State v. Bleck

• Decision Date: 01 June 2020
• Docket Number: No. 18-0481,18-0481
• Citation: 843 S.E.2d 775
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Respondent v. Kristafer Avery BLECK, Defendant Below, Petitioner

843 S.E.2d 775

STATE of West Virginia, Plaintiff Below, Respondent

v.Kristafer Avery BLECK, Defendant Below, Petitioner

No. 18-0481

Supreme Court of Appeals of West Virginia.

Submitted: February 19, 2020

Filed: June 1, 2020

James T. Kratovil, Kratovil Law Offices PLLC, Charles Town, West Virginia, Attorney for the Petitioner.

Patrick Morrisey, Attorney General, Lara K. Bissett, Assistant Attorney General, Charleston, West Virginia, Attorneys for the Respondent.

Jenkins, Justice:

Petitioner Kristafer Avery Bleck ("Mr. Bleck") appeals from an order¹ of the Circuit Court of Jefferson County that sentenced him to one term of not less than one year nor more than five years, one term of not less than two years nor more than ten years, and one term of not less than one year nor more than fifteen years.² In particular, Mr. Bleck asserts that the circuit court erred in considering an alleged previously expunged charge³ during his sentencing hearing and in denying him probation. The State responds that Mr. Bleck failed to timely object in the proceeding below and that, even if he had timely objected, a circuit court's consideration of an expunged charge is not an impermissible factor. After a careful review of the briefs submitted by the parties, the record submitted on appeal, the oral arguments presented to this Court, and the applicable case law, we find that Mr. Bleck waived his objection, and we affirm the circuit court's April 27, 2018 sentencing order. This Court need not and does not address whether the circuit court considered an impermissible factor during sentencing.

I.FACTUAL AND PROCEDURAL HISTORY

In April of 2017, the grand jury of Jefferson County indicted Mr. Bleck on one count of first degree robbery, one count of felony conspiracy, one count of assault in the commission of a felony, and one count of burglary.⁴ Subsequently, on January 26, 2018, the State extended a plea agreement to Mr. Bleck wherein he would plead "no contest" to count two of the indictment charging felony conspiracy; count three of the indictment charging assault in the commission of a felony; and count four of the indictment charging burglary. In exchange for the no contest plea, the State agreed to dismiss count one of the indictment charging robbery in the first degree. The State also agreed that it would recommend that Mr. Bleck

be sentenced to the penitentiary for not less than one year nor more than five years for his conviction of Felony Conspiracy, not less than two years nor more than ten years for his conviction of Assault in the Commission of a Felony, and not less than one year nor more than fifteen years for his conviction of Burglary.

Furthermore, the State agreed to recommend that Mr. Bleck's sentences run concurrently rather than consecutively. In other words, the State agreed to recommend "an overall sentence of not less than two years nor more than fifteen years in the penitentiary." The plea agreement, signed by Mr. Bleck, further agreed to "waive[ ] his right to appeal his conviction and any lawful sentence imposed in a lawful manner to the West Virginia Supreme Court of Appeals." The plea agreement indicated that Mr. Bleck may not request deferred adjudication but that he may request any sentence authorized by law, including concurrent sentences, alternative sentences, or a combination thereof. Moreover, it provided that Mr. Bleck understood that the circuit court retained sentencing discretion.

Mr. Bleck pled no contest to one count of felony conspiracy, one count of assault in the commission of a felony, and one count of burglary on January 31, 2018. Subsequently, in February of 2018, the circuit court entered a conviction order acknowledging that it had reviewed the terms of the plea agreement with Mr. Bleck and that he understood the plea agreement's terms. The conviction order further provided that, during the plea hearing, Mr. Bleck "acknowledged that the [court] does not have to follow the State's sentencing recommendation and [Mr. Bleck] could not withdraw his plea for that reason." The circuit court found that Mr. Bleck "underst[ood] the terms of the plea agreement, the nature and consequences of the pleas, that there is a factual basis and foundation for the tendered pleas, and that [Mr. Bleck] tendered the pleas intelligently, knowingly, and voluntarily."

On March 23, 2018, the pre-sentence⁵ investigation ("PSI") report was prepared and was subsequently filed with the circuit court on March 28, 2018. The PSI report contained information showing that, on September 28, 2010, Mr. Bleck was arrested for domestic assault and obstruction of an officer. The PSI report further noted that, on April 4, 2011, Mr. Bleck pled no contest to the obstruction of an officer charge and was assessed a fine; the domestic assault charge was dismissed.

