The appellant, Michael Palmer (“Palmer”), appeals the denial of his motion to dismiss several criminal charges, claiming that the dismissal of the charges was part of a plea agreement. Palmer contends that the Circuit Court of Summers County erred in fail
I.
In 1997, Palmer was charged in the Circuit Court of Summers County, in two, two-count indictments,
On November 10, 1997,
On November 10, 1997, the circuit court asked Palmer if he was willing to enter into the agreement, and to plead guilty as agreed. Palmer affirmed his willingness to plead, and the court acceptеd the plea agreement. Palmer then entered a plea of guilty to the two felony charges. Sentencing was postponed until after a presentence investigation was performed.
Concurrent with the plea negotiations betwеen the State and Palmer, law enforcement officers were conducting an investigation involving alleged illegal drug activity by Palmer and others. Trooper Bradley of the .West Virginia State Police conducted the drug investigation jointly with the United Statеs Attorney’s Office. Trooper Bradley had also conducted the investigation into Palmer’s burglary and grand larceny, the criminal acts to which the appellant plead guilty on November 10,1997.
At the conclusion of the drug investigation, the United States Attornеy’s Office declined to prosecute Palmer. Trooper Bradley then turned the results of the investigation over to the Summers County prosecuting attorney on November 14,1997 — only 4 days after the plea agreement was reached and the guilty pleas were taken by the court. The prosecuting attorney almost immediately prepared drug charges against Palmer. On November 19, 1997, the Summers County Grand Jury returned a nine-count indictment against Palmer, Criminal Action No. 97-F-70.
Palmer moved to dismiss Criminal Action No. 97-F-70, arguing that the charges in the indictment involved matters that were pending or under investigation at the time Palmer entered into the plea for Criminal Action Nos. 97-F-10 and 97-F-ll.
The circuit court denied Palmer’s motion, finding that neither the prosecuting attorney nor defеnse counsel were aware of the pending drug investigation at the time when the parties entered into the agreement. The circuit court then permitted the State to reform the plea agreement without the agreement of the defеndant, so that it allowed the State to proceed against Palmer on the drug charges. The circuit court also afforded Palmer the opportunity to withdraw his plea of guilty.
The presentence investigation was completed for criminal cases 97-F-1Q and 97-F-ll, and a “Plea Order” was entered on January 7, 1998, essentially outlining the plea
Reserving his right to appeal the drug charge indictments, Palmer entered into a plea agreement with the State in Criminal Action No. 97-F-70 and was sentenced on November 10, 1998, for a term of 3 to 25 years to run concurrently with his sentence in eases 97-F-10 and 97-F-ll.
Palmer then appealed the denial of his motion to dismiss the drug charges in Criminal Cаse No. 97-F-70, contending that the State was prohibited from bringing charges against him for crimes that were being investigated at the time the plea agreement was reached in cases 97-F-10 and 97-F-ll.
II.
The standard of review for issues involving the breach of a plea agreement is set forth in Syllabus Point 1 of State ex rel. Brewer v. Starcher,
Cases involving plea agreements allegedly breached by either the prosecution or the circuit court present two separate issues for appellate consideration: one fаctual and the other legal. First, the factual findings that undergird a circuit court’s ultimate determination are reviewed only for clear error. These are the factual questions as to what the terms of the agreement were and what was the cоnduct of the defendant, prosecution, and the circuit court. If disputed, the factual questions are to be resolved initially by the circuit court, and these factual determinations are reviewed under the clearly "erroneous standard. Seсond, in contrast, the circuit court’s articulation and application of legal principles is scrutinized under a less deferential standard. It is a legal question whether specific conduct complained about breached the plea agreement. Therefore, whether the disputed conduct constitutes a breach is a question of law that is reviewed de novo.
