        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                  January 2016 Term

                                                                      FILED

                                                                   June 2, 2016

                                                                     released at 3:00 p.m.
                                      No. 15-0578                  RORY L. PERRY, II CLERK

                                                                 SUPREME COURT OF APPEALS

                                                                      OF WEST VIRGINIA





                          STATE OF WEST VIRGINIA,

                           Plaintiff Below, Respondent,



                                           V.



                               JESSICA MAY WILSON,

                              Defendant Below, Petitioner.




                Appeal from the Circuit Court of Kanawha County

                        Honorable Louis H. Bloom, Judge

                          Criminal Action No. 14-F-228


                                     AFFIRMED



                               Submitted: April 20, 2016
                                 Filed: June 2, 2016

Charles R. Hamilton                         Patrick Morrisey
Charleston, West Virginia                   Attorney General
Attorney for the Petitioner                 Laura Young
                                            Assistant Attorney General
                                            Zachary Viglianco
                                            Assistant Attorney General
                                            Charleston, West Virginia
                                            Attorneys for the Respondent

JUSTICE DAVIS 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).” Syllabus point 1, State v.

Shrader, 234 W. Va. 381, 765 S.E.2d 270 (2014).




                                                i
Davis, Justice:

              Jessica May Wilson (“Wilson”), entered a plea of guilty in the Circuit Court

of Kanawha County to a charge of murder in the first degree. In exchange for the plea, the

State agreed to dismiss numerous related charges against her, including charges of burglary,

conspiracy, robbery, and grand larceny. The State also agreed to stand silent at sentencing,

although it specifically “reserve[d] the right to cross-examine witnesses offered in mitigation

of punishment and to correct any factual inaccuracies which come to the attention of the

court or which are contained in the pre-sentence investigation report.”



              At the sentencing hearing, the State made no recommendation with respect to

whether the court should attach a recommendation of mercy to its sentence. However, the

prosecutor did dispute Wilson’s version of events in certain respects, arguing to the circuit

court that she was attempting to minimize her involvement in the crime and to present herself

as a hapless victim of her co-defendant, the actual killer. The circuit court, after making

clear that it was fully aware of the facts and circumstances of the case and had read all of the

relevant reports, imposed a sentence of life imprisonment without mercy. Thereafter, Wilson

filed both a motion to reduce sentence and a motion to void the plea agreement, contending

that the actions of the prosecutor violated the terms of the plea agreement, specifically, the

State’s agreement to stand silent at sentencing.1 The circuit court denied the motions, finding

              1
                  Wilson also alleged that the circuit court had failed to give proper weight to a
                                                                                   (continued...)

                                                 1

that the State had not breached the agreement and that, in any event, the prosecutor’s

statements had not influenced the court’s decision.



               Upon careful examination of the parties’ briefs and oral arguments, the

appendix record, and the applicable law, we affirm.



                                                I.


                         FACTUAL AND PROCEDURAL HISTORY


               On or about January 4, 2014, Wilson and her codefendant, Timothy Paul Shafer

(“Shafer”), viciously murdered Nancy Lynch-Burdette (“Ms. Lynch-Burdette”). The two had

planned in advance to accost Ms. Lynch-Burdette at her home and rob her, considering her

to be an “easy mark” because she was sixty-six years old, weighed only one hundred pounds,

lived alone, and had been robbed on earlier occasions but had never made a report to the

police.



               Wilson and Shafer walked to Lynch-Burdette’s home, Wilson armed with a

knife and Shafer with a toy gun. While Ms. Lynch-Burdette was outside putting her basset

hound on a leash, the conspirators forced her (and the dog) inside. They demanded money

and drugs, which Ms. Lynch-Burdette did not have. Further, she could not remember the

               1
                   (...continued)
variety of mitigating factors offered by her counsel, a claim that is not at issue in this appeal.

                                                2

correct sequence of numbers in the PIN code for her debit card. This, according to Wilson,

caused Shafer to become enraged and, thereafter, although the exact degree of Wilson’s

participation is somewhat unclear,2 the conspirators beat and stabbed their victim to death.3



              After killing Ms. Lynch-Burdette, Wilson and Shafer took items of value from

her home, including jewelry, pills, guns, and a camera. They disposed of the knife and toy

gun in an area near the victim’s home. In the days that followed, Shafer and his girlfriend,

Megan Hughes (“Hughes”), and possibly Wilson as well,4 kept returning to the home to

search for more valuables, ultimately including a television, jewelry, checks (which were

then written out to Shafer), mail, and the victim’s two cars. While they continued to plunder

Ms. Lynch-Burdette’s home as though it were their personal piggy bank, they wrapped her

body in a tarp, presumably so they would not have to look at it as it decomposed.




