State v. Allen

• Citation: 539 S.E.2d 87,208 W. Va. 144
• Decision Date: 17 November 1999
• Docket Number: No. 25980.,25980.
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Henry Theodore ALLEN, II, Defendant Below, Appellant.

539 S.E.2d 87

208 W. Va. 144

STATE of West Virginia, Plaintiff Below, Appellee, v. Henry Theodore ALLEN, II, Defendant Below, Appellant.

No. 25980.

Supreme Court of Appeals of West Virginia.

Submitted September 22, 1999.

Decided November 17, 1999.

Dissenting Opinion of Chief Justice Starcher January 6, 2000.

Bruce M. White, Parkersburg, West Virginia, Attorney for the Appellant.

Jodie M. Boylen, Assistant Prosecuting Attorney for Wood County, Parkersburg, West Virginia, Attorney for the Appellee. DAVIS, Justice:

The appellant herein, and defendant below, Henry Theodore Allen, II [hereinafter "Allen" or "the defendant"], appeals from the July 17, 1998, sentencing order entered by the Circuit Court of Wood County. In that order, the circuit court sentenced Allen to an aggregate term of imprisonment in the county jail of seven years, two months, and four days as a result of his multiple misdemeanor convictions. On appeal to this Court, Allen complains that (1) the trial court erroneously refused to instruct the jury on his theories of duress or coercion; (2) his consecutive sentences violate the constitutional prohibition of cruel and unusual punishment; (3) the trial court's failure to consider rehabilitation in rendering his sentences denied him his equal protection rights; (4) his multiple sentences for flight constitute double jeopardy; and (5) the trial court abused its discretion in ordering his sentences to run consecutively instead of concurrently. Having reviewed the arguments of the parties, the appellate record, and the pertinent authorities, we find no error in the trial court's rulings. Therefore, we affirm the decision of the Wood County Circuit Court.

I.

FACTUAL AND PROCEDURAL HISTORY

The evidence presented during the jury trial of this matter gives rise to the following facts. During the early evening hours of November 8, 1997, defendant Allen was driving his automobile through the streets of Parkersburg, West Virginia. Officer Fred Scott, of the Parkersburg Police Department [hereinafter "Officer Scott"], recognized Allen, believed him to be driving unlawfully on a suspended driver's license, and followed him, in part because of an outstanding warrant for Allen's arrest resulting from his nonappearance in magistrate court.¹ Upon reaching an intersection, Allen failed to stop at a stop sign, and Officer Scott, activating the lights and siren on his patrol car, attempted to stop him. Allen continued driving until he reached an alley at which point he vacated his car and hid in another automobile parked nearby.

Several law enforcement officials eventually located Allen in the parked car and requested him to exit the vehicle. While Allen was responding to the officers, they spotted a firearm in the vehicle with Allen and extricated him from the car. Allen struggled with the officers and resisted arrest.² As Officer Scott was placing him in his patrol car, Allen, who had been forcibly handcuffed, escaped on foot to a friend's home.³

The following day, November 9, 1997, the Parkersburg Police Department learned that defendant Allen was at a friend's home. When law enforcement officers reached the dwelling, however, they were unable to capture Allen, who had already vacated the premises. Despite a subsequent sighting of Allen and a brief foot pursuit, Allen eluded authorities by escaping into a wooded area.

Later that same day, Parkersburg resident Robert L. Cross [hereinafter "Mr. Cross"] discovered Allen in the garage of his home. Mr. Cross reported the defendant's whereabouts to authorities, who surrounded the premises. Allen then commandeered Mr. Cross's truck, which was parked in the garage, and fled by crashing through the closed garage door. After driving a short distance, Allen lost control of the vehicle and ran into some shrubbery. He once again fled on foot, but, with the help of a police helicopter, Parkersburg police finally captured Allen and placed him under arrest.⁴

A Wood County grand jury thereafter returned an eighteen count indictment charging Allen with illegal conduct in connection with his activities of November 8-9, 1997.⁵ During a jury trial of these charges, on May 26-28, 1998, Allen was convicted of fleeing from an officer by any means other than in a vehicle (Counts Three, Fourteen, and Fifteen); obstructing an officer (Counts Four and Thirteen); carrying a deadly weapon without a license (Count Six); driving on a suspended driver's license (Counts Seven and Sixteen); petit larceny (Count Eight)⁶; joyriding (Count Eleven)⁷; fleeing from an officer in a vehicle (Count Twelve); and destruction of property (Counts Seventeen⁸ and Eighteen⁹).¹⁰

