                                   STATE OF WEST VIRGINIA
                                 SUPREME COURT OF APPEALS

State ex rel. State of West Virginia,
Plaintiff Below, Petitioner
                                                                                 FILED
v.     No. 18-0672 (Wetzel County, 11-F-15)                                    May 3, 2019
                                                                                released at 3:00 p.m.
                                                                            EDYTHE NASH GAISER, CLERK
                                                                            SUPREME COURT OF APPEALS
The Hon. David J. Sims, Judge of the First                                       OF WEST VIRGINIA
Judicial Circuit, sitting by special assignment,
and John Michael Howell,
Defendant Below, Respondents



                                MEMORANDUM DECISION

        In 2016, John Michael Howell1 pled guilty to kidnapping with a potential sentence
of life imprisonment with the possibility of parole in fifteen years. Mr. Howell challenged
the validity of the plea agreement on appeal because the applicable statute mandated
eligibility for parole in ten years. We agreed and vacated Mr. Howell’s plea agreement
and conviction and ordered that the parties be returned to their respective positions prior to
the plea bargain. A few days later, the State offered Mr. Howell’s lawyer the original plea
agreement modified for eligibility for parole in ten years. Two days later—two weeks prior
to the offer being communicated to Mr. Howell—the State revoked its offer. At the
sentencing hearing, the circuit court determined that the State was not permitted to revoke
its offer and ordered specific performance of the new plea agreement. The State2 now
urges us to grant a Writ of Prohibition as to that ruling.

        This Court has considered the parties’ briefs, the appendix submitted, and the
parties’ oral arguments. Upon consideration of the standard of review, we find that the
circuit court’s dispositional order is clearly erroneous as a matter of law. Accordingly, we
prohibit enforcement of the circuit court’s dispositional order and remand this case with
instruction to return the parties to their post-indictment, pre-plea agreement positions.
Insofar as this case does not present a new or significant issue of law, and for the reasons
set forth herein, we find that this case satisfies the “limited circumstances” requirements of


       1
           Mr. Howell is represented by Keith White, Esq.
       2
         Rhonda L. Wade, Esq., Marshall County Prosecuting Attorney, Eric M. Gordon, Esq.,
Assistant Prosecuting Attorney, and Herman D. Lantz, Esq., Assistant Prosecuting Attorney,
represent the State of West Virginia.


                                                    1
Rule 21(d) of the West Virginia Rules of Appellate Procedure and is proper for disposition
as a memorandum decision.

                             I.     Facts and Procedural History

        In January of 2011, Mr. Howell was indicted on four criminal counts: kidnapping,
attempted sexual assault in the second degree, sexual assault in the first degree, and
malicious assault. During his trial, the parties informed the circuit court that Mr. Howell
agreed to plead guilty to the kidnapping charge, which carries a possible life sentence. The
written plea agreement expressly provided that he would be eligible for parole after serving
fifteen years in prison:

                      It is understood herein that for the Felony offense of
                “Kidnapping” the defendant will be sentenced to life with
                mercy. The defendant will be eligible for parole after serving
                a minimum of fifteen (15) years with credit for time served.
                The defendant understands that he may never be paroled,
                that matter will be left up to the Parole Board.[3]

       In exchange for this guilty plea, the State agreed to dismiss the remaining counts of
the indictment. During the plea and sentencing hearing, there were repeated references to
Mr. Howell serving fifteen years of incarceration before becoming eligible for parole
consideration. Following a plea colloquy, the circuit court determined that Mr. Howell’s
guilty plea to the crime of kidnapping was knowing, intelligent, and voluntary. The court
sentenced Mr. Howell to life in prison with a recommendation of mercy, once again
specifying that Mr. Howell would be “eligible for parole after serving a minimum of 15
years with credit for time served[.]”

        Mr. Howell’s lawyer later objected to the fifteen-year minimum for parole. In a
letter to the circuit court, he argued that the fifteen-year parole eligibility period was
contrary to law and that all parties were unaware of this at the time of the plea agreement.
Specifically, the kidnapping statute provides:

                        (b) The following exceptions shall apply to the penalty.
                ...