              2
                Although Wilson stated, both at her plea hearing and at her sentencing, that
it was Shafer, acting alone, who killed Ms. Lynch-Burdette, police statements indicate,
variously, that Wilson held the victim while Shafer stabbed her to death; that she took several
swings of the knife herself, at Shafer’s insistence, but succeeded only in waving the knife
around and “glancing” the victim; and that she may have stabbed the victim herself eight or
nine times.
              3
              An autopsy revealed that Ms. Lynch-Burdette had been stabbed at least
nineteen times.
              4
               The record is unclear as to whether Wilson ever returned to Ms.
Lynch-Burdette’s home after the night of the murder. Without question, however, she knew
that Shafer and Megan Hughes kept going back to plunder the house.

                                              3

              Finally, some three weeks after the murder, Ms. Lynch-Burdette’s body was

found after a neighbor reported to police that she had not seen Ms. Lynch-Burdette for a

significant period of time. Her dog also was found dead, having been shut in an upstairs

portion of the home and left to starve to death.



              Acting on a tip from a cooperating individual, the police quickly focused on

Wilson, Shafer, and Hughes as suspects in the crime. Wilson gave an initial statement in

which she admitted that Shafer had told her of his plan to rob someone and asked her to get

rid of some jewelry for him; other than that, Wilson claimed, she had no knowledge or

information as to the death of Ms. Lynch-Burdette. In her second statement, however,

Wilson gradually admitted more and more about her role in the crime: being with Shafer in

the victim’s home, holding the victim while Shafer stabbed her, waving the knife around at

Shafer’s insistence, and finally that “she may have stabbed the victim eight or nine times.”5



              On May 16, 2014, Wilson was arrested and subsequently indicted, together

with Shafer, on eight counts including murder, conspiracy, burglary, robbery, and grand

larceny. Shafer also was charged, together with Hughes, on three additional counts of

daytime burglary; and Hughes was charged as an accessory after the fact to murder.



              5
                In Shafer’s statement, he claimed that Wilson alone had stabbed the victim,
after instructing Shafer to “look away.”

                                              4

Thereafter, following extended proceedings involving the question of Wilson’s competency,6

she agreed to plead guilty to first degree murder, in exchange for which the State agreed to

dismiss the remaining seven counts against her and “to stand silent as to sentencing,

however, the Office of the Prosecuting Attorney does reserve the right to cross-examine

witnesses offered in mitigation of punishment and to correct any factual inaccuracies which

come to the attention of the court or which are contained in the pre-sentence investigation

report.”



              At a plea hearing held on April 10, 2015, Wilson attempted to minimize her

role in the death of Ms. Lynch-Burdette:

              THE COURT: All right. Tell me what happened: who, what,

              when and where.


              THE DEFENDANT: I knew [Shafer] was going over to rob

              her.


              THE COURT: Okay. [Shafer] was going to rob who?


              THE DEFENDANT: Nancy Lynch[-Burdette].


              THE COURT: Okay. And what did you do about it?


              THE DEFENDANT: Nothing. He told me if I say anything,

              that he’ll do the same thing to me.


              THE COURT: You were there?



              6
            Following a six-month period of treatment at Sharpe Hospital, Wilson was
deemed competent to stand trial.

                                             5

             THE DEFENDANT: Yes.


             . . . .


             THE COURT:         And what action, if any, did you take

             specifically?


             THE DEFENDANT: He – I don’t know. (Thereafter, following

             a conference between defendant and counsel). Oh, I went into

             the house with [Shafer], and then –


             THE COURT: You guys broke in; you weren’t invited in?


             THE DEFENDANT: He walked in behind her.


             THE COURT: Okay. But you were not invited in?


             THE DEFENDANT: Right. And then he started hitting on her,

             and then he stabbed her.


             THE COURT: And you knew the intention was to rob the
             house; is that correct?

             THE DEFENDANT: Right. But I didn’t know that he was
             going to kill her.



             The court was satisfied that Wilson’s allocution was a sufficient factual basis

for her plea of guilty to felony murder, although the State expressed some qualms:

             MR. GIGGENBACH: Well, for the purpose of this plea hearing
             I believe that’s sufficient to establish the elements of felony
             murder. If this were to go to trial, the State would present
             different evidence, more inculpatory evidence of the defendant,
             however.

             THE COURT: All right. Well, we’ll take that up at the
             appropriate time at disposition.