By order entered July 17, 1998, the circuit court imposed sentences and fines for Allen's convictions: twelve months in the county jail and a $100 fine for each of the three fleeing without a vehicle convictions (Counts Three, Fourteen, and Fifteen); six months in the county jail and a $500 fine for each of the two obstructing convictions (Counts Four and Thirteen); twelve months in the county jail and a $1,000 fine for the unlicensed carrying of a deadly weapon (Count Six); forty-eight hours in the county jail and a $200 fine for each of the two driving on a suspended license convictions (Counts Seven and Sixteen); two months in the county jail and $23 in restitution for the petit larceny of Officer Scott's handcuffs (Count Eight); six months in the county jail for joyriding (Count Eleven); twelve months in the county jail and a $500 fine for fleeing in a vehicle (Count Twelve); and three months in the county jail and a $500 fine for each of the two destruction of property convictions (Counts Seventeen and Eighteen), plus restitution for the property destruction in the amount of $5,690.22. In its discretion, the circuit court determined that Allen's sentences should run consecutively, resulting in an aggregate term of imprisonment in the county jail of seven years, two months, and four days. From these convictions and sentences, Allen appeals to this Court.

II.

STANDARD OF REVIEW

Prior to addressing the merits of Allen's contentions, it is necessary to ascertain the appropriate standard of review. Generally,

[i]n reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

Syl. pt. 2, Walker v. West Virginia Ethics Comm'n, 201 W.Va. 108, 492 S.E.2d 167 (1997). Given the numerous distinctive errors assigned by Allen, we will consider more specific standards of review in conjunction with the issues to which they pertain.

III.

DISCUSSION

On appeal to this Court, Allen assigns five errors: (1) the trial court incorrectly refused his proffered jury instruction on duress and coercion; (2) his consecutive misdemeanor sentences constitute unconstitutional cruel and unusual punishment; (3) the trial court denied him his right to equal protection of the law by failing to consider rehabilitation in imposing his sentences; (4) his multiple convictions for flight violate his constitutional right to be free from double jeopardy; and (5) the trial court abused its discretion in imposing consecutive, rather than concurrent, sentences. We, in turn, will consider each assignment.

A. Refusal of Defendant's Duress or Coercion Instruction

Allen first assigns as error the trial court's refusal to give Defendant's Instruction Number 1 regarding duress or coercion.¹¹ When reviewing challenges to jury instructions, we generally look first to the record of the trial court proceedings to ensure that the claimed instructional error has been properly preserved for appellate review. This preservation of perceived error is crucial because "[a]n appellate court looks primarily to the persuasiveness of the trial court's reasons for [rulings on alleged errors] and gives due regard not only to the factors that inform our opinion but also to its superior point of vantage." In re Tiffany Marie S., 196 W.Va. 223, 236, 470 S.E.2d 177, 190 (1996). Thus,

"[w]hen a litigant deems himself or herself aggrieved by what he or she considers to be an important occurrence in the course of a trial or an erroneous ruling by a trial court, he or she ordinarily must object then and there or forfeit any right to complain at a later time. The pedigree for this rule is of ancient vintage, and it is premised on the notion that calling an error to the trial court's attention affords an opportunity to correct the problem before irreparable harm occurs."

State v. Salmons, 203 W.Va. 561, 569, 509 S.E.2d 842, 850 (1998) (quoting State v. LaRock, 196 W.Va. 294, 316, 470 S.E.2d 613, 635 (1996)). For this reason, "[a]s a general rule,... errors assigned for the first time in an appellate court will not be regarded in any matter of which the trial court had jurisdiction or which might have been remedied in the trial court if objected to there." Syl. pt. 17, in part, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974). In other words, "[t]his Court will not consider an error which is not properly preserved in the record nor apparent on the face of the record." Syl. pt. 4, State v. Browning, 199 W.Va. 417, 485 S.E.2d 1 (1997).

Upon a review of the record of the proceedings underlying the instant appeal, we can locate nothing to indicate that Allen objected to the trial court's denial of his proffered instruction. In the absence of a proper objection to the trial court's ruling, we find this assignment of error to have been waived and accordingly decline further consideration of the matter.¹²

B. Cruel and Unusual Punishment

Next, defendant Allen complains that the consecutive sentences he received for his multiple convictions violate his right to freedom from cruel and...