CHARLESTON, W.Va. — This week the state Supreme Court will consider whether a plea deal was fair for a man whose sexual assault and kidnapping case lasted five years and a dozen lawyers.
Charges against John Michael Howell of New Martinsville stemmed from a 2010 incident.
On Dec. 14, 2010, Howell asked his ex-wife to have sex. When she refused, he held her at knifepoint, choked her and then tied her to their bed and sexually assaulted her, according to court documents.
He was accused of stabbing his ex-wife’s breast implant with a syringe and punching her genitals with his fist after she tried to leave home with their child.
Howell initially pleaded innocent to a 4-count indictment in 2011. His case dragged on for five years as Howell asked to change attorneys over and over.
The case was moved to Marshall County in 2014 after Howell spat on Wetzel County Prosecutor Timothy Haught during a court proceeding. In addition to the change in venue, Howell was required to wear a spit guard after that.
As a jury was being selected for a trial that was finally about to begin on Jan. 5, 2016, Howell decided to take a plea for the kidnapping charge.
The result was a life sentence with eligibility for parole after 15 years.
Now Howell and his attorneys are arguing that state law should entitle him to parole eligibility after 10 years.
Circuit Judge Arthur Recht, who heard the original case, has already rejected the argument.
Supreme Court justices agreed to hear the case. An order by the court says Justice Allan Loughry would have refused the petition.
So oral arguments in the Supreme Court are scheduled for this Tuesday.
Howell’s lawyer, Keith White of St. Marys, says he was never informed during his plea hearing that he was waiving any statutory right. Howell also was not informed of the existence of the right he was waiving, the lawyer contends.
Lawyers for the state, represented by Assistant Attorney General Zachary Aaron Viglianco, present the question this way:
“Can a criminal defendant agree, as part of a negotiated plea agreement to delay the date of his parole eligibility or does any deviation from the text of the relevant statutes result in an illegal sentence?”
The plea agreement was hatched during a 45-minute recess on the first day of Howell’s trial.
Howell was given two options: He could plead guilty to first-degree sexual assault and receive a sentence to 15 to 35 years. Or he could plead guilty to kidnapping and receive a life sentence with the possibility of parole along with credit for time served.
Howell picked the second option, the life sentence for the kidnapping charge.
The plea agreement that Howell accepted said, “The defendant will be eligible for parole after serving a minimum of 15 years with credit for time served. The defendant understands that he may never be paroled; that matter will be left to the parole board.”
Howell’s lawyer points to a section of code that says an inmate sentenced for life may not be paroled until he or she has served 10 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 15 years.
Howell had been convicted only once.
Howell’s lawyer says no one told the defendant about that part of statute.
“In the present case, there is nothing on the record to indicate that the defendant was informed that he had a statutory right he was waiving,” White wrote in a brief for the court.
Howell knew what he was agreeing to — but not that the law indicated anything different, White wrote.
“The fact that the petitioner may have been informed five times that he would be eligible for parole after 15 years cannot constitute the waiver of a right to which he was never informed,” White wrote.
Lawyers for the state say Howell was well aware of his agreement.They point to a brief exchange that took place in court.
Prosecutor: May I put something on the record?
Prosecutor: Essentially, the plea we’re offering, you plead to kidnapping with a recommendation of mercy. You’re going to meet the parole board after 15 years. The parole board is going to decide whether you get parole or not. None of us here are going to decide. I’ll be gone. I can’t tell you what the next prosecutor will or will not do. Judge Recht has told you that he’s going to make a recommendation of parole. There’s no guarantee the parole board will accept that… it may work, but if you’re in prison for the rest of your life, that’s a possibility and you need to accept that.
Howell: It would be because of my doing.
“Clearly then, having discussed the plea agreement with his counsel, listened to repeated explanations of the terms of the agreement by the attorneys and presiding judge, and affirmatively represented that he understood those terms and was willing to accept them, it is apparent from a review of the record that petitioner knowingly, intelligently, and voluntarily demonstrated his willingness to accept the sentence provided by the plea agreement in this case.”
Lawyers for the state also say eligibility for parole is a privilege, not a punishment.
“Parole eligibility is not part of the statutorily-prescribed punishment for a crime,” Viglianco wrote. “Instead it is an ‘act of grace’ — an opportunity (and only an opportunity) for an early release — granted by the Legislature to individuals convicted of a crime.”