                       (2) If the person pleads guilty, the court may, in its
                discretion, provide that the person is eligible for parole in
                accordance with the provisions of article twelve, chapter sixty-
                two of this code and, if the court so provides, the person is

       3
           Emphasis in original.




                                                   2
                eligible for parole in accordance with the provisions of said
                article in the same manner and with like effect as if the person
                had been found guilty by the verdict of a jury and the jury had
                recommended mercy[.][4]

The referenced parole statute addresses eligibility for parole:

                An inmate sentenced for life may not be paroled until he or she
                has served ten years, and an inmate sentenced for life who has
                been previously twice convicted of a felony may not be paroled
                until he or she has served fifteen years: Provided, That an
                inmate convicted of first degree murder for an offense
                committed on or after June 10, 1994, is not eligible for parole
                until he or she has served fifteen years.[5]

It is undisputed that Mr. Howell has no prior felony conviction. So, under these statutes,
he would be eligible for parole consideration in ten years, not fifteen as agreed upon in his
plea agreement.

       The circuit court held a hearing on May 6, 2016, to consider this issue and
specifically addressed the mistake about the applicable parole eligibility period:

                        I will say this: At the time the plea was entered, I had
                in my mind that the fifteen-year eligibility date was proper.
                Basically, what I had in mind, really, was the first degree
                murder cases. . . . But what I had in my mind—and I’m giving
                you the mental processes—is that with a recommendation of
                mercy, that means a person would be eligible for parole in
                fifteen years. That’s what I operated on.

       Mr. Howell moved that the sentencing order be changed to reflect that he would be
parole-eligible after ten years of incarceration. The State objected to this modification,
arguing that the requirement of serving at least fifteen years in prison was “the essence of
the plea agreement[,]” and that the State would not have entered into the plea bargain
without this provision. Because the fifteen-year provision was specified in the plea
agreement, the circuit court denied Mr. Howell’s motion to reduce the parole eligibility


       4
           W. Va. Code § 61-2-14a(b) (2017). Both the kidnapping and parole statutes have been
amended since Mr. Howell’s alleged crimes. The changes to the relevant language, however, are
stylistic and do not affect the outcome of this appeal, so this decision quotes the current language.
       5
           W. Va. Code § 62-12-13(c) (2017) (emphasis added).




                                                     3
period to ten years and a sentencing order was entered on May 12, 2016. Mr. Howell
appealed that order.

       In October 2017, we affirmed the circuit court’s order.6 But in February 2018, we
granted Mr. Howell’s request for rehearing, ultimately reversing our prior decision on the
matter and vacating the original plea agreement and conviction.7 We remanded the case to
the circuit court with instruction to return the parties to their respective positions post-
indictment but prior to entry of the plea agreement.

       Shortly after the decision of this Court, an assistant prosecutor called Mr. Howell’s
lawyer to discuss a possible resolution of the case. During the April 25, 2018 conversation,
the assistant prosecutor told Mr. Howell’s lawyer that the State would be willing to offer
the original plea agreement with the modification that Mr. Howell would be eligible for
parole in ten years, but noted that he hadn’t had a chance to talk it over with the victim.
The State describes this conversation as its offer to enter into a plea agreement, while Mr.
Howell contends that it was instead the State’s acceptance of his offer to plead by virtue of
his prior arguments to this Court in the underlying appeals.

       After speaking with the victim, the assistant prosecutor contacted Mr. Howell’s
lawyer two days later and revoked the offer. Notably, during a May 10, 2018 pretrial
hearing, there was no discussion of the April 25, 2018 plea communication. Instead, the
State and Mr. Howell’s lawyer discussed plea proposals different than that proposed on
April 25. By Mr. Howell’s own admission, the April 25 plea offer was not communicated
to him until after the May 10, 2018 hearing—two weeks after it had been withdrawn.

      On June 28, 2018, Mr. Howell’s lawyer sent a text message to Assistant Prosecutors
Eric M. Gordon and Herman Lantz, requesting a written plea offer. The assistant
prosecutors informed Mr. Howell’s lawyer that there was no plea offer on the table.

        Mr. Howell then filed his Motion to Enforce State of West Virginia’s Agreement to
Enter Corrected Sentencing Order/Correct Sentence. In this motion, Mr. Howell argued
that the April 25, 2018 communication from the assistant prosecutor was an acceptance of
his prior offer to plead—an offer he contends was made known to the State by implication
through his brief to this Court in the previous appeal, in which he sought a correction of
his sentence from a fifteen-year minimum eligibility for parole to a ten-year minimum.