Prior to the sentencing hearing, Mr. Bleck filed a motion for probation on April 3, 2018, arguing, among other things, that he had no prior felony convictions, he was gainfully employed, he had a low risk of reoffending, he was not a danger to the community, his continued supervision by probation was the most effective course of rehabilitation, and his three misdemeanor convictions were many years ago.

On April 9, 2018, the circuit court held a sentencing hearing. During the sentencing hearing, Mr. Bleck's counsel acknowledged receipt of the PSI report.⁶ The circuit court inquired if there were any material inaccuracies to the PSI report. Mr. Bleck's counsel affirmatively stated that there were objections to the PSI report. In particular, Mr. Bleck's counsel moved to amend "Section II., A." of Mr. Bleck's PSI report, which referred to law enforcement's narrative of the version of events as found in the official complaint. Mr. Bleck took issue with the statement that he had traded a shotgun for crack cocaine. The State responded that that particular statement came from the police report and that it could not be amended. The circuit court essentially did not amend that section of the PSI report but noted that Mr. Bleck corrected that statement. After resolving Mr. Bleck's objection, the circuit court again asked the parties if there were "[a]ny other material inaccuracies with the PSI[.]" Mr. Bleck's counsel stated "[n]o, [y]our [h]onor."⁷ Mr. Bleck did not object to any other information contained in the PSI report, including the reference to the 2010 domestic assault charge, and he himself informed the circuit court that he did not have any reason why his sentence should not be pronounced at that time.

The circuit court then allowed testimony and presentation of evidence by both parties. Mr. Bleck's mother and wife testified on his behalf. The victim also testified. Once again, Mr. Bleck requested alternative sentencing in the form of probation. In response, the circuit court stated the following:

I do believe that I have considered all of the factors which are relevant to the imposition of sentence. I have taken into consideration the PSI and also the testimony today; the statements made by Mr. Bleck's mother and wife and the testimony given by the victim in this case; and I find based upon the fact that this was a crime of violence with a laceration to the throat, if this was the first violent act of the Defendant I might consider probation , but we had a 2010 domestic assault that was also part of our record in the PSI[.] I do find that the State has granted a plea agreement that gives Mr. Bleck the benefit of him accepting responsibility but he still needs to serve some time for his conduct in this event.

(Emphasis added). The circuit court then sentenced Mr. Bleck to serve the following three concurrent terms of incarceration: not less than one year nor more than five years for his conviction of felony conspiracy, not less than two years nor more than ten years for his conviction of assault in the commission of a felony, and not less than one year nor more than fifteen years for his conviction of burglary. The circuit court further ordered him to pay $1,236.54 in restitution. An order committing Mr. Bleck to the custody of the Department of Corrections was entered that same day.

Before the filing of the written sentencing order memorializing the circuit court's ruling from the April 9 hearing, on April 16, 2018, Mr. Bleck filed "Defendant's Motion for and Memorandum in Support of the Reconsideration of Sentence" pursuant to Rule 35 of the West Virginia Rules of Criminal Procedure, and once again requested probation. Mr. Bleck made several arguments in his motion, including his contention that the circuit court improperly considered his domestic assault charge from 2010 because it allegedly had been previously expunged. In particular, Mr. Bleck asserted that if "[t]he [circuit c]ourt [had] found that had this been [his] first violent offense, he would have been granted probation. However, because [his] criminal record showed a prior domestic violence arrest in 2010, the [circuit c]ourt [had] sentenced him to the penitentiary."⁸ Mr. Bleck further argued that "[b]y holding [his] 2010 arrest for domestic assault against him and thereby sentencing him to confinement because of this allegedly violent history, the [circuit c]ourt relied on an impermissible factor in violation of W. Va. Code [section] 61-11-25."⁹ In support of his argument, Mr. Bleck attached a single letter from the Berkeley County Magistrate Clerk stating that there is no record of a domestic assault charge pursuant to West Virginia Code section 61-11-25. We note that Mr. Bleck did not produce below any order of expungement or any information, such as when and where the expungement was obtained.

On April 27, 2018, the circuit court entered a sentencing order reflecting its decision at the April 9 sentencing hearing. The sentencing order specifically stated that in sentencing Mr. Bleck, the circuit court considered the PSI report; the evidence presented; and statements and sentencing recommendations of the parties. Ultimat...