By Kate White
The Charleston Gazette
CHARLESTON, W. Va. — A Summers County man serving a lifetime jail sentence won’t be allowed to withdraw his guilty plea, even though he entered into it thinking he could only get up to 10 years in jail, a divided state Supreme Court ruled.
The man, identified by the court only as Keith D., made a deal with prosecutors and pleaded guilty in 2013 to the third-degree sexual assault of his step-daughter. The court withholds Keith’s last name to protect the identity of the victim.
At the time he entered into the plea agreement, Keith believed he faced only a 10-year jail sentence, but before he was sentenced, prosecutors filed information that Keith was a habitual offender and had been convicted of two prior felony charges.
Keith was previously convicted of grand larceny in 1996 and voluntary manslaughter in 2004. Keith tried to withdraw his guilty plea, arguing that he was never advised his plea subjected him to a potential life sentence as a habitual offender. But Summers County Circuit Judge Robert Irons wouldn’t let him and in October 2013, Irons sentenced Keith to life in prison with mercy, meaning he could be released on parole after 15 years.
On appeal, Keith’s attorney argued that Irons erred in not allowing Keith to withdraw his guilty plea prior to sentencing. The judge or the prosecutor should have informed him before he entered into a plea agreement that the third-strike exposed him to a life sentence, Keith’s attorney, Kanawha County public defender Matthew Brummond, wrote.
In a 3-2 decision filed Thursday, Supreme Court justices Brent Benjamin, Margaret Workman and Allen Loughry said, that while it is preferable for a prosecutor to inform a defendant prior to his or her conviction of their plan to file habitual offender information, state law doesn’t require it.
In a 15-page opinion, affirming Keith’s sentence, Benjamin wrote that “the filing of a habitual offender information is a collateral and not a direct consequence of a guilty plea.”
Justices Robin Davis and Menis Ketchum filed separate dissents. Davis wrote that Keith should have been told by the judge or the prosecutor that he was exposed to a possible life sentence. She added that the state’s Rules of Criminal Procedure mandate the court to inform a defendant of “the maximum possible penalty provided by law.”
In a much more strongly worded dissent, Ketchum said Keith was “slip-shucked” and “hoodwinked” by the prosecutor. Ketchum says the state should adopt the law of other states, which requires prosecutors to notify the defendant if they plan to seek an additional sentence for being a habitual offender.
“It is extremely unfair for the state to agree to a maximum sentence and not reveal that it will seek additional prison time soon after the defendant pleads guilty,” Ketchum wrote. “A deal is a deal. The state should not be allowed to entice a defendant to plead guilty by agreeing to a plea bargain without informing the defendant that it will seek a recidivist information which will result in more prison time.”