CHARLESTON, W.Va. — Members of the state Supreme Court questioned, during oral arguments Tuesday, whether a Wetzel County man’s plea to a kidnapping charge a few years ago should be vacated because misinformation was given.
Keith White, the attorney for John Michael Howell of New Martinsville, urged the Court not to vacate his client’s guilty plea to the 2010 kidnapping of his ex-wife but only enter an order correcting the sentence.
Howell agreed to a kidnapping charge with mercy, which carries a life prison term with the chance for parole, while a sexual assault charge was dropped. State code says White would have an opportunity for parole after 10 years but the judge, prosecutor and defense attorneys all said 15 years during the hearing.
White said it was an honest mistake and shouldn’t cost his client.
“This sentence just needs to be corrected. There was no intelligent, voluntary waiver by Mr. Howell. He was never told that the actual sentence would be 10 to life,” White told the Court.
But Justice Allan Loughry questioned whether the plea deal was legal because it was based on wrong information.
“If we agree with you shouldn’t the entire plea agreement be vacated?” Loughry asked.
State Assistant Attorney General Zachary Viglianco argued the plea and sentence should stay as they are and not corrected.
“He expressly stated on the record, multiple times, that he wanted to have the kidnapping plea. That he understood that he would not be eligible for parole until he spent 15 years incarcerated and he was fine,” Viglianco said.
“He was fine because he had bad information,” Chief Justice Margaret Workman countered.
Viglianco said White, Howell’s attorney, should have caught the mistake during the hearing and said something.
“The petitioner’s rights are protected in our adversarial system by his counsel and to the extent that he received inadequate advice from his counsel then ineffective assistance from counsel is the remedy,” Viglianco said.
But White said there’s no conspiracy behind what happened.
“It was just literally a mistake and all we’re asking this Court to do is correct the mistake,” White.
Howell may end up spending the rest of his life in prison. White said he urged him to take the sexual assault plea in that Jan. 5, 2016 hearing. He said if that would have happened he world now be just nine years from having his sentence fully served.
The Supreme Court will hand down an opinion in the case later this year.