State of West Virginia v. Cindy v. Allman , 234 W. Va. 435 ( 2014 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2014 Term
_______________ FILED
November 6, 2014
released at 3:00 p.m.
No. 13-0779 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
_______________ OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiffs Below, Respondent
v.
CINDY V. ALLMAN,
Defendant Below, Petitioner
____________________________________________________________
Appeal from the Circuit Court of Harrison County
The Honorable James A. Matish, Judge
Criminal Action No. 10-F-79-3
AFFIRMED
____________________________________________________________
Submitted: October 1, 2014
Filed: November 6, 2014
Jonathan Fittro, Esq. Patrick Morrisey, Esq.
Clarksburg, West Virginia Attorney General
Counsel for the Petitioner Laura Young, Esq.
Assistant Attorney General
Shannon F. Kiser
Assistant Attorney General
Charleston, West Virginia
Counsel for the Respondent
JUSTICE BENJAMIN delivered the Opinion of the Court.
SYLLABUS BY THE COURT
“‘The Supreme Court of Appeals reviews sentencing orders . . . under a
deferential abuse of discretion standard, unless the order violates statutory or
constitutional commands.’ Syl. Pt. 1, in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d
221 (1997).” Syl. pt. 1, State v. James, 227 W. Va. 407, 710 S.E.2d 98 (2011).
i
Benjamin, Justice:
This case comes before us pursuant to the appeal by Cindy V. Allman of
the July 1, 2013 order of the Circuit Court of Harrison County, wherein Ms. Allman was
sentenced to life imprisonment without the possibility of parole. Ms. Allman asserts that,
in return for her guilty plea to a single count of felony murder, the prosecutor agreed to
recommend to the circuit court that she be granted eligibility for eventual parole from the
required life sentence. Although the prosecutor complied with the agreement, the court
declined to accept the State’s recommendation. On appeal, Ms. Allman contends that the
circuit court did not adequately justify its decision to depart from the plea agreement and
recommendation. This Court has before it all materials of record, the parties’ respective
briefs, and the argument of counsel. Based upon our review of this matter and for the
reasons set forth herein, we affirm the circuit court’s sentencing order.
I.
FACTUAL AND PROCEDURAL BACKGROUND
At about 4:30 a.m. on October 25, 2009, Ms. Allman, having used heroin
and cocaine earlier in the evening, stood with Jeffery Taylor just outside the home of
Terry K. Lewis, while Alexander Bosley waited in a nearby vehicle. The group was in
search of money and valuables. Ms. Allman and Mr. Taylor entered the Lewis residence
through the unlocked front door, then armed themselves with knives they found in the
kitchen. Shortly thereafter, Mr. Taylor confronted Mr. Lewis in the bedroom, where Mr.
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Lewis had been sleeping along with his eight-year-old grandson. Mr. Taylor stabbed Mr.
Lewis, who stumbled into the hallway screaming and looking for help. There Mr. Lewis
encountered Ms. Allman, from whom he received additional stab wounds. The wounds
Mr. Lewis sustained from each attack proved to be independently fatal.
About three weeks afterward, on November 15, 2009, the police received a
telephone call from Mr. Taylor’s estranged girlfriend. The woman disclosed what she
knew concerning the killing, which led to the arrests of Ms. Allman, Mr. Taylor, and Mr.
Bosley. The grand jury returned an indictment on May 4, 2010, charging each of the
three arrestees with felony murder and with conspiracy to commit burglary. The trio
entered into separate agreements with the State to plead guilty to the murder charge, in
exchange for dismissal of the conspiracy charge and for the prosecutor recommending at
sentencing that each be deemed eligible for parole after serving fifteen years of a life
term. See W. Va. Code § 61-2-1 (1991) (explaining that murder “in the commission of,
or attempt to commit . . . burglary . . . is murder of the first degree”); W. Va. Code § 62­
3-15 (1994) (mandating sentence of life imprisonment for first-degree murder and
instructing that if an accused pleads guilty to that charge, “the court may, in its discretion
. . . provide that such person shall be eligible for parole . . . in the same manner and with
like effect as if such person had been found guilty by the verdict of a jury and the jury
had recommended mercy, except that . . . such person shall not be eligible for parole until
he or she has served fifteen years”).
2
The circuit court accepted the defendants’ respective pleas after hearings
conducted in accordance with Rule 11 of the West Virginia Rules of Criminal Procedure.
