Unaccepted Guilty Pleas Are Freely Withdrawable: Rule 32(e) Applies Only After Judicial Acceptance
(Justice Trump, concurring in part and dissenting in part)

1. Introduction

In State of West Virginia v. Richard William Page (W. Va. May 18, 2026), Justice Trump concurred with the Court’s decision to vacate the Circuit Court of Jefferson County’s judgment and remand for further proceedings, but dissented from the majority’s analytical path on a pivotal procedural question: what legal consequences follow when a guilty plea is tendered but the court has not accepted it.

The case’s posture was unusual. In February 2003, Mr. Page and the State presented a “binding” plea agreement under West Virginia Rule of Criminal Procedure 11(e)(1)(A) and (C) (including a specific sentence structure), yet the circuit court expressly deferred acceptance while ordering a presentence report and setting a later hearing. Mr. Page did not appear at the next hearing because he was arrested and incarcerated in Maryland, and a capias issued but was not executed for nearly twenty years. In 2023, after his eventual arrest in West Virginia, both the defendant and the State sought to move forward under a new plea arrangement—only for the circuit court to disregard the new agreement and treat the 2003 plea as effectively locked in. The dispute thus centered on (i) whether the 2003 guilty plea had ever been accepted and (ii) what standard governs withdrawal or modification in that interim.

2. Summary of the Opinion

Justice Trump agreed with the majority that the circuit court erred and that the judgment must be vacated and remanded. He also agreed with the majority’s core point that the circuit court incorrectly believed that a defendant who tenders a plea pursuant to a “binding” agreement is categorically unable to move to withdraw.

Where Justice Trump parted ways was the doctrinal vehicle. In his view, the record (especially the February 26, 2003 “PLEA PROPOSAL ORDER”) shows the court deferred acceptance of both the agreement and the plea until March 27, 2003; therefore, the plea was not “accepted” at all. Because Rule 32(e) addresses withdrawal of a plea in a posture that presupposes an accepted plea, he would hold that Rule 32(e) does not apply until acceptance—and that, before acceptance, a defendant should be permitted to withdraw “for any reason or no reason,” particularly when the State does not object. He also emphasized that the parties may renegotiate an inchoate, unaccepted agreement without judicial interference.

3. Analysis

3.1. Precedents Cited

Call v. McKenzie, 159 W. Va. 191, 220 S.E.2d 665 (1975)

Justice Trump cited Call v. McKenzie to situate the 2003 plea colloquy within established West Virginia requirements for ensuring a knowing, voluntary plea. The point was foundational: even if the colloquy occurred, the separate question remains whether the court formally accepted the plea.

U.S. v. Hyde, 520 U.S. 670 (1997)

U.S. v. Hyde is the centerpiece for the “separability” principle: “Guilty pleas can be accepted while plea agreements are deferred, and the acceptance of the two can be separated in time.” Justice Trump accepted Hyde’s framework but distinguished it on the facts. In Hyde, the district court clearly stated it was accepting the guilty plea while deferring the plea agreement. Here, by contrast, the only surviving contemporaneous documentation—the “PLEA PROPOSAL ORDER”—indicated deferral and contemplated a later moment when the court would “either accept or reject the Defendant’s plea.”

Justice Trump also relied on Hyde to underscore why acceptance matters: once a plea is accepted, the judicial proceeding acquires a gravity that is “debased” by automatic withdrawal. His dissenting move is to say that concern is inapplicable if the plea was never accepted.

U.S. v. Cordova-Perez, 65 F.3d 1552 (9th Cir. 1995)

Justice Trump referenced U.S. v. Cordova-Perez as an example of the pre-Hyde federal approach that treated plea acceptance as necessarily contingent on agreement acceptance when the plea was part of a deal—an approach Hyde rejected. The citation supports his broader argument that acceptance timing is a distinct legal event with distinct consequences.

