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West Virginia Supreme Court Vacates Sentence After State Violates Plea Bargain by Making Recommendation at Sentencing

by Matt Clarke

The Supreme Court of Appeals of West Virginia ruled that a prosecutor’s recommendation that sentences should be served consecutively violated a plea agreement requiring the State to “remain silent on a recommendation at sentencing.” The Court vacated the sentence and remanded the case for resentencing before a different judge and a different prosecutor.

Glen Earnest Blacka was indicted for “multiple counts of sexual assault, incest, and sexual abuse inflicted upon his three step-daughters.” He entered into a plea agreement and pleaded guilty to three counts of sexual abuse by a parent, guardian, or custodian in exchange for the State dismissing the remaining charges and agreeing to “remain silent on a recommendation at sentencing.”

During sentencing, the prosecutor commented on how heinous the case was and recommended that the sentences “run consecutive and not concurrent.” Defense counsel objected several times. The sentencing judge said he was “not listening to what the State said there,” but nonetheless sentenced Blacka to three consecutive sentences of 10 to 20 years. Aided by Cumberland, Maryland, attorney Ramon Rozas III, Blacka appealed.

The Court began its analysis by advising: “This Court has been unequivocal in its commitment to the inviolability of plea agreements … ‘[b]ecause a plea agreement requires a defendant to waive fundamental rights, we are compelled to hold prosecutors and courts to the most meticulous standards of both promise and performance.’” The Court noted that a plea agreement creates enforceable rights by both parties, and they both have the right not to have the terms violated.

If “the State violates a sentencing neutrality provision of a plea agreement, the violation seriously affects the fairness, integrity and public reputation of the proceeding.” State v. Meyers, 513 S.E.2d 676 (W.Va. 1998).

The State argued that the sentence should stand because the sentencing court stated that it was “not listening” to the prosecutor’s recommendation in favor of consecutive sentencing. Additionally, the State argued that since the prosecutor’s comment didn’t contribute to the sentence given it amounted to harmless error.

The Court flatly rejected the State’s position. It cited approvingly to the U.S. Supreme Court (“SCOTUS”) case Santobello v. New York, 404 U.S. 257 (1971), in which SCOTUS explained that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Like in the present case, the prosecutor in Santobello argued that the breach of its promise to remain silent on sentencing didn’t affect the court’s sentencing decision. SCOTUS adamantly disagreed with that argument, ruling that although it had no reason to doubt the sentencing judge’s asserting that the prosecutor’s comment didn’t influence the sentencing decision, “we conclude that the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty will be best served by remanding the case….”

Based on SCOTUS’ reasoning in Santobello, the Court similarly concluded “we find no merit in the State’s assertion … that the sentence should remain undisturbed simply because the circuit court indicated that it was ‘not listening’ to the prosecutor’s argument about consecutive sentencing.” The Court added that due process is denied when the prosecutor violates a plea agreement to remain silent, even if the sentencing judge wasn’t influenced.

Upon a breach of this type, the Court instructed that there are two possible remedies: (1) specific performance or (2) allowing defendant to withdraw the guilty plea. The decision of which is the appropriate remedy is for the court to decide, not the defendant. In the present case, the Court determined that the appropriate remedy is “specific performance of the agreement in a new sentencing hearing before a different judge.”

Citing the “atrociousness” of the prosecutor’s behavior of continually commenting on the sentence despite repeated objections by defense counsel, the Court instructed that it would be inappropriate for that same prosecutor to participate in the sentencing upon remand.

Accordingly, the Court vacated the sentencing order and remanded the case for appointment of a different sentencing judge and prosecutor for resentencing. See: State v. Blacka, 240 W.Va. 657 (2018). 

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