       At a July 16, 2018 hearing, the circuit court determined that an enforceable plea
agreement had been reached and directed the parties to return that afternoon to accept the
plea. The State objected to this order and requested a delay to allow the filing of this
Petition for a Writ of Prohibition. The circuit court denied this request and took the plea
       6
           State v. Howell, 2017 WL 4772861 (October 23, 2017) (memorandum decision).
       7
           State v. Howell, 2018 WL 7075301 (April 13, 2018) (memorandum decision).


                                                  4
on the same day over the State’s objection and without the State’s signature on the plea
agreement.

                                   II.     Standard of Review

       In support of its petition for a writ of prohibition, the State argues that the circuit
court abused its discretion in ruling that an enforceable plea agreement existed and in
further ordering specific performance of the agreement. Our law is well established that
we consider five factors in determining whether to grant a writ in this context:

                        [i]n determining whether to entertain and issue the writ
                 of prohibition for cases not involving an absence of jurisdiction
                 but only where it is claimed that the lower tribunal exceed its
                 legitimate powers, this Court will examine five factors: (1)
                 whether the party seeking the writ has no other adequate
                 means, such as direct appeal, to obtain the desired relief; (2)
                 whether the petitioner will be damaged or prejudiced in a way
                 that is not correctable on appeal; (3) whether the lower
                 tribunal’s order is clearly erroneous as a matter of law; (4)
                 whether the lower tribunal’s order is an oft repeated error or
                 manifests persistent disregard for either procedural or
                 substantive law; and (5) whether the lower tribunal’s order
                 raises new and important problems or issues of law of first
                 impression. These factors are general guidelines that serve as
                 a useful starting point for determining whether a discretionary
                 writ of prohibition should issue. Although all five factors need
                 not be satisfied, it is clear that the third factor, the existence of
                 clear error as a matter of law, should be given substantial
                 weight.[8]

       With this standard in mind, we consider the arguments of the parties.

                                         III.    Discussion

        We begin our analysis with the constitutional concerns raised by the circuit court
and argued on appeal by Mr. Howell, which stem from this Court’s order to return all
parties to their post-indictment, pre-plea agreement positions. At the outset, we note that
there is no absolute right under either the West Virginia or the United States Constitution



       8
           Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).




                                                      5
to a plea agreement.9 We have previously noted that a defendant has “no constitutional
right to have his case disposed of by way of a plea bargain[.]”10 This is true regardless of
whether a defendant has exercised his right to appeal in the underlying matter. In this case,
we are presented with the following plea colloquy:

                        The Court: So [Mr. Howell] is put in a – very
                 disadvantageous position because he exercised his right to
                 challenge a void sentence. That really is the practical
                 consideration of all of this.

                         Now, I realize what the majority opinion held, and it did
                 put everybody back into a pre-indictment, pre-plea agreement
                 status, but the reality is that it places [Mr. Howell] in a position
                 that he is, to his jeopardy, going to trial on all the counts in the
                 indictment, and if convicted, the parole issue probably is a
                 nullity for all intents and purposes.

                        Therein lies the problem here, and that is now – the
                 added ingredient to that is you have this offer that was made
                 by Ms. Poling. It was made, and what happened within the
                 prosecutor’s office I have no idea, whether or not – why she
                 made it. I don’t know, but she did. Apparently there’s no
                 dispute as to that.

                         You then place the Defendant again in a position of
                 knowing that the offer’s out there. Here we are thinking that
                 now the disposition of the offer originally made has now been
                 accepted so you have a binding plea agreement, and now the
                 State comes and then pulls the rug from under him. Therein
                 lies a serious, serious constitutional problem. It truly does.

                        The fact that [Mr. Howell] is being penalized for
                 exercising his right to challenge a void sentence is also a
                 serious Constitutional problem.