State v. Myers, 204 W. Va. 449, 513 S.E.2d 676 (1998) (Syl. Pt. 4)

Justice Trump used State v. Myers to reinforce the contract-like enforceability of plea agreements once “accepted by the trial court”: rights inure to both sides not to have the agreement breached. The placement is telling—acceptance is the hinge. Before acceptance (his view of this case), the agreement remains unconsummated and thus not immutable.

State ex rel. Brewer v. Starcher, 195 W. Va. 185, 465 S.E.2d 185 (1995) (Syl. Pt. 8)

State ex rel. Brewer v. Starcher is invoked for remedies when a plea agreement is broken: specific performance or withdrawal, with prejudice to the defendant as a “major factor.” Justice Trump cited it to illustrate that West Virginia already conceptualizes plea agreements in remedial, contract-like terms; however, he treats those remedial frameworks as most pertinent after acceptance or detrimental reliance, not in the pre-acceptance, “inchoate” stage he identifies here.

State ex rel. Thompson v. Pomponio, 233 W. Va. 212, 757 S.E.2d 636 (2014) (Syl. Pt. 4)

Justice Trump cited State ex rel. Thompson v. Pomponio for the proposition that the prosecuting authority is bound once the defendant pleads guilty or otherwise acts to substantial detriment in reliance. The citation supports his separation-of-powers critique of the circuit court’s conduct in 2023: by forbidding renegotiation of an unaccepted arrangement that both parties wished to change, the court “usurped the prosecutorial powers and authority of the executive.”

State v. Palmer, 206 W. Va. 306, 524 S.E.2d 661 (1999) (Syl. Pt. 2) (quoting State ex rel. Gray v. McClure, 161 W.Va. 488, 242 S.E.2d 704 (1978))

The excerpted quote in the opinion situates prosecutorial obligations once a defendant pleads or detrimentally relies. Justice Trump deploys it to clarify that “binding” has multiple referents: binding as between parties (contract enforcement) versus binding on the court (a Rule 11(e)(1)(C) agreement, but only upon acceptance). This distinction is central to his critique of the circuit court’s conflation.

State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995)

Justice Trump relied on State v. Sugg for the categorical prohibition on judicial participation in plea negotiations: “Rule 11(e)(1) prohibits absolutely a trial court from all forms of judicial participation in or interference with the plea negotiation process.” This authority supports his view that the circuit court exceeded its role by preventing the parties from modifying an unaccepted bargain.

State v. Adkins, 249 W. Va. 688, 901 S.E.2d 52 (2024)

State v. Adkins is cited as a modern reaffirmation of Sugg’s “absolute” prohibition. Together, these cases supply the doctrinal backbone for Justice Trump’s claim that the circuit court’s insistence on resurrecting the 2003 deal (and rejecting the parties’ 2023 renegotiation) constituted impermissible judicial interference.

State ex rel. Reed v. Douglass, 189 W. Va. 56, 427 S.E.2d 751 (1993)

Justice Trump cited State ex rel. Reed v. Douglass to emphasize that West Virginia’s criminal rules are “patterned after the Federal Rules.” This matters because his proposed rule tracks the post-2002 federal amendments that expressly differentiate withdrawal standards depending on whether the court has accepted the plea.

3.2. Legal Reasoning

1. Acceptance is a distinct event with legal consequences. Justice Trump treats “acceptance” as the watershed. A court may (under Rule 11(e)(2)) defer acceptance/rejection of a Rule 11(e)(1)(C)-type agreement pending a presentence report. Under U.S. v. Hyde, a court can accept the plea while deferring the agreement. But the factual question is whether the court did accept the plea here.
2. The best evidence in the record indicates no acceptance. Because the 2003 transcript is missing, Justice Trump relies on the “PLEA PROPOSAL ORDER.” He reads its language—“defer acceptance or rejection” and “at which time the Court will either accept or reject the Defendant’s plea”—as inconsistent with any prior acceptance of the plea.
3. “Binding plea agreement” binds the court only upon acceptance; otherwise it is an attempted intrusion on sentencing power. Justice Trump explains the constitutional intuition behind Rule 11(e)(1)(C): sentencing is a judicial power, so parties can propose a sentence-binding deal, but the judiciary is not bound unless it accepts. Until acceptance, the agreement is “inchoate.”
4. Before acceptance, the parties may renegotiate; the court must not interfere. Because neither the plea nor the deal had been accepted, Justice Trump argues both parties remained free to modify. By refusing to recognize the 2023 agreement and insisting the 2003 tender bound everyone, the circuit court both misunderstood Rule 11 and interfered with plea bargaining, contrary to State v. Sugg and State v. Adkins.
5. Rule 32(e) is the wrong analytic lens unless the plea was accepted. Justice Trump reads Rule 32(e) (“fair and just reason” before sentence) as presupposing an accepted plea, and urges an explicit acceptance-based distinction like the federal system now contains in Federal Rule 11(d): withdrawal before acceptance should be permitted “for any reason or no reason.”

