State v. Donald B.

• Decision Date: 15 June 2015
• Docket Number: No. 13-1205,13-1205
• Court: West Virginia Supreme Court
• Parties: State of West Virginia, Plaintiff Below, Respondent v. Donald B., Defendant Below, Petitioner

State of West Virginia, Plaintiff Below, Respondent v. Donald B., Defendant Below, Petitioner

No. 13-1205

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

June 15, 2015

(Ohio County 99-F-61)

MEMORANDUM DECISION

Petitioner Donald B., by counsel Justin M. Hershberger, appeals the Circuit Court of Ohio County's October 22, 2013, order sentencing him to two consecutive terms of ten to twenty years in prison following a jury conviction on two counts of sexual assault in the second degree.¹ The State of West Virginia, by counsel Scott R. Smith and Joshua J. Norman, filed a response in support of the circuit court's sentencing order. On appeal, petitioner argues that the circuit court erred in (1) applying Rule 35(a) of the West Virginia Rules of Criminal Procedure to this matter and (2) denying various rights, such as his rights to allocution and personal presence at sentencing, by failing to provide a plenary sentencing hearing.

This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

In December of 1999, a jury convicted petitioner of two counts of sexual assault in the second degree in violation of the 1991 version of West Virginia Code § 61-8B-4. Although the underlying indictment alleged that petitioner committed these sexual assaults between the years of 1988 and 1994, the evidence presented at trial was limited to petitioner's sexual assaults occurring in 1989 and 1990. Notwithstanding the evidence presented at trial, but without objection, the circuit court sentenced petitioner pursuant to the 1991 version of West Virginia Code § 61-8B-4, which imposed a penalty of ten to twenty-five years in prison. However, the version of West Virginia Code § 61-8B-4 in place during the years of 1989 and 1990 provided for a penalty of ten to twenty years in prison.

In March of 2007, petitioner filed his second federal petition for a writ of habeas corpus alleging, inter alia, that his sentence violated the ex post facto clause of the United States Constitution as it was imposed under the 1991 version of West Virginia Code § 61-8B-4, which provided for a greater penalty than the version in place at the time of the criminal acts for which he was convicted. On May 29, 2008, the United States District Court for the Northern District of West Virginia denied petitioner's second habeas petition. However, in June of 2009, the United States Court of Appeals for the Fourth Circuit, by unpublished per curium opinion, vacated the federal district court's May 29, 2008, order denying habeas relief and remanded the matter to the federal district court for further proceedings. On remand, in September of 2010, the federal district court vacated petitioner's sentences and remanded the matter to the Circuit Court of Ohio County "for re-sentencing." On remand to the circuit court, petitioner sought a plenary sentencing hearing, at which he intended to argue for alternative sentencing; he also filed letters with the circuit court in support of an alternative sentence. The State, however, filed a sentencing recommendation in which it argued that the circuit court could only correct the illegal sentence previously imposed, pursuant to Rule 35 of the West Virginia Rules of Criminal Procedure. The State maintained that petitioner could not argue for an alternative sentence because the circuit court could only enter a new sentencing order correcting the illegal maximum prison term.

In October of 2013, the circuit court held a hearing to determine whether petitioner should receive a plenary sentencing hearing or whether the circuit court should proceed to enter an order correcting the previous prison term limits, pursuant to Rule 35. Initially, the circuit court, out of an abundance of caution, set the matter for a plenary sentencing hearing in November of 2013. However, on October 22, 2013, prior to said hearing, the circuit court entered an order sentencing petitioner to two consecutive counts of two to twenty years in prison, pursuant to the version of West Virginia Code § 61-8B-4 in place at the time of the sexual assaults for which petitioner was convicted. This appeal followed.

This Court has held that "'[t]he Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands.' Syllabus Point 1, in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997)." Syl. Pt. 1, in part, State v. James, 227 W.Va. 407, 710 S.E.2d 98 (2011). With this standards in mind, we now turn to petitioner's two assignments of error.

On appeal, petitioner first assigns error to the circuit court's application of Rule 35(a) of the West Virginia Rules of Criminal Procedure in this matter. Rule 35(a) provides, in relevant part, that "[t]he court may correct an illegal sentence at any time[.]" While petitioner argues thathis original sentence could not be corrected under Rule 35(a) because the federal district court vacated the original sentencing order, he does not contest the fact that he stands convicted of two counts of sexual assault in the second degree or that his prior sentence on those counts was illegal. We discussed a similar issue in State ex rel. McMannis v. Mohn, 163 W.Va. 129, 254 S.E.2d 805 (1979), where we explained that setting aside a recidivist conviction and its attendant life sentence

does not affect the validity of the underlying felony conviction

...