       It appears that the circuit court considered this Court’s order to return all parties to
their post-indictment, pre-plea agreement position as presenting a “serious Constitutional
problem” in and of itself. This conclusion was erroneous for two reasons. First, the ruling



       9
           Syl. Pt. 2, Brewer v. Starcher, 195 W. Va. 185, 192 S.E.2d 185 (1995).
       10
            Myers v. Frazier, 173 W. Va. 658, 664 n.5, 319 S.E.2d 782, 788 n.5 (1984)).


                                                      6
is inconsistent with and violates both the law of the case doctrine and the mandate rule.
With respect to the law of the case doctrine, we have held as follows:

                        The law of the case doctrine generally prohibits
                 reconsideration of issues which have been decided in a prior
                 appeal in the same case, provided that there has been no
                 material changes in the facts since the prior appeal, such issues
                 may not be relitigated in the trial court or re-examined in a
                 second appeal.[11]

       The mandate rule is an aspect of the law of the case doctrine, which this Court has
explained as follows:

                        A circuit court has no power, in a cause decided by the
                 Appellate Court, to re-hear it as to any matter so decided, and,
                 though it must interpret the decree or mandate of the Appellate
                 Court, in entering orders and decrees to carry it into effect, any
                 decree it may enter that is inconsistent with the mandate is
                 erroneous and will be reversed.[12]

        Second, in Alabama v. Smith, the Supreme Court grappled with the possibility of a
criminal defendant receiving a harsher sentence post-appeal than the sentence previously
imposed by virtue of the vacated plea agreement. The Supreme Court ultimately held that
“there is no basis for a presumption of vindictiveness where a second sentence imposed
after a trial is heavier than a first sentence imposed after a guilty plea.”13

       So, in order for there to be a valid plea agreement in this case, there must have been
a new plea agreement reached. In the present case, a review of the evidence at the July 16,
2018 hearing reveals that the State made a plea offer on April 25, 2018 to Mr. Howell’s
lawyer. However, the State revoked the offer on April 27, 2018—two weeks prior to the
offer being communicated to Mr. Howell on May 10, 2018. This much is undisputed.
Believing that Mr. Howell’s constitutional rights were compromised because he had
exercised his right to appeal, the circuit court ultimately determined that the State had no
authority to revoke the plea offer under those circumstances.



       11
         State ex rel. Frazer & Oxley, L.C. v. Cummings, 214 W. Va. 802, 808, 591 S.E.2d 728,
734 (2003) (internal quotation marks and citation omitted).
       12
            Syl. Pt. 1, Johnson v. Gould, 62 W. Va. 599, 59 S.E. 611 (1907).
       13
            490 U.S. 794 (1989), overruling Simpson v. Rice, 395 U.S. 711 (1969).




                                                     7
        As we stated in State ex rel. Brewer v. Starcher, “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.”14 Essential to any contract is the requirement that there
is both an offer and an acceptance. Further, “[b]efore acceptance, a proposal is ‘but an
offer to contract, and the parties making the offer might undoubtedly withdraw it any time
before acceptance.’”15

       Here, it is undisputed that the initial plea communications at issue occurred on April
25, 2017 and that the State revoked its offer on April 27, 2017. It is further undisputed that
the plea offer was not conveyed to Mr. Howell until May 10, 2018—two weeks after the
State revoked the offer. So, Mr. Howell could not have accepted the offer prior to its
revocation. Though this Court has written extensively on the standards for effectiveness
of plea agreements,16 we need not consider whether specific performance of the agreement
was proper in this instance as we find that no valid agreement existed to enforce.

                                       IV.    Conclusion

       For the foregoing reasons, we grant the State’s petition for a Writ of Prohibition.


                                                                                 Writ Granted.
ISSUED:         May 3, 2019

CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison

CONCURRING, IN PART, AND DISSENTING, IN PART:
Justice Margaret L. Workman

WORKMAN, J., concurring, in part, and dissenting, in part:



       14
            Brewer, 195 W. Va. at 192, 465 S.E.2d at 192.
       15
            Weaver v. Burr, 31 W. Va. 736, 747, 8 S.E. 743, 747 (1888) (overturned on other
grounds).
       16
        See State v. Wayne, 162 W. Va. 41, 245 S.E.2d 838 (1978); State ex rel. Gray v. McClure,
161 W. Va. 488, 242 S.E.2d 704 (1978); and Brooks v. Narick, 161 W. Va. 415, 243 S.E.2d 841
(1978).


