proceedings consistent with this opinion.



                            I. Factual and Procedural History

              On May 4, 2015, the Mineral County Grand Jury returned an indictment

charging the petitioner with multiple counts of sexual assault, incest, and sexual abuse

inflicted upon his three step-daughters. The petitioner pled guilty to three counts of the

felony offense of sexual abuse by a parent, guardian, or custodian on October 4, 2016.

Pursuant to a plea agreement, the State agreed to dismiss the remaining charges and “remain

silent on a recommendation at sentencing.”




                                             1
             Despite its agreement to remain silent, the State recommended the imposition

of consecutive sentences during a February 13, 2017, sentencing hearing. The following

exchange occurred at that hearing:


             MR. PANCAKE [Prosecuting Attorney]: And the State is of the
             opinion that Mr. --

             MR. ROZAS [Petitioner’s Attorney]: Objection.

             THE COURT: About?

             MR. ROZAS: With the plea agreement, he’s not allowed to
             express an opinion, Your Honor. He was going to remain silent
             at sentencing.

             MR. PANCAKE: But –

             THE COURT: Well, he can comment on what he said. He’s
             not making any recommendations.

             MR. PANCAKE: Right. I’m just –

             MR. ROZAS: Okay, Your Honor, as long as he doesn’t make
             a recommendation as whether he thinks probation is appropriate
             or not or what the sentence should be.

             THE COURT: All right. Do you have anything else, Mr.
             Pancake.

             MR. PANCAKE: Well, just a couple comments, Judge. In the
             [c]ourt system, we see heinous cases. And they unfortunately
             occur, and they occur an often – a quite often amount for those
             that are in the legal system. I do believe that this is one of the
             more heinous cases that we’ve come across in recent years,
             Judge.

             The [c]ourt has heard comments from the victims in this case –
             which I won’t comment any further on those. I will not make

                                             2
              any further comments on the case. What the State would
              recommend, though, however, Judge, is based upon what has
              occurred –

              MR. ROZAS: Objection.

              THE COURT: I have an objection. Go ahead, Mr. Rozas. You
              said you had some arguments.

              MR. ROZAS: Thank you.

              THE COURT: You agreed to stand silent, I’ll listen to his
              argument.

              MR. PANCAKE: I was just going to say – recommend that they
              run consecutive and not concurrent.

              MR. ROZAS: Objection, Your Honor.

              THE COURT: Okay, I’m not listening to what the State said
              there.

              MR. ROZAS: Thank you, Your Honor.



              On February 22, 2017, the circuit court imposed consecutive sentences of ten

to twenty years for each count and remarked upon “a lot of rumors and speculations” about

things occurring “up in Blackaville.” The petitioner appeals, contending the State breached

the plea agreement by failing to remain silent at sentencing and he should have the right to

elect between withdrawing his guilty plea or having a new trial judge sentence him. He

further asserts that the circuit court’s comments regarding rumors and speculation constitute

reversible error. Based upon this Court’s decision to vacate the sentencing order and remand

on the issue of the breach of the plea agreement, we do not address the petitioner’s

                                             3
assignment of error regarding the circuit court’s allegedly inappropriate reliance upon

innuendo and rumors.



                                  II. Standard of Review

              In syllabus point one of State v. Wilson, 237 W.Va. 288, 787 S.E.2d 559

(2016), this Court explained the standard of review for matters involving an alleged breach

of a plea agreement:

                      “‘Cases involving plea agreements allegedly breached by
              either the prosecution or the circuit court present two separate
              issues for appellate consideration: one factual and the other
              legal. First, the factual findings that undergird a circuit court’s
              ultimate determination are reviewed only for clear error. These
              are the factual questions as to what the terms of the agreement
              were and what was the conduct of the defendant, prosecution,
              and the circuit court. If disputed, the factual questions are to be
              resolved initially by the circuit court, and these factual
              determinations are reviewed under the clearly erroneous
              standard. Second, in contrast, the circuit court’s articulation and
              application of legal principles is scrutinized under a less
              deferential standard. It is a legal question whether specific
              conduct complained about breached the plea agreement.
              Therefore, whether the disputed conduct constitutes a breach is
              a question of law that is reviewed de novo.’ Syl. Pt. 1, State ex
              rel. Brewer v. Starcher, 195 W.Va. 185, 465 S.E.2d 185
              (1995).” Syllabus point 1, State v. Shrader, 234 W.Va. 381, 765
              S.E.2d 270 (2014).

Cognizant of that dual approach as our standard of review, we address the contentions of the

parties.



