                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

State of West Virginia,                                                           FILED
Plaintiff Below, Respondent
                                                                              January 14, 2019
                                                                              EDYTHE NASH GAISER, CLERK
vs.) No. 18-0006 (Pocahontas County 13-F-42(D))                               SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA 

Megan J. Stewart,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
       Petitioner Megan J. Stewart, by counsel Eric M. Francis, appeals the Circuit Court of
Pocahontas County’s December 14, 2017, order dismissing her criminal proceedings following
her successful completion of a drug court program. The State of West Virginia, by counsel Scott
E. Johnson, filed a response in support of the circuit court’s order. Petitioner filed a reply. On
appeal, petitioner argues that the court erred in refusing to expunge her underlying convictions
from her criminal record, thus depriving her of the benefit of the bargain of the plea agreement at
issue.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        In August of 2013, petitioner was indicted for multiple crimes related to the
transportation of controlled substances into a correctional facility. In January of 2014, petitioner
entered into a plea agreement whereby she was permitted to participate in drug court in exchange
for her entry of guilty pleas to both counts in the indictment. The plea agreement contained the
following language:

       RESOLUTION OF CHARGES: [Petitioner] will plead guilty as charged to the
       felony offense of Transporting a Controlled Substance into a State Correctional
       Facility and Conspiracy to Commit a Felony as contained within the indictment
       charging [petitioner]. The parties will jointly recommend that the Court delay
       sentencing on [petitioner’s] guilty plea until [petitioner] successfully completes,
       or is otherwise discharged, from the Drug Court Program, contingent upon her
       acceptance in Drug Court in Raleigh County or in any other county accessible to
       her home county of Wyoming. The parties further resolve and recommend that, if
       successful in the aforementioned program, [petitioner] may introduce evidence
       thereof in mitigation of punishment by the Court at a subsequent sentencing

                                                 1
 
              hearing. The State of West Virginia believes that although the [petitioner] Megan
              J. Stewart committed the felonies as charged and the State of West Virginia
              believes that should this matter proceed to trial that Ms. Stewart would be
              convicted upon jury trial; the State of West Virginia likewise believes that there
              were special and extenuating circumstances involving Ms. Stewart’s participation
              in the events which gave rise to the charges herein and the State believes that the
              discharge of her sentence in the manner set forth in this agreement is in the best
              interests of the [petitioner] and the public’s interest in the just administration of
              the law, and that the State believes that the public interest would not be served by
              the confinement of Megan Stewart to an incarceration term in the regional jail nor
              in the penitentiary. If [petitioner] is discharged, or voluntarily withdraws, from the
              Drug Court program prior to successful graduation, this matter shall be returned
              to the active docket and jurisdiction of this Court, and the Court may proceed with
              sentencing. Furthermore, it is understood and acknowledged by [petitioner] that a
              discharge or voluntary withdrawal from the Drug Court is not sufficient cause to
              withdraw [petitioner]’s plea, and [petitioner] hereby waives any right to move to
              withdraw the plea as a result of any discharge or voluntary withdrawal from Drug
              Court. In the event that the plea is permitted to be withdrawn for any other reason,
              the State may reinstitute any criminal charges pending against [petitioner] at the
              time this agreement was entered.

The plea agreement also plainly stated that “[t]his written agreement constitutes the entire
agreement between the State and [petitioner] in this matter.”

        By order entered in February of 2014, the circuit court1 accepted petitioner’s guilty pleas
and ordered that, pursuant to the plea agreement, petitioner would be “transferred to the
jurisdiction of the Wyoming County Drug Court which is currently being implemented. . . .” The
circuit court further ordered that “upon termination or completion of the Drug Court Program by
the [petitioner], the [petitioner] shall be returned to the jurisdiction of this Court for final
sentencing.”

         However, at a hearing in December of 2014, the circuit court noted that Wyoming
County’s drug court program was not yet operational. As such, the circuit court proceeded to
sentence petitioner to a term of incarceration of two to ten years for her conviction of one count
of transporting controlled substances into a state correctional facility and a term of incarceration
of one to five years for her conviction of conspiracy, said sentences to run concurrently. Further,
the circuit court specifically ruled that it would “defer or delay the imposition of this sentence”
until a later hearing date, at which point petitioner would be required to “demonstrat[e] . . . first a
seriousness about dealing with [her] history of drug use, and secondly mak[e] out a case for
some alternative sentence program.” But, as the circuit court reiterated, “as far as I can
determine, there is no alternative sentence in Wyoming County. . . .”