                                                    8
               I concur with the majority’s conclusion that the mandate issued by a majority
of the Court in State v. Howell, No. 16-0541, 2018 WL 7075301 (W. Va. Apr. 13, 2018)
(memorandum decision) (“Howell I”), returned the parties to their original negotiating
positions; and that subsequently, no enforceable plea agreement was reached due to
absence of a valid offer and acceptance. However, I write separately to reiterate and
underscore how wrong the Howell I majority opinion was in completely dismantling the
original plea agreement; and how that opinion has indeed resulted in the “colossal absurdity
and [] waste of judicial resources” anticipated in my dissent. See Id. at *7 (Workman, J.,
dissenting).

              The circuit court also seemed to recognize how grossly unfair the majority
Howell I decision was and may have attempted to mitigate that mistake by effecting a de
facto correction of sentence. However, this Court has held that

              [u]pon remand of a case for further proceedings after a decision
              by this Court, the circuit court must proceed in accordance with
              the mandate and the law of the case as established on appeal.
              The trial court must implement both the letter and the spirit of
              the mandate, taking into account the appellate court’s opinion
              and the circumstances it embraces.

Syl. Pt. 3, State ex rel. Frazier & Oxley, L.C. v. Cummings, 214 W. Va. 802, 591 S.E.2d
728 (2003) (emphasis added).

                 That said, I wish to reiterate the fallacy of the Howell I majority’s insistence
that only complete rescission of the plea agreement would remedy the mistake that was
made not by the defendant, but by the three lawyers in the room (the Court, the prosecutor,
and the defense attorney) which gave rise to the appeal and necessitated this subsequent
appeal. As has been made clear in the litany of litigation which this singular mistake of
law has wrought, the State, defense attorney, and circuit court (admittedly) incorrectly
believed that petitioner’s plea to a life sentence of kidnapping rendered him parole eligible
after fifteen years. However, West Virginia Code § 62-12-13(c) (2017) provides that,
unless twice convicted of a felony or pleading to first degree murder, an inmate sentenced
for life is first eligible for parole after ten years.

                The defendant subsequently learned of the mistake of law that the lawyers
and judge made, and sought to have his sentence reformed to reflect the statute accurately.
To discharge the State from performing in compliance with the legally mandated parole
eligibility statute is inequitable, unnecessary, and puts petitioner at risk of having to now
defend himself against a years-old crime since the State inexplicably refused to enter a
valid plea agreement to the substantive crime upon which it previously agreed. It is well-
established 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


                                                   9
which he is reasonably entitled.” State ex rel. Brewer v. Starcher, 195 W. Va. 185, 192,
465 S.E.2d 185, 192 (1995). Moreover, “[w]hen 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, 453, 513 S.E.2d 676, 680 (1998).
Mr. Howell did not breach the plea agreement in any respect; therefore, he is entitled to the
benefit of the agreement.

              The appropriate course for the Howell I Court would have been to follow the
line of cases which evaluate such scenarios using the contract principles of frustration of
purpose and/or mutual mistake of law. Had the majority employed that analysis, it would
have plainly determined that a simple downward correction of the parole eligibility aspect
of the plea agreement consistent with the statute would have sufficed, alleviating the
interminably-prolonged resolution of this matter.

                Utilizing these contractual principles, the Kansas Supreme Court has stated
that “when a defendant successfully challenges an illegally excessive sentence imposed as
the result of a plea bargain, it is the defendant’s choice, not the State’s, whether to obviate
the plea agreement or not.” State v. Boley, 113 P.3d 248, 257 (Kan. 2005). In reviewing
the use of the contractual “frustration of purpose doctrine,” the Boley Court explained that
“[t]he first step in applying the doctrine is to determine whether the allegedly frustrated
purpose was ‘so completely the basis of the contract that . . . without it the transaction
would make little sense.’” Id. at 253-54 (quoting Restatement (Second) of Contracts § 265,
comment a).

             In concluding that the illegal sentence did not frustrate the purpose of the
agreement, the Boley Court stated:

              [T]he State’s purposes were achieved. Through the plea
              agreement, the State avoided a trial and the attendant risk of a
              not guilty verdict, i.e., the State obtained a conviction of a
              severity level 1 drug felony without having to prove the
              defendant guilty beyond a reasonable doubt before a jury.
              Additionally, the defendant served time in prison, albeit not as
              much time as the State expected.

