West Virginia Supreme Court Tosses Kidnapping Conviction

MOUNDSVILLE — A man whose case was moved from Wetzel County to Marshall County after he spit on a prosecutor will get another day in court after the West Virginia Supreme Court of Appeals decided he deserves a new trial.

According to Marshall County Assistant Prosecuting Attorney Herman Lantz, the appellate court issued a memorandum decision vacating the guilty plea and conviction of 49-year-old John Michael Howell. Justices Robin Jean Davis, Menis E. Ketchum, Allen H. Loughry II and Elizabeth D. Walker concurred.

But Chief Justice Margaret L. Workman dissented, saying, “It is like swatting flies with a sledgehammer to decimate an entire plea agreement when a simple modification that complies with the law would suffice.” She said the error was made by the judge and both lawyers, not the defendant.

Meanwhile, Lantz said he was not happy with the outcome.

“All I can say is the state felt the plea should’ve been upheld,” he said. “(Howell) appealed it, saying he did not know. We feel he knew what he was pleading to.”

According to the April 13 memorandum, the case is “remanded to the circuit court, where the parties are to be returned to their respective positions post-indictment but prior to the entry of the plea agreement.”

Jury selection will begin July 9 at the Marshall County Courthouse.

Howell was indicted by the Wetzel County grand jury in January 2011 on four criminal charges: kidnapping, attempted sexual assault in the second degree, sexual assault in the first degree and malicious assault.

Howell’s proceedings began in Wetzel County, but the case was moved to Marshall County in July 2014 after Howell spat on Wetzel County Prosecutor Timothy Haught during a hearing. Howell was then required to wear a spit guard in court for the next several proceedings.

Because the kidnapping charge carries a possible life sentence, Howell was entitled to two lawyers. He requested new lawyers more than a dozen times following his initial arrest, causing several delays.

His trial then began in January 2016, and after a recess during jury selection, counsel announced a plea agreement had been reached.

Howell pleaded guilty to kidnapping and was sentenced to life in prison with mercy.

It is noted in the appellate documents that the written plea agreement said Howell would be eligible for parole after 15 years in prison.

However, after his plea and receiving the plea and sentencing order, Howell argued he should be eligible for parole consideration after 10 years of incarceration. Howell cited the state kidnapping statute, which provides 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.” The state objected to Howell’s protests, saying that Howell serving at least 15 years in prison was “the essence of the plea agreement.”

The circuit court, after a hearing, declined to amend the order to reflect parole eligibility after 10 years of incarceration. The circuit court then entered an amended order which included the court’s ruling on the parole eligibility period. Howell, however, then filed an appeal with the appellate court.

On Oct, 23, 2017, the appellate court affirmed the circuit court’s May 2016 sentencing order.

Howell filed a petition for rehearing, which was granted in February.

The state has argued Howell is bound by the 15-year parole eligibility provision because it was discussed no fewer than five times and was set forth in the written plea agreement.

Howell has said that although the 15-year period was specified, no one ever told him the parole statue only requires 10 years.

The court ruled Howell’s guilty plea was not “knowing, intelligent and voluntary.”


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