Therefore, when the facts are not in dispute, “the question of whether the State’s conduct breached the terms of a plea .agreement is a question of law that we review de novo.” State v. Myers,
We have traditionally applied rules of contract law to plea agreements. “As a matter of criminal jurisprudence, a plea agreement is subject to principles of contract law insofar as its application insures a defendant receives that to which he is reasonably entitled.” Brewer,
The State argues that the plea order entered by the circuit court on January 7, 1998, on the original chаrges did not contain the pertinent language “all charges pending or under investigation.” The State contends that a plea agreement alone is not enforceable until entered by the sentencing court. The State cites to Mabry v. Johnson,
The United States Supreme Court in Ma-bry stated:
A plea bargain standing alone is 'without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive аn accused of liberty or any other constitutionally protected interest. It is the ensuing guilty plea that implicates the Constitution.
Id. at 507-508,
In the instant case, we note that the plea order was drafted several months after the plea agreement was writtеn, signed by both parties, and accepted by the circuit court. More importantly, we note that the plea order was drafted after Palmer entered his
We have long adhered to the principle that “when a plea rests in any significant degree on a promisе or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration [for the plea], such promise must be fulfilled.” Santobello v. New York,
Consequently, “when a defendant enters into' a valid,plea agreement with the State that is accepted by the trial court, an enfоrceable ‘right’ inures to both the State and the defendant not to have the terms of the plea agreement breached by either party.” State v. Myers,
We further note that the investigation of the drug activity was being conducted by Trooper Bradley — the same officer who was involved in the investigation of the burglary and larceny activities charged in criminal cases 97-F-10 and 97-F-ll. We have previously imputed the knowledge of the invеstigating officer to the prosecution stating that “[e]ven if the prosecution was unaware of [the contested evidence], which seems quite unlikely considering all the circumstances, what [the investigating officer] knew must be imputed to the prosеcution. He was a part of the prosecution.” State v. Hall,
The prosecutorial team of the State agreed to the pertinent language in the plea agreement and now must adhere to this agreement. “A prosеcuting attorney or his successor is bound to the terms of a plea agreement once the defendant enters a plea of guilty or otherwise acts to his substantial detriment in reliance thereon.” Syllabus, State ex rel. Gray v. McClure,
Absent extraordinary circumstances, neither the State nor a circuit court judge may modify a valid plea agreement once accepted. “Once a circuit court unconditionally accepts on the record a plea agreement under Rule 11(e)(1)(C) of the West Virginia Rules of Criminal Procedure, the circuit court is without authority to vacate the plea and order reinstatement of the original charge.” Syllabus Point 4, in part, State ex rel. Brewer v. Starcher,
III.
Consequently we find that the circuit court committed reversible error in denying Palmer’s motion to dismiss the charges under Criminal Action No. 97-F-70, and we re
Reversed and Remanded.
Notes
. Criminal Action Nos. 97-F-10 and 97-F-ll.
. According to the brief for the State the plea agreement contract was drafted on October 29, 1997, and signed by the defendant and the рrosecuting attorney on November 10, 1997.
. The November 10, 1997 plea agreement provided for the following:
2. Resolution of charges: Defendant will plead guilty as charged to grand larceny as contained in count 2 of the two Summers County indictments for Criminаl Actions No: 97-F-10 and 97-F-ll. These are felony offenses. After the Court accepts this plea, the State will move to dismiss each county number 1 of the two Summers Couniy indictments, and all charges now pending or under investigation except for battery on a рolice officer (Summers County Magistrate Case No. 97-M-19), with prejudice.
. We recognize that'the plea agreement in this case is unique. If an investigation had been conducted wherein the identity of the suspect was not known at the time of the plеa agreement but was later shown to be Palmer, we might reach a different result.
. Rule 11(e)(1)(C) [1995] of the West Virginia Rules of Criminal Procedure provides the procedure to be followed for plea agreements.
. Palmer raises another issue on appeal concerning the plea agreement. Due to our decision in this matter, we do not address this additional assignment of error.