Id. at 254. Refusing wholesale rescission of the plea agreement, the Boley Court found that
even though correction of the illegality resulted in a lesser sentence, it was not tantamount
to the substantial frustration required for rescission of the agreement altogether:

              The Restatement defines the second element of the doctrine by
              stating: “[T]he frustration must be substantial. It is not enough
              that the transaction has become less profitable for the affected


                                                 10
              party or even that [it] will sustain a loss. The frustration must
              be so severe that it is not fairly to be regarded as within the
              risks ... assumed under the contract.”

              In this regard . . . Boley’s attack on his sentence will result in
              a resentencing, although to a sentence which is shorter than that
              which the State agreed to recommend. Thus . . . “the State has
              not lost its entire bargained-for value.”

Id. at 254 (citations omitted).

              The Utah Court of Appeals approached a similar situation utilizing the
mutual mistake of law doctrine, but reaching the same result as the Boley court. In State v.
Patience, the defendant was sentenced for attempted forgery as a felony offense, when it
had been changed to a misdemeanor by law. 944 P.2d 381, 384 (Utah Ct. App. 1997).
While the State conceded the sentence was illegal, it demanded that the remedy was to
rescind the plea agreement, reinstate the charges, and allow either a trial or new plea
agreement. Id. at 384. The Patience court found that the mutual mistake of law doctrine
dictated the proper remedy, explaining “[u]nder contract law, a party may not rescind an
agreement based on mutual mistake where that party bears the risk of mistake.” Id. at 387
(emphasis added). The court then refused to rescind the plea agreement in its entirety,
finding that

              [t]he State is generally in the better position to know the correct
              law, given that the State has control over the charges in the
              information and final say over whether to accept a defendant’s
              plea, and the State must be deemed to know the law it is
              enforcing. Indeed, it is the State’s law, duly enacted by its
              legislative branch, that is in issue. The State must be charged
              with knowledge of its own legislative enactments and, in that
              sense, cannot be said to have been mistaken about the
              governing statute in effect when it agreed to the plea
              arrangement.

Id. at 387–88 (emphasis added). The court highlighted that “this is not a situation where
the law was not clear on its face, or where the State was somehow induced into the mistake
about the law[.]” Id. at 388. Accordingly, it remanded simply for resentencing on the
existing plea agreement. See also Osborne v. State, 499 A.2d 170, 178 (Md. 1985),
abrogated on other grounds by State v. Hawkins, 604 A.2d 489 (Md. 1992) (“The State
must be held to be aware of the common law and the statutes of Maryland. . . . We will not
allow the State to rescind this plea agreement merely because it made a bad bargain.”).




                                                 11
               Further, in Coy v. Fields, 27 P.3d 799, 802 (Az. Ct. App. 2001), the Arizona
Court of Appeals similarly approached the need for downward correction of an illegal
sentence by utilizing the mutual mistake of law doctrine. Finding that where the mistake
of law rests with the prosecutor, rescission of the entirety of the plea agreement is neither
necessary, nor appropriate: “We, too, hold the state accountable for knowing Arizona law
when it negotiates, drafts, and enters into plea agreements. . . .[T]he state bears the risk
when, as here, a sentencing or probation provision in one of its plea agreements proves to
be illegal and unenforceable.” Id. at 803. The Coy court likewise remanded for imposition
of a legal sentence.

               In addition to ignoring the foregoing analysis, the Howell I majority fully
failed to appreciate the distinction between illegal sentences which are excessively lenient
(resulting in the need for an upward correction) rather than excessively harsh (resulting in
the need for a downward correction) and the effect that distinction has on their dispositions.
As noted in my earlier dissent, the Howell I disposition may certainly have been warranted
“[i]f the correction represented an increase in the defendant’s exposure to incarceration[.]”
Howell I, at *5 (Workman, J., dissenting). Noting that a vast majority of the cases in this
arena do in fact deal with illegally lenient sentences, the Arizona Court of Appeals
contrasted those cases with the ones such as the case at bar: “No [] constitutional
considerations arise [requiring rescission of plea agreement] . . . where the [sentence] is
illegal because it impermissibly authorized a [sentence] exceeding the maximum allowed
by law.” Coy, 27 P.3d at 802. The Coy court found that distinction made simple
modification of the sentence both appropriate and necessary.