                                            6

              Wilson’s pattern of minimizing her involvement continued with the submission

of her Sentencing Memorandum. Her counsel stated, inter alia, that the only reason she was

even present at the scene of the crime was that she was afraid of her codefendant, Shafer; that

“[Wilson] did not stab Nancy Lynch[-Burdette]”; that she had obtained none of the proceeds

of the robbery, burglary, and grand larceny; and that the only reason she even touched the

murder weapon was that “Shafer threw the knife towards [Wilson] and screamed at her to

stab the victim. [Wilson] doesn’t believe she touched the victim with the knife.”



              At Wilson’s sentencing hearing on May 7, 2015, the pattern continued.

Defense counsel first spoke at length about her disadvantaged upbringing, her addiction to

drugs, which resulted in the loss of her children, her low IQ and illiteracy, and her passive

and submissive personality. Defense counsel then launched into the murder itself, which he

described as follows:

                     [O]n January 4, Wilson learned that the male guest
              staying at her house intended to, to go out and to rob somebody
              of drugs and money. Knowing this, Wilson agreed to
              accompany this male. She traveled to 2327 Jefferson Avenue in
              St. Albans. This was her first time ever going to this house,
              having no idea who lived there, just knowing the intention of her
              male guest.

                     While there, a woman died. And Wilson was scared to
              death. She left this home and never returned after this January
              4th night.




                                              7

              As counsel continued in this vein, the court finally interrupted, telling counsel

that “you’re telling me things that are not supported by anything in the record before

me . . . you need to confine yourself to what’s in the record . . . [u]nless you want to put on

a witness.” Counsel declined this opportunity and went on, once again straying into the

realm of speculation (as to why the police let Wilson go home even after she had

incriminated herself) and once again being admonished by the court to confine his argument

to information contained in the record.



              Given an opportunity to speak on her own behalf, Wilson again claimed that

“I knew [Shafer] was going to rob her, but I didn’t know that he was going to kill her. . . ,”

and “I didn’t go back to the house, I didn’t step over her body like they did.”



              Called upon for the State’s comment, the prosecutor reminded the court that

the plea agreement required the State to stand silent as to sentencing, and therefore “[w]e’re

not going to say anything about mercy or no mercy.” The prosecutor continued that he

would, however, correct factual inaccuracies in defense counsel’s presentation: “I’m not

saying they’re intentional – but a sort of whitewashing of the facts.” Over Wilson’s

objection, the court permitted the prosecutor to refer to her earlier admission that she had




                                              8

stabbed the victim,7 and further her admission that she had gone back to the victim’s house

after the murder to get the victim’s car.



              Following a victim impact statement from Ms. Lynch-Burdette’s cousin, Judy

Clary, the court issued its judgment. Initially, the circuit court noted that it previously had

reviewed the statements to which the prosecutor had referred:

              I can’t imagine, whichever version we’re to believe from you,
              that you stood by and idly watched someone stab another human
              being 19 times, left them there to bleed out without contacting
              anybody to provide any help or first aid, allowing them to bleed
              to death in a slow and miserable manner, or whether you
              actively participated by stabbing as you indicated in the stab – in
              the statements that you [gave]. Neither way is defensible.


Additionally, the court found Wilson’s mitigating factors to be unconvincing, as the record

indicated that many of her problems were aggravated by her use of drugs and alcohol.

Although noting that she had only one prior offense on her criminal record, the court stated

that “you were continually violating the law and hurting those around you. I don’t find that

your conduct in this matter in any way . . . makes you eligible for life with mercy.”8 The

              7
                  According to the prosecutor,

              she stated to Detective Elkins with the St. Albans Police Department – we
              have it on video. If you look at Dr. Smith’s report, it states it as well. That she
              admitted to stabbing four to five times. And I could cue it up and show you
              “three or four times” once she says and then “one to two more.”
              8
                  The court earlier had alluded to the Pre-Sentence Investigation Report, which
                                                                                  (continued...)

                                                 9

court’s sentencing order, imposing a sentence of life without mercy, was entered the

following day, May 8, 2015.



              Thereafter, on June 23, 2015, Wilson filed a motion to reduce sentence and a

motion to void her plea, asserting that the prosecutor’s statements at sentencing violated the

State’s agreement to stand silent. By separate order entered on July 30, 2015, the court

denied the motion, finding first that, under the plea agreement, the prosecutor was entitled

to correct factual errors, and finding further that, in any event, it “[didn’t believe that the

State [had] evidenced any argument that I had not already concluded from my complete,

thorough evaluation of all facts and circumstances available to the Court in reaching an

appropriate sentence in the case.” From these adverse rulings, Wilson appeals to this Court.



