          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.


                                              1

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.



                                             3

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




                                             4

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).



                                             5

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.



                                               6

              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).



                                              7

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


                                             8

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.




                                              9

