Can a Prosecutor Reopen a Plea Agreement After It Is Signed?

Attorney Answer

A signed and accepted plea agreement is a binding contract, not a draft — and if you have already done your part, West Virginia's highest court has held the State does not get to take it back.

West Virginia Rule of Criminal Procedure 11(e) governs plea agreements. Rule 11(e)(1) permits the parties to agree that the State will move to dismiss charges, recommend a sentence, or agree not to seek further indictment. Rule 11(e)(2) requires the agreement to be disclosed in open court when the plea is offered. Rule 11(e)(3) provides that "if the court accepts the plea agreement, the court shall inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement." And under Rule 11(e)(4), if the court rejects the agreement, it must say so on the record and give you the opportunity to withdraw your plea.

Read those together and one distinction becomes important to your case: acceptance by the court binds the court to embody the agreed disposition in its judgment. So the first question your lawyer needs to answer is whether the court accepted the agreement and whether you have performed your side of it. Signatures on a document are not always the same thing as the court's acceptance on the record.

Where you have performed, the answer is strong. In State ex rel. Thompson v. Pomponio, 233 W. Va. 212, 757 S.E.2d 636 (2014), a successor prosecutor sought to reinstate charges that had been dismissed under a plea agreement, arguing the agreement was not specific and was silent on whether the dismissal was with prejudice. The circuit court sided with the State. The Supreme Court of Appeals reversed course and granted a writ of prohibition: where a defendant has performed his obligations and the court has dismissed charges pursuant to the agreement, the State may not later reprosecute those charges. Ambiguity in the agreement is construed in the defendant's favor, the agreement is binding, and the defendant was entitled to specific performance — dismissal of the reinstated charges with prejudice, and release from custody if the challenged indictment was the sole basis for confinement.

What you can do

1. Appear on the date in the notice, and appear with a lawyer. Do not go alone and do not agree to anything at the hearing. 2. Get the complete file before that date: the signed agreement, the transcript or recording of the plea hearing, and the order. The decisive question is whether the court accepted the agreement on the record. 3. Write down exactly what you have already done under the deal — payments, classes, community service, restitution, testimony, guilty plea entered — with dates and receipts. Performance is what the argument rests on. 4. Read the State's motion closely and identify the specific ground it claims. "New information" and "we changed our mind" are very different arguments. 5. Have counsel file a written response asking the court to enforce the agreement as written, and to construe any ambiguity in your favor. 6. If the court will not enforce it, ask counsel about a writ of prohibition to the Supreme Court of Appeals — that is exactly the route the defendant used in Thompson. 7. Keep performing your own obligations while this is pending. If you stop, you hand the State the one argument that could defeat you.