HOWELL

MOUNDSVILLE — Marshall County prosecutors are taking legal action against a senior status judge who upheld a plea deal — even after prosecutors had orphaned it.

Prosecutor Rhonda Wade said Monday that her office is filing a writ of prohibition against retired Judge Arthur Recht because the now senior status judge upheld a submitted, then withdrawn, plea agreement with John Howell. Wade said she expects to file the writ by the end of this week.

According to prosecutors, the attorneys had offered a plea deal to Howell’s lawyers, including kidnapping charges, after a decision by the West Virginia Supreme Court of Appeals returned Howell’s case to the negotiating table in April. Prosecutors drafted the deal earlier this month and sent it to defense attorneys Mark Panepinto and Keith White. However, before the ink was dry, prosecutors said the alleged victim contacted them and rejected the terms of the agreement. That led to them canceling the offer.

However, Recht upheld the submitted plea agreement at a hearing Monday afternoon, which was signed by Howell’s attorneys — but not by Assistant Prosecutor Herman Lantz on behalf of the state. Lantz said his opinion is that Recht robbed the state of the authority over its plea agreement.

“We, as the state, refused to sign the plea agreement, and we intend to seek a writ of prohibition against Judge Recht,” Lantz said. “We feel that his decision is contrary to the law. … The state has the right to revoke a plea agreement — that’s my position. He essentially said, ‘No, the state doesn’t have the right to revoke an offer,’ even though that offer was never communicated to the defendant prior to it being revoked.”

According to Lantz, Recht had told the alleged victim in the case — who had directly voiced her objections to the earlier possibility of parole — that she was welcome to voice her objections with the parole board when Howell would be up for evaluation in 10 years.

“(Recht) addressed that ahead of time — just because he’s up for parole in 10 years, doesn’t mean he’s getting out in 10 years,” said Lantz. “(The judge said) ‘You can bring it up with the parole board. The prosecutors can go talk to the board, the police officers can go talk to the parole board.'”

Court documents indicate that Assistant Prosecutor Andrea Poling had communicated the orphaned plea agreement to Howell’s attorneys. Wade said the quick turnaround was a normal affair for her office.

“We called the victim, who wasn’t home, we called Mr. White and made the offer of 10 years,” Wade said. “The victim calls us back and said she’s not OK with that.

“We do that every day,” she said. “I could do it because I can’t find a witness, but if a witness then walks through my door, I’ll call the defense and say, ‘I’m withdrawing my offer.'”

When contacted after the hearing, Recht declined to comment.

“I don’t comment at all,” Recht said Monday evening. “There was a whole day-long hearing. The order speaks for itself.”

In 2010, Howell allegedly kidnapped a woman and attacked her before eventually being indicted for charges of kidnapping, malicious assault, sexual assault and attempted sexual assault. Since his indictment, Howell has been notorious for his courtroom behavior — cycling through more than a dozen retained attorneys, and at one time appearing masked in court because he spat on Wetzel County Prosecutor Timothy Haught. The case was eventually moved to Marshall County for the retrial.

Howell has been behind bars since 2016, when he first accepted a plea deal. He pleaded guilty to kidnapping and was ordered a life sentence with the possibility of parole after 15 years. Howell appealed the plea deal on the grounds that his previous attorneys did not inform him that the state statute for kidnapping calls for mercy after 10 years. The higher court agreed with him in April 2018, which returned Howell’s case to the negotiating table. In a 4-1 decision, during which Chief Justice Allen Loughry concurred, the appeals court agreed that Howell’s attorneys had been mistaken in not communicating the possible penalties of his plea.

“When a criminal defendant pleads guilty, the defendant must be accurately informed of the consequences of the plea,” the memorandum stated. “Although inadvertent, this failure to correctly advise the petitioner of the law carries a significant impact – it results in the petitioner serving an additional five years in prison before he may seek release on parole. Under these facts, we conclude that the petitioner’s guilty plea was not knowing, intelligent, and voluntary.”

Both Wade and Lantz said the plea agreement drops three other charges against Howell and the extra five years in his plea agreement was consideration for those charges.

“Our position was, he can agree to do more, because we dismissed those other charges,” Lantz said.