                                              II.


                                STANDARD OF REVIEW


              It is well established in this Court’s precedents that,

                      “[c]ases involving plea agreements allegedly breached by
              either the prosecution or the circuit court present two separate


              8
               (...continued)
contained information that Wilson was a high Level of Service/Case Management Inventory
(“LS/CMI”) risk level, and further that she “accepted no responsibility for the crime [of]
which she has been convicted and expressed little remorse . . . [and] shows little regard for
human life.” The LS/CMI is an assessment system that measures and offender’s risk and
need factors for purposes such as sentencing.

                                              10

               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).

Syl. pt. 1, State v. Shrader, 234 W. Va. 381, 765 S.E.2d 270 (2014).



                                               III.

                                        DISCUSSION

               In this Court’s recent decision in Buffey v. Ballard, 236 W. Va. 509, 782 S.E.2d

204 (2015), we noted that the vast majority of criminal cases are resolved as a result of guilty

pleas “‘[i]n today’s criminal justice system, therefore, the negotiation of a plea bargain, rather

than the unfolding of a trial, is almost always the critical point for a defendant.’” Id., 236

W. Va. at ___, 782 S.E.2d at 212 (quoting Missouri v. Frye, ___ U.S. ___, ___, 132 S. Ct.

1399, 1407, 182 L. Ed. 2d 379 (2012). Consistent with this acknowledgement, we have long

recognized that “[a]s a matter of criminal jurisprudence, a plea agreement is subject to

principles of contract law insofar as its application insures a defendant receives that to which


                                               11

he is reasonably entitled.” State ex rel. Brewer v. Starcher, 195 W. Va. 185, 192, 465 S.E.2d

185, 192. Accord State v. Spade, 225 W. Va. 649, 695 S.E.2d 879 (2010). Because “[d]ue

process concerns arise in the process of enforcing a plea agreement. . .,” State v. Myers, 204

W. Va. 449, 457, 513 S.E.2d 676, 684 (1998), “[p]ermitting the prosecution to breach a plea

bargaining agreement has been characterized as ‘extremely detrimental to the administration

of justice if it should be established.’” State v. Spade, 225 W. Va. at 659, 695 S.E.2d at 889

(quoting State ex rel. Gray v. MClure, 161 W. Va. 488, 491, 242 S.E.2d 704, 706 (1978)).



              Any ambiguities in a plea agreement will be construed against the State. Syl.

pt. 3, in part, State ex rel. Thompson v. Pomponio, 233 W. Va. 212, 757 S.E.2d 636 (2014)

(rejecting State’s argument that language of plea agreement was ambiguous, and holding that

any ambiguity must be construed against State). Nevertheless, a plea agreement should be

read reasonably, without resort to strained or hyper-technical intrpretatio. See United States

v. Larson, 78 Fed. Appx. 650, 655-56 (10th Cir. 2003); United States v. Little, 14 Fed. Appx.

200, 204 (4th Cir. 2001).



              With these legal principles in mind, we examine the specific language of the

plea agreement at issue in this case:

                      The Office of the Prosecuting Attorney agrees to stand
              silent as to sentencing, however, the Office of the Prosecuting
              Attorney does reserve the right to cross-examine witnesses
              offered in mitigation of punishment and to correct any factual

                                             12

              inaccuracies which come to the attention of the court or which
              are contained in the pre-sentence investigation. The State,
              however, reserves the right to comment at any post-sentencing
              hearings.



              This language is straightforward and unambiguous.9 Given Wilson’s guilty

plea to first degree murder, there were two possible sentences the court could have imposed:

life with mercy and life without mercy.10 The State agreed to not take a position on this issue

and indeed did not take a position. This situation is decidedly different from cases in which

this Court has found that a plea agreement has been violated. See, e.g., State v. Martin, 225

W. Va. 408, 693 S.E.2d 482 (2010) (concluding plea agreement was breached when, after

agreeing to make a non-binding recommendation of probation, prosecutor stated at

sentencing “I find it hard to believe . . . that Mr. Martin could comply with the terms and

conditions of probation. I ask that the court deny any motion for probation or other

alternative sentence”); State v. Myers, 204 W. Va. 449, 513 S.E.2d 676 (finding prosecutor

breached plea agreement by urging court to sentence defendant to life in prison without

mercy, and take into account that crime was committed with use of firearm, despite the

State’s specific agreement to remain silent on these issues).

