State v. Bruffey

• Decision Date: 05 May 2000
• Docket Number: No. 26573.,26573.
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Kenneth A. BRUFFEY, Defendant Below, Appellant.

531 S.E.2d 332

207 W.Va. 267

STATE of West Virginia, Plaintiff Below, Appellee, v. Kenneth A. BRUFFEY, Defendant Below, Appellant.

No. 26573.

Supreme Court of Appeals of West Virginia.

Submitted January 25, 2000.

Decided May 5, 2000.

Ira M. Haught, Esq., Harrisville, West Virginia, Attorney for Appellant.

Darrell V. McGraw, Jr., Attorney General, Denise L. Avampato, Assistant Attorney General, Charleston, West Virginia, Attorneys for Appellee.

SCOTT, Justice:

The Appellant, Kenneth A. Bruffey, appeals from an order of the Circuit Court of Doddridge County, entered on January 25, 1999, sentencing him for the crimes of third offense driving under the influence of alcohol (hereinafter "DUI"), a felony, and driving on revoked license for DUI and no proof of insurance, both misdemeanors. The assignments of error are: (1) the circuit court erred by refusing to order a presentence investigation and report prior to sentencing; (2) the circuit court erred by denying the Appellant his right of allocution prior to sentencing; (3) the circuit court erred by denying the Appellant's pretrial motion to dismiss the misdemeanor counts, which had been previously cited in magistrate court. After careful review of the entire record, the parties' briefs, and the relevant law, we conclude that the first and second assignments of error merit reversal, while the third does not. Accordingly, we reverse and remand the matter to the circuit court with directions to resentence the Appellant after first procuring a presentence report, if needed as a sentencing aid, and affording the Appellant his right of allocution.

I. FACTUAL AND PROCEDURAL BACKGROUND

In the afternoon on May 30, 1998, Mr. Bruffey was involved in a single-car accident on County Route 25 in Doddridge County, West Virginia. He was the driver of the vehicle and had one passenger. Twenty to twenty-five minutes after the accident, the county sheriff arrived at the scene and found Mr. Bruffey sitting on the ground next to the wrecked vehicle. The sheriff asked Mr. Bruffey for his driver's license, registration, and insurance, but he did not produce any of those items. Noticing that Mr. Bruffey's eyes were bloodshot and that his breath smelled of alcohol, the sheriff asked him whether he had been drinking. Mr. Bruffey admitted that he had. After further investigating the accident, the sheriff asked Mr. Bruffey to participate in a field sobriety test. He refused, and the sheriff arrested him for DUI. At that time, the sheriff also served Mr. Bruffey with a citation charging the misdemeanor offenses of no proof of insurance and driving on a suspended license. Thereafter, Mr. Bruffey was transported to the state police barracks in Avendale, West Virginia, where he underwent an Intoxilyzer test which revealed a blood alcohol concentration of .185 percent.¹ The validity and timeliness of this test are not in question. No further proceedings occurred before the magistrate.

In an indictment filed on October 26, 1998, in the Circuit Court of Doddridge County, Mr. Bruffey was charged with one count of third offense DUI, a felony, in violation of West Virginia Code § 17C-5-2(k) (1996); one count of driving on revoked license for DUI, a misdemeanor, in violation of West Virginia Code § 17B-4-3 (1996); and no proof of insurance, a misdemeanor, in violation of West Virginia Code § 17D-2A-3 (1996). On October 27, 1998, the State filed a motion in magistrate court to dismiss the misdemeanor charges contained in the citation served by the sheriff, and on October 28, 1998, the charges were dismissed. In circuit court, the Appellant pled not guilty to the charges in the indictment, and the matter was set for trial. On November 2, 1998, the circuit court entered an order designating December 30, 1998, as "the last day to hear pre-trial motions."