3.3. Impact

• Procedural clarity on “tendered but unaccepted” pleas. Justice Trump’s approach would create a bright-line, administrable rule: until the court accepts the plea, withdrawal is not governed by Rule 32(e)’s “fair and just” standard and should be freely allowed.
• Limits on judicial control over plea renegotiation. His opinion frames a strong separation-of-powers boundary: when a plea and agreement remain unaccepted, the court’s role is to accept, reject, or defer—not to freeze the parties’ bargaining positions or force prosecution and defense to proceed on obsolete terms.
• Potential impetus for rule reform. By contrasting West Virginia’s unchanged rules with the 2002 federal amendments, the opinion implicitly invites either judicial adoption of an acceptance-based withdrawal framework or formal amendment of the West Virginia Rules to mirror Federal Rule 11(d).
• Practical consequences in stale cases. In long-delayed prosecutions (e.g., unexecuted capias situations), the acceptance-focused approach reduces the risk that an ancient, unaccepted plea tender will be treated as irrevocable despite changed circumstances and mutual renegotiation.

4. Complex Concepts Simplified

“Binding” plea agreement (Rule 11(e)(1)(C))

“Binding” refers to the court being bound to impose the specific sentence the parties negotiated—but only if the court accepts the agreement. It does not mean the parties can never seek to withdraw or renegotiate before acceptance.

Acceptance vs. deferral

A court can (a) accept a plea, (b) accept a plea agreement, or (c) defer either decision (often to review a presentence report). Under U.S. v. Hyde, the court can accept the plea first and decide on the agreement later. Justice Trump’s key point is that this case involved deferral, not acceptance.

“Inchoate” agreement

“Inchoate” means incomplete or not fully formed in legal effect. Justice Trump uses it to describe a plea agreement (and plea) that has been tendered but not accepted, leaving the parties free to revise it.

Presentence investigation report (PSI)

A report prepared for the court to help determine an appropriate sentence. Rule 11(e)(2) allows a court to defer acceptance/rejection of a (C)-type agreement until after the PSI.

Capias

A warrant directing law enforcement to take a defendant into custody—here, one issued in 2003 but not executed until 2023.

Judicial non-interference in plea bargaining

Under State v. Sugg and State v. Adkins, courts must not participate in or interfere with plea negotiations. Justice Trump views the circuit court’s refusal to allow mutual renegotiation as precisely the sort of interference those cases forbid.

5. Conclusion

Justice Trump’s partial concurrence/dissent advances a clean acceptance-based rule: where the court has deferred acceptance and has not actually accepted the guilty plea, the plea and Rule 11(e)(1)(C) agreement remain inchoate; the parties may renegotiate; and Rule 32(e)’s “fair and just reason” framework should not control. By anchoring the analysis in the acceptance event (and drawing on U.S. v. Hyde, State v. Sugg, and State v. Adkins), the opinion seeks to protect the judiciary’s sentencing authority while also preventing judicial overreach into executive charging and bargaining discretion. Even as a separate writing, it frames a concrete roadmap for future West Virginia cases—and potential rule reform—governing the often-confused interval between tender and acceptance of a guilty plea.