                                                            
              1
                  At this time, petitioner’s criminal trial was presided over by the Honorable James J.
Rowe.



                                                               2
 
        In February of 2015, the parties came on for a hearing, during which petitioner informed
the circuit court that she recently moved to Summers County, West Virginia, and that the drug
court program in that county was willing to accept her. The circuit court set a deadline of
February 6, 2015, at which point petitioner would be required to self-report to the regional jail to
begin serving her sentence if she had not yet secured placement in the Summers County drug
court program. That deadline was later extended to February 20, 2015. Petitioner was able to
secure her placement in the program and thereafter participated in the program for the next two
years.

        In February of 2017, petitioner was released from the Summers County drug court
program after her successful completion of that program. That same month, the circuit court2
conducted a dispositional hearing following petitioner’s release. During the hearing, petitioner
requested that “the original drug court agreement be honored” by permitting her to withdraw her
guilty pleas and dismissing the case. According to petitioner, “it was the representation of the
former Assistant Prosecuting Attorney that the felony charges would be dismissed” after her
successful completion of the drug court program. During the hearing, the State agreed that
petitioner should be entitled to dismissal of the charges against her. In fact, the prosecuting
attorney, although not personally involved in the formation of the plea agreement at issue,
indicated that “the State’s understanding the whole time” was that petitioner would have the
charges against her dismissed entirely. However, the circuit court disagreed with this
interpretation of the written plea agreement and indicated that it specified only that petitioner
would be permitted to discharge her sentence by way of participating in drug court as an
alternative sentence to incarceration. Due to the lengthy procedural history of the matter, the
circuit court continued the hearing to give the parties additional time to address the issue.

        In October of 2017, the circuit court held another dispositional hearing, during which
petitioner presented testimony from Robert Martin, the former assistant prosecuting attorney who
entered into the plea agreement with petitioner. During Mr. Martin’s testimony, the circuit court
asked the following: “What was the intent of the parties [to the plea agreement] based upon
[petitioner’s] success or lack of success in drug court? Do you recall?” Mr. Martin responded:
“No, I don’t.” Following this hearing, petitioner filed a motion for the circuit court to enter a
“corrective order” in regard to the acceptance of the original plea agreement that would allow
petitioner to “receive the benefit of the plea bargain that she has fulfilled.” Specifically,
petitioner again requested that the circuit court permit her to withdraw her guilty pleas and have
the charges against her dismissed.

       Thereafter, the circuit court entered an order denying petitioner’s motion. Relying on
Rule 32(e) of the West Virginia Rules of Criminal Procedure and this Court’s holding in State v.
Harlow, 176 W.Va. 559, 346 S.E.2d 350 (1986), the circuit court found that “after a Defendant
has been sentenced, a motion for withdrawal of a plea of guilty may only be set aside on direct
appeal or by petition under West Virginia Code § 53-4A-1.” Because petitioner in this matter had
previously been sentenced in January of 2015, the circuit court found that it lacked jurisdiction to
                                                            
              2
                  At this time, petitioner’s criminal trial was presided over by the Honorable Jennifer P.
Dent.



                                                               3
 
permit withdrawal of the guilty pleas. Moreover, the circuit court found that, although it had
authority to “amend its records to accord with the facts in both criminal and civil cases[,]” it
ultimately did not “find inconsistencies to justify the entry of a Corrected Order.” In making this
determination, the circuit court noted that the plain language of the plea agreement
“contemplated the entry of . . . pleas, the acceptance of the pleas by the Court and that the
[petitioner] may introduce evidence of her successful completion of Drug Court in mitigation of
punishment . . . at a subsequent sentencing hearing.” Importantly, the circuit court found that
“[t]here is no provision in the Plea Agreement for a withdrawal of the [petitioner’s] guilty pleas
and dismissal of the case upon completion of Drug Court.” Instead, the plea agreement
“contemplated . . . that a sentence will be imposed based on the Court’s consideration of
mitigating circumstances.” Given that petitioner had already been sentenced, had that sentence
deferred, and successfully completed the drug court program, as contemplated, the circuit court
found that petitioner was returned to its jurisdiction for final disposition. Further, as
contemplated by the agreement, petitioner was permitted to introduce evidence of her successful
completion of the drug court program. As such, the circuit court denied petitioner’s motion.

       In November of 2017, the circuit court held a final hearing in the matter during which the
State moved to dismiss the matter upon petitioner’s successful completion of the drug court
program. The circuit court found that petitioner “successfully completed the sentence previously
imposed” and granted the State’s motion. The circuit court memorialized these findings in its
December 14, 2017, final order. It is from this order that petitioner appeals.

       This Court has previously established the following standard of review:

              “In reviewing challenges to the findings and conclusions of the circuit
       court, we apply a two-prong deferential standard of review. We review the final
       order and the ultimate disposition under an abuse of discretion standard, and we
       review the circuit court’s underlying factual findings under a clearly erroneous
       standard. Questions of law are subject to a de novo review.” Syl. Pt. 2, State v.
       Hinchman, 214 W.Va. 624, 591 S.E.2d 182 (2003).