                                       III. Discussion

                                              4
              The petitioner argues that the State breached the plea agreement by failing to

remain silent at sentencing and that he consequently is entitled to either specific performance

of the agreement before a different sentencing judge or withdrawal of the guilty plea. This

Court has been unequivocal in its commitment to the inviolability of plea agreements,

recognizing that “[b]ecause a plea agreement requires a defendant to waive fundamental

rights, we are compelled to hold prosecutors and courts to the most meticulous standards of

both promise and performance.” Brewer, 195 W.Va. at 192, 465 S.E.2d at 192; see also

Syllabus, State ex rel. Gray v. McClure, 161 W.Va. 488, 242 S.E.2d 704 (1978) (“A

prosecuting attorney or his successor is bound to the terms of a plea agreement once the

defendant enters into a plea of guilty or otherwise acts to his substantial detriment in reliance

thereon.”). In syllabus point four of State v. Myers, 204 W.Va. 449, 513 S.E.2d 676 (1998),

this Court again emphasized the significance of a plea agreement between a defendant and

the State and held: “When a defendant enters into a valid plea agreement with the State that

is accepted by the trial court, an enforceable ‘right’ inures to both the State and the defendant

not to have the terms of the plea agreement breached by either party.” Syllabus point eight

of Myers continued the exposition upon the importance of a plea agreement, providing:

“Whenever the State violates a sentencing neutrality provision of a plea agreement, the

violation seriously affects the fairness, integrity and public reputation of the proceeding.”



              With specific reference to the failure of the State to remain silent after

promising to do so, this Court observed that a plea agreement may be breached “where the

                                               5
State, after having agreed to remain neutral as to the sentence to be imposed, fails to do so.”

Duncil v. Kaufman, 183 W.Va. 175, 183, 394 S.E.2d 870, 878 (1990). Engaging in an

illuminating analysis of plea agreement breaches in Santobello v. New York, 404 U.S. 257

(1971), the United States Supreme Court found that the State had breached its agreement to

remain silent at the defendant’s sentencing and explained “when a plea rests in any

significant degree on a promise or agreement of the prosecutor, so that it can be said to be

part of the inducement or consideration, such promise must be fulfilled.” Id. at 262. As in

the present case, the State in Santobello asserted that the breach did not affect the judge’s

decision regarding the defendant’s ultimate sentence and that the sentence should

consequently not be disturbed. The United States Supreme Court adamantly disagreed,

stating:

              [The sentencing judge] stated that the prosecutor’s
              recommendation did not influence him and we have no reason
              to doubt that. Nevertheless, we conclude that the interests of
              justice and appropriate recognition of the duties of the
              prosecution in relation to promises made in the negotiation of
              pleas of guilty will be best served by remanding the case to the
              state court for further consideration. . . . We emphasize that this
              is in no sense to question the fairness of the sentencing judge;
              the fault here rests on the prosecutor, not on the sentencing
              judge.

Id. 262-63 (emphasis supplied).



              Based upon that incisive reasoning, we find no merit to the State’s assertion

in the present case that the sentence should remain undisturbed simply because the circuit


                                              6
court indicated that it was “not listening” to the prosecutor’s argument about consecutive

sentencing. See also United States v. McCray, 849 F.2d 304, 305-06 (8th Cir. 1988) ( “The

fact that the district court stated that the government’s remark did not influence its decision

does not ameliorate the government’s breach.”). The State in this case further argues that any

breach is immaterial and did not contribute to the sentence imposed, thereby essentially

constituting harmless error, if error at all. In Myers,1 this Court examined the requirement

for the State “to prove beyond a reasonable doubt that its breach of the plea agreement did

not prejudice the outcome of the proceeding.” 204 W.Va. at 463, 513 S.E.2d at 690. We

concluded that “[m]erely showing that the trial court would have sentenced a defendant upon

the same terms, even without such a breach, will not satisfy the State’s burden.” Id.



              This conclusion is entirely consistent with the analysis in State v. Urista, 293

P.3d 738 (Kan. 2013). In that case, the Supreme Court of Kansas premised its holdings upon

the principle that a defendant is denied due process when a plea agreement is breached by

the State’s failure to stand silent at sentencing. “This is true even if the sentencing judge was

not influenced by the State’s presentation at sentencing.” Id. at 751.



       1
        Unlike the situation in the present case, the defendant in Myers had not objected to
the breach; thus, this Court was required to engage in an evaluation of the plain error doctrine
and its applicability. See Myers, 204 W.Va. at 455, 513 S.E.2d at 682. Although the plain
error evaluation is not necessary in the present case due to the petitioner’s timely objection,
the ultimate discussion in Myers with regard to the harmless error rule is applicable to our
analysis of this case.


                                               7
              Accordingly, if the State breaches its plea agreement promise —
              and the defendant raises a timely objection to the breach —
              such a breach will constitute harmless error only if a court can
              say beyond a reasonable doubt that the State’s promise had little,
              if any, influence on the defendant’s decision to enter into the
              plea agreement.