See infra Part III. The probation officer prepared presentence investigation reports, and
each of the three defendants came before the court for sentencing on October 28, 2010.
At the conclusion of that hearing, the court rejected the State’s recommendation for
mercy and, by order of November 24, 2010, sentenced all three defendants to life without
the possibility of parole. Ms. Allman moved for reconsideration, and she also filed a
complaint against her lawyer with the Office of Disciplinary Counsel. The court held
Ms. Allman’s motion in abeyance pending resolution of the disciplinary complaint and
pending appellate proceedings initiated by Mr. Taylor.1
On June 19, 2013, the circuit court conducted a second sentencing hearing
pertaining solely to Ms. Allman. By order of July 1, 2013, the court reimposed the
original sentence of life imprisonment without the possibility of parole. Ms. Allman
appealed the sentencing order on August 1, 2013, and, though filed one day late, the
appeal was permitted to proceed for good cause shown, in accordance with this Court’s
1
Mr. Taylor filed his own motion for reconsideration, but, on January 6, 2011,
before obtaining a ruling, he petitioned this Court for appeal. On October 20, 2011, we
entered an order dismissing the petition without prejudice to being refiled once the circuit
court has disposed of the reconsideration motion.
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order of August 5, 2013. See W. Va. R. App. P. 5(b) (directing that the notice of appeal
be filed “[w]ithin thirty days of entry of the judgment being appealed,” although the time
period may be extended beyond the thirty-day window “for good cause shown”).
II.
STANDARD OF REVIEW
Ms. Allman does not contend that she was sentenced unconstitutionally or
in violation of any statute. We therefore review the sentencing order merely to ensure
that the circuit court did not abuse its discretion by denying Ms. Allman the possibility of
parole for the duration of her life imprisonment. See syl. pt. 1, State v. James, 227 W.
Va. 407, 710 S.E.2d 98 (2011) (“‘The Supreme Court of Appeals reviews sentencing
orders . . . under a deferential abuse of discretion standard, unless the order violates
statutory or constitutional commands.’ Syl. Pt. 1, in part, State v. Lucas, 201 W.Va. 271,
496 S.E.2d 221 (1997).”).
III.
ANALYSIS
The plea agreement stipulated that it was governed by “Rule 11(e)(1)(B) of
the West Virginia Rules of Criminal Procedure,” and it further indicated that Ms. Allman
had been made “fully aware that the Court is not bound by any recommendations made
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by the State.”2 Ms. Allman’s “Type B” agreement—so labeled to correspond with the
pertinent subparagraph of Rule 11(e)(1)—stands in contrast to “Type C” plea agreements
negotiated pursuant to the succeeding subparagraph. In a Type C arrangement, the
parties reach a mutual agreement “that a specific sentence is the appropriate disposition
of the case.” W. Va. R. Crim. P. 11(e)(1)(C). We have previously explained that if a
defendant has entered into a Type C plea agreement with the State, “the trial court may
either accept or reject the entire agreement, but it may not accept the guilty plea and
impose a different sentence than that agreed upon.” State ex rel. Forbes v. Kaufman, 185
W. Va. 72, 76, 404 S.E.2d 763, 767 (1991).
Ms. Allman acknowledges that her Type B plea agreement did not legally
bind the circuit court. She nonetheless suggests that a sentencing order should evidence
the court’s thorough contemplation of the Type B agreement and must give the State’s
recommendation more than mere lip service. Otherwise, says Ms. Allman, the agreement
has no value except to the extent that it happens to be predictive of the court’s
predisposition. Before rejecting a prosecutorial recommendation that the defendant
2
The referenced rule provides specifically that the State, in exchange for a
defendant’s guilty plea, may “[m]ake a recommendation or agree not to oppose the
defendant’s request[] for a particular sentence, with the understanding that such
recommendation or request shall not be binding upon the court.” W. Va. R. Crim. P.
11(e)(1)(B).
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eventually be considered for parole, Ms. Allman posits, a circuit court must make a
specific finding that the plea agreement fails to serve the interests of justice.