Syl. Pt. 1, State v. Seen, 235 W.Va. 174, 772 S.E.2d 359 (2015). Moreover,

               “[c]ases 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



                                                 4
 
       that is reviewed de novo.” Syllabus Point 1, State ex rel. Brewer v. Starcher, 195
       W.Va. 185, 465 S.E.2d 185 (1995).

Syl. Pt. 1, State v. Palmer, 206 W.Va. 306, 524 S.E.2d 661 (1999).

        Upon our review, we find no error. In regard to the first determination concerning the
factual questions regarding the terms of the plea agreement at issue, this Court concludes that the
circuit court was correct in its findings. Importantly, the plea agreement does not contain any
language that could reasonably be construed as requiring that petitioner be permitted to withdraw
her pleas to the charges at issue and have her convictions entirely expunged. On the contrary, as
the circuit court found, the plea agreement explicitly “contemplated the entry of . . . pleas, the
acceptance of the pleas by the Court and that the [petitioner] may introduce evidence of her
successful completion of Drug Court in mitigation of punishment by the Court at a subsequent
sentencing hearing.” We agree that nothing in the plea agreement permitted petitioner to
withdraw the pleas. Instead, it is clear, as the circuit court found, that “what is contemplated is
that a sentence will be imposed based on the Court’s consideration of mitigating circumstances”
which, in this case, included her successful completion of the drug court program.

         On appeal, petitioner repeatedly urges this court to ensure that she receive “the benefit of
the full bargain” between her and the State. Citing to the written plea agreement and testimony
from the former assistant prosecuting attorney who formulated the plea agreement and entered
into it on behalf of the State, petitioner argues that “it is clear that . . . the wishes of the parties
when said arrangement was entered into” was that she be entitled to expungement of her
convictions following successful completion of the drug court program. The record, however,
does not support this position. As noted above, the assistant prosecuting attorney who entered
into this plea agreement specifically testified that he did not recall the intention of the parties at
the time they entered into the agreement. While it is true that the prosecuting attorney who
handled the matter following petitioner’s completion of drug court indicated that he believed full
expungement had been the State’s intention all along, this fact has no bearing on the formation of
the plea agreement, as he was not the individual responsible for entering into the agreement and
the plain language of the agreement itself does not provide for such a resolution.

        In support of her position, petitioner argues that “plea agreements are generally governed
by the same rules that apply to contracts.” Indeed, “[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 he is reasonably entitled.” State v. Shrader, 234 W.Va. 381, 389, 765
S.E.2d 270, 278 (2014) (quoting State ex rel. Brewer v. Starcher, 195 W.Va. 185, 465 S.E.2d
185 (1995)). What petitioner fails to recognize, however, is that this Court has held as follows:

              “It is not the right or province of a court to alter, pervert or destroy the
       clear meaning and intent of the parties as expressed in unambiguous language in
       their written contract or to make a new or different contract for them.” Syllabus
       point 3, Cotiga Development Co. v. United Fuel Gas Co., 147 W.Va. 484, 128
       S.E.2d 626 (1962).




                                                   5
 
Syl. Pt. 3, Cabot Oil & Gas Corp. v. Huffman, 227 W.Va. 109, 705 S.E.2d 806 (2010). Here,
there is no ambiguity in the language of the plea agreement, given that no portion thereof
provides for petitioner to withdraw her guilty pleas so that her convictions can be expunged. On
the contrary, the plea agreement expressly provided for petitioner to complete the drug court
program and have her successful completion considered as a mitigating factor in imposing her
ultimate punishment.3

       While petitioner argues that she believed the terms of the plea agreement permitted her to
ultimately withdraw her guilty pleas, we have held that

                      “[t]he mere fact that parties do not agree to the construction of a contract
              does not render it ambiguous. The question as to whether a contract is ambiguous
              is a question of law to be determined by the court.” Syllabus Point 1, Berkeley Co.
              Pub. Serv. v. Vitro Corp., 152 W.Va. 252, 162 S.E.2d 189 (1968).