Id. (citations omitted); see also Puckett v. U.S., 556 U.S. 129, 140 (2009) (discussing

application of harmless error principles to breach of plea agreement).



              Similarly, in State v. Birge, 638 N.W.2d 529 (Neb. 2002), the Supreme Court

of Nebraska analyzed the reasoning of Santobello and explained: “[O]nce the State has

violated the plea agreement by failing to remain silent at sentencing, the violation cannot be

cured either by the prosecutor’s offer to withdraw the comments or by the trial court’s

statement that it will not be influenced by the prosecutor’s comments in imposing sentence.”

Id. at 535-36. “Instead, relief must be afforded by either withdrawal of the plea or specific

performance of the plea agreement in the form of sentencing before a different judge.” Id.

at 536.



              With specific regard to the remedy for the State’s breach of a plea agreement,

this Court has explained 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.” Brewer, 195 W. Va. at 189, 465 S.E.2d at 189, syl. pt 8. The ultimate decision of

which alternative is most appropriate is to be made by this Court, rather than a defendant.


                                              8
In syllabus point nine of Myers, this Court explained: “When a plea agreement has been

breached by the State, it is the province of this Court, or the trial court in the first instance,

and not the defendant, to decide whether to grant specific performance of the plea agreement

or permit withdrawal of the guilty plea.” See also McCray, 849 F.2d 304, 305-06 (8th Cir.

1988) (“When the government breaches its promise to remain silent at sentencing,

resentencing is required.”); State v. Peterson, 293 P.3d 730, 738 (Kan. 2013) (holding that

resentencing before different judge remedy for State’s breach of plea agreement); Brewer,

195 W.Va. at 198 n.18, 465 S.E.2d at 198 n.18 (“While the choice of remedy is normally left

to the discretion of the sentencing court, see Santobello, 404 U.S. at 263, 92 S.Ct. at 499, 30

L.Ed.2d at 433, this Court has repeatedly expressed a preference for specific performance of

the agreement rather than vacating the plea.”).



               As emphasized in Urista, the “decision to direct a new sentencing hearing

before a different judge in no way reflects on the district court judge who originally

sentenced [the defendant].” 293 P.3d at 751. It is not the judge who has committed the

violation. “The error here rests squarely with the State. The appearance of judicial neutrality

will be best served if the new sentencing hearing is conducted by a different judge.” Id. As

this Court articulated in Myers, decisions regarding plea bargain violations must be guided

by the “scrupulous standard applicable to prosecutors and courts throughout the acceptance

and implementation of the plea agreement.” 204 W.Va. at 458, 513 S.E.2d at 685. The plea

agreement “phase of criminal justice, and the adjudicative element inherent in accepting a

                                                9
plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due

in the circumstances.” Santobello, 404 U.S. at 262.



               This Court finds that the appropriate remedy for the breach of the plea

agreement in this case is specific performance of the agreement in a new sentencing hearing

before a different judge. We further emphasize the atrociousness of the prosecutor’s actions

in this case. Despite the multiple objections by counsel for the petitioner, the prosecutor

insisted upon injecting comments clearly prohibited by the plea agreement. This is conduct

incongruous with the duties of an officer of the court. This Court has referenced a

“prosecutor as an officer of the Court” in several contexts. State v. Schlatman, 233 W.Va.

84, 90, 755 S.E.2d 1, 7 (2014). We have delineated “the prosecutor’s duty to set a tone of

fairness and impartiality, and while he may and should vigorously pursue the State’s case,

in so doing he must not abandon the quasi-judicial role with which he is cloaked under the

law.” State v. Boyd, 160 W.Va. 234, 242-43, 233 S.E.2d 710, 717 (1977); see also State v.

Wilson, 6 P.3d 637, 639 (Wash. Ct. App. 2000) (“Plea agreements concern fundamental

rights of the accused, and invoke due process considerations that require a prosecutor to

adhere to the terms of the agreement.” (footnote omitted)); State v. Tourtellotte, 564 P.2d

799, 802 (Wash. 1977) (“If a defendant cannot rely upon an agreement made and accepted

in open court, the fairness of the entire criminal justice system would be thrown into

question.”).



                                             10
              Given the prosecutor’s unyielding and improper persistence in the prior

sentencing hearing, it would be inappropriate to permit that prosecutor to participate in the

sentencing hearing upon remand. Consequently, another prosecutor should manage this

sentencing matter upon remand.



                                      IV. Conclusion

              Based upon the foregoing, this Court vacates the order sentencing the petitioner

and remands this matter for the appointment of a new judge to sentence the petitioner

pursuant to his guilty plea.



                                                                    Vacated and Remanded.




                                             11