On January 4, 1999, the first day of trial, defense counsel moved to dismiss the misdemeanor counts. Defense counsel argued that under West Virginia Code § 50-5-7 (1994), Mr. Bruffey was entitled to a trial on the misdemeanor charges in magistrate court because those offenses were initially charged there, and he had never waived his right to a magistrate court trial. Denying the motion to dismiss as untimely made, the circuit court reasoned:

[W]hile Chapter 50 Article 5 Section 7 gives the right of the criminal defendant to be tried on a misdemeanor offense over which the magistrate court and circuit court have concurrent jurisdiction ... [,] there is also a procedural requirement under Rule 8 Subsection 2 of the West Virginia Rules of Criminal Procedure that puts an affirmative duty upon the state to join all charges both misdemeanor and felony into trial of the one action.

Defense counsel then moved for a continuance to allow Mr. Bruffey to file a petition for a writ of prohibition to prevent the circuit court from exercising jurisdiction. The circuit court denied the continuance.

On January 4 and 5, 1999, Mr. Bruffey was tried by a jury in the circuit court. The jury found him guilty of all three counts in the indictment.²

On January 5, 1999, after the jury was excused, defense counsel moved for a presentence investigation and report, pursuant to Rule 32(b) of the West Virginia Rules of Criminal Procedure. The circuit court refused to require a presentence investigation and report and proceeded immediately to sentence Mr. Bruffey, without advising him of his right of allocution. The sentences imposed were one to three years in the state penitentiary for the conviction of third offense DUI, six months in the Doddridge County Jail for the conviction of driving on revoked license for DUI, and fifteen days in the Doddridge County Jail for the conviction of no proof of insurance. The latter two sentences were to run concurrently to each other and to the prison term.

II. STANDARD OF REVIEW

"Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). Moreover, "[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). Since the assignments of error herein raise purely legal issues, our review is de novo.

III. DISCUSSION

A. Presentence Investigation and Report

The Appellant's motion for a presentence investigation and report was based upon Rule 32(b) of the West Virginia Rules of Criminal Procedure, which provides in part:

(b) Presentence Investigation and Report.—

(1) When Made.—The probation officer shall make a presentence investigation and submit a report to the court before the sentence is imposed, unless:

(A) the defendant waives a presentence investigation and report;

(B) the court finds that the information in the record enables it to meaningfully exercise its sentencing authority; and

(C) the court explains on the record its finding that the information in the record enables it to meaningfully exercise its sentencing authority.

W. Va. R.Crim. P. Rule 32(b)(1) (as amended, effective Jan. 1, 1996). The Appellant argued before the circuit court that the use of "and" in subsection (b)(1) requires that all three conditions—(A), (B), and (C)—must be met before a court may dispense with a presentence investigation and report.

Rejecting a conjunctive interpretation of Rule 32(b), the circuit judge stated that:

The three conditions requiring the presentence investigation report or not requiring [the report] is when the defendant waives it, which he is not doing; or when the Court finds the information in the record enables it to make a meaningful exercise of its sentencing authority; and the Court explains on its record the information in the record enabling it to meaningfully exercise its sentencing authority. (emphasis added).

Having so interpreted Rule 32(b), the circuit court denied the Appellant's motion, finding that since "a conviction for third-offense ... [DUI] requires ... a mandatory sentence of incarceration in the penitentiary .... the mandatory sentence requirement as imposed upon the Court enables it to make an effective sentence ... without the ... presentence investigation report." In the sentencing order, the circuit court again addressed the issue, stating: "The Court ... finds that a pre-sentence investigation report is not mandatory or necessary in this matter."

In considering the propriety of the circuit court's decision to forego a presentence investigation and report, we must decide the proper interpretation of Rule 32(b). The Appellant adheres to the position that all three elements delineated in the rule must be present in order to circumvent the requirement of a presentence investigation and report. Like the circuit court, we disagree and hold that Rule 32 of the West Virginia Rules of Criminal Procedure requires that a presentence investigation be made by the probation officer and a presentence report submitted to the trial court before sentence is imposed on a criminal defendant, unless the defendant waives a presentence investigation and report, or the court finds that the information in the record enables it to meaningfully exercise its sentencing authority, and the court explains on the record its finding that the information in the record enables it to meaningfully exercise its sentencing authority.

Rule 32 was amended to its present form by operation of an order of this Court, which was entered on November 15, 1995, and became effective on January 1, 1996. Prior to the amendment, the relevant language was embodied...