Syl. Pt. 4, Mylan Laboratories Inc. v. American Motorists Ins. Co., 226 W.Va. 307, 700 S.E.2d
518 (2010). Here, petitioner’s interpretation of the terms of the plea agreement does not render
the terms ambiguous. As set forth above, the terms of the plea agreement are explicitly clear, as
the circuit court determined. Further, while petitioner seeks to rely on testimony concerning the
parties’ intent during the formation of the plea agreement, she fails to acknowledge that

                     [a]n unambiguous written contract entered into as the result of verbal or
              written negotiations will, in the absence of fraud or mistake, be conclusively
              presumed to contain the final agreement of the parties to it, and such contract may

                                                            
              3
         In support of her argument that the plea agreement at issue permitted her to withdraw
her guilty pleas following the successful completion of drug court, petitioner argues in her reply
that she “is entitled to a sentencing hearing after she completed a drug court program. . . .”
Because the circuit court sentenced petitioner prior to her enrollment in drug court, petitioner
argues that “the agreement is not completed.” This argument, however, ignores the reality that
the sentences imposed in 2015 were deferred pending her enrollment in drug court and that she
never served any period of incarceration under those sentences. Ultimately, petitioner received
what she was entitled to under the plea agreement, which was the opportunity to participate in
drug court and have her successful completion thereof considered in the circuit court’s ultimate
disposition of her criminal case. As noted above, following her successful completion of drug
court, the circuit court found that petitioner “was permitted to serve her . . . sentence on the . . .
Summers County Drug Court Program” and successfully completed the same. Given that
petitioner successfully completed her sentence, the circuit court dismissed the matter. In short,
petitioner received the most lenient sentence possible under the terms of the plea agreement,
regardless of the fact that the original deferred sentence was entered prior to her enrollment in
drug court. More importantly, the procedural issue of the circuit court’s earlier imposition of
sentence in 2015 has no bearing on petitioner’s lone assignment of error concerning her assertion
that the terms of the plea agreement permitted her withdrawal of her guilty pleas and a full
expungement of the charges against her.



                                                               6
 
              not be varied, contradicted or explained by extrinsic evidence of conversations
              had or statements made contemporaneously with or prior to its execution.

Cabot, 227 W.Va. at 111, 705 S.E.2d at 808, Syl. Pt. 4 (quoting Syl. Pt. 1, Traverse Corp. v.
Latimer, 157 W.Va. 855, 205 S.E.2d 133 (1974)). Moreover, even if the Court were to consider
extrinsic evidence of the plea agreement’s formation, the record does not support petitioner’s
assertion that it was the parties’ intent to permit her to withdraw her pleas, given the testimony
from Mr. Martin wherein he indicated that he did not recall the parties’ intentions.

        Petitioner similarly relies upon our prior holdings to argue that the plea agreement should
be strictly construed against the State, as the party that drafted the agreement.4 Petitioner is
correct, as we have held as follows:

                      “Due to the significant constitutional rights that a criminal defendant
              waives in connection with the entry of a guilty plea, the burden of insuring both
              precision and clarity in a plea agreement is imposed on the State. Consequently,
              the existence of ambiguity in a court-approved plea agreement will be construed
              against the State and in favor of the defendant.” Syl. Pt 3, State ex rel. Thompson
              v. Pomponio, 233 W.Va. 212, 757 S.E.2d 636 (2014).

                                                            

              4
         Petitioner also argues that drug courts are authorized under West Virginia Code § 62-15-
4 and that this statute should be strictly construed against the State because it is a penal statute. It
is true that this Court has held that “[p]enal statutes must be strictly construed against the State
and in favor of the defendant.” Syl. Pt. 3, State ex rel. Carson v. Wood, 154 W.Va. 397, 175
S.E.2d 482 (1970). Assuming for the sake of argument that this is a penal statute, petitioner
provides no supporting argument to establish how a strict construction of West Virginia Code §
62-15-4 would require the charges against her to be dismissed. According to West Virginia Code
§ 62-15-4-(g),

              [u]pon successful completion of drug court, a drug offender’s case shall be
              disposed of by the judge in the manner prescribed by the agreement and by the
              applicable policies and procedures adopted by the drug court. This may include,
              but is not limited to, withholding criminal charges, dismissal of charges,
              probation, deferred sentencing, suspended sentencing, split sentencing, or a
              reduced period of incarceration.

(Emphasis added). The statute is clear that the terms of the plea agreement itself set forth the
manner in which the case must be disposed and it further provides for the outcome that was
achieved herein; a suspended sentence and dismissal of the proceedings given petitioner’s
successful discharge of her sentence by way of completion of the drug court program. As such, it
is clear that even a strict interpretation of the applicable statute would not result in the relief
petitioner requests.




                                                               7
 
Shrader, 234 W.Va. at 382, 765 S.E.2d at 272, Syl. Pt. 5. Again, however, petitioner misapplies
our prior holdings to the facts of the present case. As outlined above, there is no ambiguity in the
terms of the plea agreement. Thus, there are no ambiguous terms which must be strictly
construed against the State. Accordingly, we find that petitioner is not entitled to the relief
requested.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.


ISSUED: January 14, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
John A. Hutchison
 




                                                 8
 
