State v. McDonald
| Decision Date | 14 April 2023 |
| Docket Number | 21-0796 |
| Parties | STATE OF WEST VIRGINIA, Plaintiff Below, Respondent, v. CHRISTOPHER MCDONALD, Defendant Below, Petitioner. |
| Court | West Virginia Supreme Court |
Submitted: February 7, 2023
Appeal from the Circuit Court of Nicholas County The Honorable Stephen O. Callaghan, Judge Criminal Action No. 20-F-56
Jason T. Gain, Esq. Losh Mountain Legal Services Anmore, West Virginia Attorney for the Petitioner
Patrick Morrisey, Esq. Attorney General Andrea Nease Proper Esq. Assistant Attorney General Charleston, West Virginia Attorneys for the Respondent
1. Syllabus point 1, State v. Myers, 204 W.Va. 449, 513 S.E.2d 676 (1998).
2. "To trigger application of the 'plain error' doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings." Syllabus point 7, State v Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).
3. "The West Virginia Rules of Criminal Procedure are the paramount authority controlling criminal proceedings before the circuit courts of this jurisdiction[.]" Syllabus point 5, in part, State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999).
4. West Virginia Rule of Criminal Procedure 32(b)(1) requires that the sentencing court receive and consider a presentence report before sentencing unless all conditions in (A), (B), and (C) are met. To the extent that Syllabus point 3 of State v. Bruffey, 207 W.Va. 267, 531 S.E.2d 332 (2000), indicates otherwise, it is hereby overruled.
Petitioner Christopher McDonald appeals the Circuit Court of Nicholas County's September 24, 2021 order resentencing him to eighty years of incarceration following his conviction for first-degree robbery, in violation of West Virginia Code § 61-2-12.[1] While Mr. McDonald raises two issues on appeal-that the sentence was disproportionate to his crime and that the circuit court failed to make particularized findings to justify the sentence-we need not reach the merits of his claims. Instead, we find that the sentencing court plainly erred by failing to follow West Virginia Rule of Criminal Procedure 32(b)(1) when sentencing Mr. McDonald. We vacate the sentencing order and remand the case for resentencing pursuant to the directives set forth herein.
In February 2020, Mr. McDonald entered a Subway restaurant in Nicholas County, West Virginia; instructed the cashier to give him the money in the register; and showed the cashier a gun.[2] The cashier gave Mr. McDonald $183.00. Mr. McDonald left the Subway, got into a vehicle with two other people, and they drove away. Law enforcement ultimately arrested the three people, including Mr. McDonald, in Arkansas.
In June 2020, a Nicholas County grand jury indicted Mr. McDonald and his two codefendants with one count of conspiracy to commit robbery and one count of first-degree robbery. Mr. McDonald agreed to plead guilty to first-degree robbery in exchange for dismissal of the conspiracy charge. At the plea hearing, Mr. McDonald waived the presentence report. Still, the circuit court ordered that a presentence report be completed two weeks before the sentencing hearing.
The probation department filed a one-page document recommending an eighty-year sentence.[3] Mr. McDonald filed objections to the document along with a sentencing memorandum. The memorandum acknowledged that Mr. McDonald waived a presentence investigation and observed that the document "failed to provide any supporting data, evidence of convictions, counties/charges/case numbers or any other meaningful information . . . upon which . . . ourt could base its sentence." Mr. McDonald also argued that, "[t]o date, the State has offered no meaningful evidence to support a sentence of [e]ighty (80) [y]ears."
At the sentencing hearing on December 7, 2020, the circuit court noted that while at the plea hearing Mr. McDonald sought to proceed directly to sentencing, the court "wanted to delay sentencing so [it] could look at sentencing options and look at some of the underlying circumstances here." The court acknowledged that it had no presentence report, and no parties asserted that the one-page document prepared by the probation office met the requirements of a presentence report. Mr. McDonald objected to the one-page document and asked that the sentencing court not consider it. His attorney remarked on some of Mr. McDonald's personal history, including that he had only a single conviction about eight or nine years prior for a second-degree assault in New York, and requested a ten-year sentence. He also explained that Mr. McDonald had pending Pennsylvania charges related to an incident occurring shortly before the one in Nicholas County.