              9
               See generally Syl. pt. 2, Citynet, LLC v. Toney, 235 W. Va. 79, 772 S.E.2d 36,
38 (2015) (“‘Where the terms of a contract are clear and unambiguous, they must be applied
and not construed.’ Syllabus point 2, Bethlehem Mines Corp. v. Haden, 153 W. Va. 721, 172
S.E.2d 126 (1969).”).
              10
                No one, including Wilson, seems to have even contemplated the possibility
that the court would grant parole.

                                              13

              Wilson argues that, although the prosecutor did not specifically say “don’t

grant mercy,” logic compels the conclusion that, by arguing Wilson was more culpable in the

crime than she was admitting, that is exactly what the prosecutor was urging the court to do.

We disagree. The State had not promised in the plea agreement to stand silent; it had

promised only to stand silent as to sentencing. See United States v. Hawkins, 675 F. Supp. 2d

617, 619 (E.D. Va. 2009) (commenting that “[t]he starting point in the analysis is, of course,

the plain language of the plea provision at issue.”). The State had specifically reserved the

right to “correct any factual inaccuracies which come to the attention of the court. . .,” and

factual inaccuracies filled the air at the sentencing hearing as defense counsel reduced the

horrific death of Nancy Lynch-Burdette to the words, “[w]hile there, a woman died.” When

defense counsel was through with his lengthy remarks, the prosecutor made reference to

specific evidence of record: Wilson’s admissions to police that she herself had stabbed the

victim and that she had returned to the house at some time after the killing. The prosecutor’s

remarks were brief; indeed, much of what he had to say came in response to the circuit

court’s specific questions about what was shown in the autopsy report.11




              11
                As was apparent when the court imposed sentence, one factor that
significantly influenced its decision was the fact that the victim had been stabbed nineteen
times. Even accepting Wilson’s version of events, the court stated, “you stood by and idly
watched someone stab another human being 19 times, left them there to bleed out without
contacting anybody to provide any help or first aid, allowing them to bleed to death in a slow
and miserable manner.”

                                             14

               Additionally, a close review of the record in this case compels the conclusion

that there is “no reasonable possibility that the [alleged] violation contributed to the [sentence

imposed by the court.]” Syl. pt. 2, in part, State v. Frazier, 229 W. Va. 724, 735 S.E.2d 727

(2012). To the contrary, it is clear from a review of the sentencing transcript that the factual

inaccuracies addressed by the prosecutor already were known to the circuit court, which had

admonished defense counsel several times to stick to the facts of record or call a witness, and

who demonstrated a comprehensive familiarity with the police reports, the psychiatric

reports, and the pre-sentence report.12 The circuit court specifically stated that, regardless

of whether Wilson had stabbed the victim herself or stood by watching as Shafer did it,

“neither way is defensible.” The circuit court found her grounds for mitigation to be

self-serving and unavailing, specifically noting that Wilson’s use and abuse of drugs and

alcohol had resulted in her losing her children, and concluding that “I don’t find that your

conduct in this matter in any way near makes you eligible for life with mercy.”



               At the hearing on Wilson’s post-trial motion to void her plea, the circuit court

reviewed the prior proceedings and the arguments of counsel, and concluded that:

                      [s]o I can honestly say that the State’s comments, even if
               I didn’t find that . . . they were entitled to come forth with [a]
               response to correct the factual errors in the case, . . . I don’t
               believe that the State [has] evidenced any argument that I had


               12
              The court had also reviewed the statement of Wilson’s codefendant, Shafer,
who claimed that Wilson alone killed the victim.

                                               15

              not already concluded from my complete, thorough evaluation
              of all facts and circumstances available to th Court in reaching
              an appropriate sentence in the case.

                     Even if I were to completely disregard everything that the
              prosecution said, I would have come to the same conclusion
              based on all the information available to the Court at the time of
              sentencing.



              In summary, the State did not breach its agreement to remain silent as to

sentencing, there were no improper factors considered in the court’s sentencing decision, and

the sentence imposed was well within the court’s discretion and amply justified under the

facts and circumstances of this case. See Syl. pt. 1, in part, State v. Lucas, 201 W. Va. 271,

496 S.E.2d 221 (1997) (“The Supreme Court of Appeals reviews sentencing orders . . . under

a deferential abuse of discretion standard, unless the order violates statutory or constitutional

commands.”).




                                               16

                                          IV.


                                    CONCLUSION


             We affirm the judgment of the Circuit Court of Kanawha County, sentencing

Wilson to life imprisonment without mercy upon her plea of guilty to first degree murder.

Accordingly, we affirm the May 8, 2015, and July 30, 2015, orders of the Circuit Court of

Kanawha County.




                                                                               Affirmed.




                                           17

