No. 13-1123 – State of West Virginia v. Keith D.
                                                                         FILED
                                                                       April 9, 2015
                                                                    RORY L. PERRY II, CLERK
                                                                  SUPREME COURT OF APPEALS
Justice Ketchum, dissenting:                                          OF WEST VIRGINIA




       The defendant got “slip-shucked” by the prosecutor. As a result, he was

sentenced to life in prison, rather than a maximum of ten years per his plea

agreement with the prosecutor.



       Every prosecutor’s case file contains a defendant’s criminal record with a

list of prior convictions.      The prosecutor knows whether he/she will seek a

recidivist information charging the defendant with being a habitual offender

resulting in additional prison time. To the contrary, many times a defendant is

represented by a court-appointed lawyer, as opposed to a public defender or

retained lawyer, who is mostly interested in getting the defendant to plead guilty

and then sending a bill for payment to the State. As a result, the defendant may

agree to a plea with a relatively short prison sentence and ends up being committed

to the penitentiary for life.



       It is extremely unfair for the State to agree to a maximum sentence and not

reveal that it will seek additional prison time soon after the defendant pleads guilty.
A deal is a deal. The State should not be allowed to entice a defendant to plead

guilty by agreeing to a plea bargain without informing the defendant that it will

seek a recidivist information which will result in more prison time.



      We should adopt the court-made law of other states which requires the

prosecution to notify the defendant that the State is seeking additional, habitual

offender sentencing before the defendant pleads guilty under the terms of a written

plea bargain agreement. See People v. Brown, 492 Mich. 684, 822 N.W.2d 208

(2012); State v. Hayes, 423 So.2d 1111 (La. 1982). This is the fair approach rather

than the “tricky” approach approved by the majority opinion.

      This defendant got “hoodwinked.” As a result, the defendant will have

plenty of time to think about it while serving his life sentence.

      I dissent.