When the court inquired whether Mr. McDonald wanted to go forward with sentencing, Mr. McDonald stated that he wanted to be sentenced. The circuit court asked Mr. McDonald if he still wished to waive the presentence investigation, which he confirmed. The circuit court then offered to delay the hearing, explaining that it would have "the probation department conduct a [presentence] investigation, and we'll come back here for sentencing." The court asked Mr. McDonald, "Do you wish to do that?" Again, Mr. McDonald replied, "I'd like to proceed with the sentencing, your Honor."
In his allocution to the court, Mr. McDonald said that he had a very troubled life, and after his mother died, he started using drugs, including methamphetamine and heroin. He apologized for "wasting everybody's time and money." The State then argued that Mr. McDonald participated in a "whirlwind of crime that started in New York, traveled across a couple of states and ended up here, and it didn't stop here." Continuing, the State noted that the coconspirators "went down to Arkansas and committed more crimes on the way." While explaining that the one-page document "came from the probation department" and the chief probation officer, the State was not certain why the probation department did not complete the presentence investigation and conjectured that possibly the defendant did not cooperate. The State concluded by requesting that the court follow the recommendation of the probation officer and impose an eighty-year sentence.
The circuit court remarked that it offered to reschedule the hearing and have the probation department complete a presentence report, but that Mr. McDonald waived it. The court made no findings regarding why the presentence report was not completed. The court stated that it would "proceed with sentencing," then reasoned:
And it's a first degree robbery. We go from meth- - methamphetamine, heroin, first degree robbery with the use and presentment of a firearm-[w]hether that was a BB gun or not, doesn't matter to me, and it certainly didn't matter to that store clerk who was standing there scared for her life or his life. It's a very serious charge, and this kind of violent threatening crime that takes place in Nicholas County deserves a stiff sentence, and that's what's going to happen.
While sentencing Mr. McDonald to an eighty-year determinate sentence of imprisonment, the court denied a motion for probation and alternative sentencing[4] because "the crime involved the use and presentment of a firearm" and the "dangerous" and "deliberative" nature of the crime. The court clarified that the sentencing was not based on the victim being afraid, after Mr. McDonald's attorney noted no victim testified, and the court did not receive a victim impact statement. The circuit court made no other findings regarding Mr. McDonald's sentence and concluded the hearing.
On March 26, 2021, Mr. McDonald, with new counsel, filed a motion to reconsider his sentence for a number of reasons, including that no presentence report was completed; that his sentence was longer than it would be if he had been convicted of second-degree murder or first-degree sexual assault; and that his sentence was disproportionate to those received by his codefendants. Mr. McDonald argued that his codefendants each received indeterminate sentences of one-to-five years and further explained that "counsel is aware that it is this Honorable Court's practice to sentence a defendant to the maximum if they do not participate in a [presentence investigation]." The court denied the motion. On September 23, 2021, the circuit court resentenced Mr. McDonald to enable him to file this appeal, with no objection by the State.
"The Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands." Syl. pt. 1, in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).
Mr McDonald asks this Court to find that the sentencing court gave him a disproportionate sentence, in violation of Article III, Section 5 of the West Virginia Constitution, for his first-degree robbery conviction. "Article III, Section 5 of the West Virginia Constitution, which contains the cruel and unusual punishment counterpart to the Eighth Amendment of the United States Constitution, has an express statement of the proportionality principle: 'Penalties shall be proportioned to the character and degree of the offence.'" Syl. pt. 8, State v. Vance, 164 W.Va. 216, 262 S.E.2d 423 (1980). Typically, we limit proportionality reviews to sentences "where there is either no fixed maximum set...
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