At the initial sentencing hearing, the circuit court made clear that it “is
always mindful of plea agreements,” and it recited that the agreement in Ms. Allman’s
case “calls for the State to recommend that [she] be eligible for parole after having served
fifteen years.” In the corresponding order, the court explained that it “did consider the
mitigating factors of the defendant’s age, lack of parental supervision or help, and history
of substance abuse, physical abuse, [and] sexual abuse.” The court nonetheless declined
to recommend that Ms. Allman be eligible for parole “based upon her representations in
the presentence investigation report, [her] lack of work history yet ability . . . to go from
one fix to the next, and the burglary of a home in the nighttime resulting in the stabbing
death of the homeowner in front of his minor grandchild.”3 Emphasizing this last factor
in particular, the court remarked that the boy’s presence during the attack on his
grandfather “would cry out for a jury . . . not to grant any mercy.”
3
The circuit court elaborated from the bench that Ms. Allman’s statements to her
probation officer attempted “to mitigate [her] role[] in the events of that night and . . . put
the blame on the other individuals.” Ms. Allman’s excuses, the court reasoned, rendered
it “very questionable” that she had accepted responsibility for her actions.
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The circuit court’s statements leave no room to surmise that it
misunderstood what the plea agreement provided. The court manifestly was aware that
the State had recommended parole eligibility, and it undoubtedly realized that it could
accept that recommendation. Moreover, Ms. Allman does not contend that she entered
into the plea agreement involuntarily, or without being advised competently, or that she
failed to comprehend the extent of the court’s discretion.4
A circuit court speaks through its written orders, which, “as a rule, must
contain the requisite findings of fact and conclusions of law “‘to permit meaningful
appellate review.’” State v. Redman, 213 W. Va. 175, 178, 578 S.E.2d 369, 372 (2003)
(quoting syl. pt. 3, in part, Fayette Cnty. Nat’l Bank v. Lilly, 199 W. Va. 349, 484 S.E.2d
232 (1997)). Here, the circuit court spoke plainly. Though perhaps not invoking the
precise words that Ms. Allman may have preferred, the sentencing order unquestionably
reflects that the court carefully weighed the interests of justice in this particular instance
against the general systemic interest in permitting the parties to a negotiated plea
agreement to realize their expectations regarding its effect. From all indications, the
4
The law is familiar with those types of sentencing defects, and methodologies
have been established to correct such errors when they occur. See, e.g., State v. Yoak,
202 W. Va. 331, 335, 504 S.E.2d 158, 162 (1998) (remanding for reconsideration of
sentence based on circuit court’s erroneous conclusion that it lacked authority to direct
home confinement); State ex rel. Clancy v. Coiner, 154 W. Va. 857, 865, 179 S.E.2d 726,
731 (1971) (granting collateral relief and vacating petitioners’ convictions and sentences
on ground that guilty pleas were falsely induced and therefore involuntary).
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court’s rejection of the State’s recommendation was an appropriate exercise of its
legitimate discretion, with no evidence of predisposition.
The Type B plea agreement in this case allocated to Ms. Allman the risk
that she and her counsel would overestimate the circuit court’s inclination to be
persuaded by the prosecution’s recommendation. That is how agreements are supposed
to work. Had Ms. Allman been in a stronger bargaining position (that is, had the conduct
surrounding her offense not “cried out” for a jury to withhold mercy), she might have
been able to negotiate a Type C plea arrangement that the court would have been
constrained to either take or leave.
In Williams v. New York, 337 U.S. 241 (1949), the Supreme Court of the
United States reviewed a death sentence imposed on the defendant for a murder
committed during a burglary. The trial court, relying on information contained in the
presentencing report, rejected the jury’s recommendation that the defendant be sentenced
to life in prison. Justice Black, writing for the Court, rebuffed the defendant’s assertion
of a due process violation, reminding us that “there is possibility of abuse wherever a
judge must choose between life imprisonment and death.” Id. at 251. The Court
observed further “that no federal constitutional objection would have been possible if the
judge here had sentenced appellant to death because appellant’s trial manner impressed
the judge that appellant was a bad risk for society, or if the judge had sentenced him to
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death giving no reason at all.” Id. at 252. Justice Black characterized the discretion
afforded the trial court as an “awesome power,” id., vividly illustrating the vast extent to
which society relies on sentencing judges to wield that discretion with solemnity and due
deliberation. Ms. Allman’s circumstances are materially indistinguishable from those
confronted by the Supreme Court sixty-five years ago in Williams. We can discern no
abuse of the circuit court’s discretion herein.
IV.
CONCLUSION
Pursuant to the foregoing, we affirm the circuit court’s order sentencing
Ms. Allman to life imprisonment without parole.
Affirmed.
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