               The starkly ludicrous impact of the Howell I Court’s wholesale rescission of
the plea agreement is highlighted when considering the substance of the error below. Here,
the correction of sentence would have resulted simply in petitioner’s parole eligibility five
years sooner. Nothing whatsoever suggests that petitioner would be released on parole at
that time, or even five years later, at the time the State originally believed he would be
eligible. As such, correction of petitioner’s sentence cannot even be fairly stated as
necessarily resulting in a different period of incarceration: any change in the actual period
of incarceration is purely hypothetical. See Coy, 27 P.3d at 802 (finding correction of
sentence which only altered “possibility of up to lifetime probation” was not material
alteration (emphasis in original)). Such a change is hardly the frustration of purpose
required to rescind the agreement, nor does rescission of the plea agreement properly place
the burden of this admitted mistake of law on the State, where it firmly belongs. Like the
courts above, the State must be charged with knowledge of its own law and any error in
that regard rectified at the option of the defendant.




                                                 12
              Accordingly, while I concur in the majority’s resolution of the legal issues
presented at this juncture of the case,17 I reiterate my staunch opposition to the Howell I
decision as legally incorrect.




         17
            While I agree with the majority’s resolution of the plea agreement formation issue, I note that the “serious
Constitutional issue” identified by the circuit court is not squarely on point with the law of the case doctrine or mandate
rule, as analyzed by the majority. The mandate rule concerns relitigation of legal issues decided on appeal. The
constitutional issue raised by the circuit court and briefed by the petitioner implicates potential due process concerns
insofar as a harsher penalty is imposed upon remand—an issue which has been the subject of much discussion by the
United States Supreme Court. I address this issue briefly for the sake of clarity and to place the argument into its
proper context.

          In North Carolina v. Pearce, 395 U.S. 711 (1969), the United States Supreme Court held that due process
prohibits imposition of a heavier sentence after retrial without additional information justifying the harsher sentence.
This rule was formed based on the concern that “vindictiveness against a defendant for having successfully attacked
his first conviction must play no part in the sentence he receives after a new trial” and that the “fear of such
vindictiveness” should be permitted to “unconstitutionally deter a defendant’s exercise of the right to appeal[.]” Id.
at 725. See also Patton v. State of N. C., 381 F.2d 636 (4th Cir. 1967) (“[A] sentence may not be increased following
a successful appeal, even where additional testimony has been introduced at the second trial.”). Critically, these cases
involve defendants who received a harsher sentence on retrial than the one they received by the same judge during
their original trial, which was set aside on appeal. Neither involve vacated plea agreements.

          In fact, the United States Supreme Court later contrasted the retrial scenario presented in Pearce with a case
involving a vacated plea agreement. As briefly referenced by the majority, in Alabama v. Smith, 490 U.S. 794 (1989),
the Court held that no presumption of vindictiveness arose when sentence imposed after trial was greater than that
previously imposed after guilty plea. Like the instant case, Smith entered a guilty plea, which was vacated on appeal
because it was not knowing and voluntary; on retrial he was convicted of all charges and received a penalty much
higher than that to which he agreed in his plea agreement. The Court held that in this situation, an increased sentence
is not likely to be due to vindictiveness, but rather the nature of plea agreements. In short, “[a] guilty plea may justify
leniency,” but where a trial ensues, that justification for leniency is removed. Id. at 802.

          However, discussion of this issue is wholly speculative since we do not know what will become of Mr.
Howell—whether he will plead, be tried, convicted, or what his penalty may be. As such, a claim of this nature is not
ripe until a defendant does in fact receive a harsher penalty than he would have under the original plea agreement.
See State Farm Mut. Auto. Ins. Co. v. Schatken, 230 W. Va. 201, 210 n.6, 737 S.E.2d 229, 238 n.6 (2012) (quoting
13B Fed. Prac. & Proc. Juris. § 3532.1 (3d ed.)) (“[R]ipeness asks whether there yet is any need for the court to act.”).



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