State v. Riffle, 20-0765

CourtSupreme Court of West Virginia
Decision Date07 June 2022
Docket Number20-0765



No. 20-0765

Supreme Court of Appeals of West Virginia

June 7, 2022

Submitted: April 5, 2022

Appeal from the Circuit Court of Braxton County The Honorable Richard Facemire, Judge Civil Action No. 19-F-5

M. Tyler Mason, Esq. Hughart Law Office Sissonville, West Virginia Counsel for the Petitioner

Patrick Morrisey, Esq. Attorney General Lindsay See, Esq. Solicitor General Katherine M. Smith, Esq. Assistant Attorney General Charleston, West Virginia Counsel for the Respondent

JUSTICE BUNN did not participate in the decision in this case.



1. "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).

2. A circuit court does not violate a defendant's due process right to appeal when it corrects a sentence that is void ab initio by imposing a more severe punishment that comports with the penalty provided for in the applicable statute.

3. "Sentences imposed by the trial court, if within statutory limits and if not based on some [im]permissible factor, are not subject to appellate review." Syl. Pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).




Following entry of Petitioner David Gilbert Riffle's guilty plea to one count of solicitation of a minor in violation of West Virginia Code § 61-3C-14b(b) (2016), [1] the circuit court misread the statute and erroneously sentenced petitioner to an indeterminate term of incarceration rather than a determinate term as provided for in the statute. Petitioner later appealed and, although his conviction was upheld, this Court reversed the sentencing order and remanded the matter for the limited purpose of correcting the illegal sentence. See State v. Riffle, No. 19-0843, 2020 WL 4355303 ( W.Va., July 30, 2020) (memorandum decision). On remand, the circuit court imposed a sentence within the parameters of the statute but that petitioner contends amounts to a more severe sentence than the one originally imposed, in violation of his constitutional right to due process. Upon careful consideration of the parties' briefs and oral arguments, appendix record, and pertinent legal


authority, and for the reasons stated below, we find that petitioner's due process rights were not violated by the imposition of the corrected sentence and affirm the circuit court's order.

I. Factual and Procedural Background

On February 5, 2019, petitioner was indicted by a Braxton County grand jury on twenty felony charges relating to the solicitation and use of obscene matter involving a minor.[2] Specifically,

Petitioner, a forty-three year old adult male, using the screen name "davidg324", engaged in conversations on the Kik application (an application used for instant messaging) with an individual whom he believed to be a thirteen year-old girl from Minnesota from November 8, 2017 to December 8, 2017. The individual with whom petitioner messaged was actually a Homeland Security Agent, an adult over the age of majority.

Riffle, at *1. According to the criminal complaint, petitioner sent the individual whom he believed to be a thirteen-year-old girl approximately sixty photos "mostly of himself in various stages of dress ranging from his fire department uniform to shorts to partially nudes and nudity." Approximately twenty-six of the photographs were of petitioner's penis. Petitioner also requested pictures of the individual whom he believed to be thirteen years old, informing her that he "wouldn't tell or show anyone." Petitioner "planned to travel to


see the '13 year old female' on or about the second week of January, but because of scheduling issues could not make the trip." The criminal complaint further stated that petitioner "admitted to sending the pictures of his penis and having sexually based conversations with what [sic] he believed to be a 13 year old female."

Petitioner pled guilty on March 21, 2019, to one count of solicitation of a minor via computer to travel and engage the minor in prohibited sexual activity ("soliciting a minor"), in violation of West Virginia Code § 61-3C-14b(b), [3] and three counts of use of obscene matter with intent to seduce a minor, in violation of West Virginia Code § 61-8A-4 (2016).[4]


At the plea hearing, the circuit court ordered a pre-sentence investigation and set the matter for sentencing on May 7, 2019. However, petitioner failed to appear for sentencing, and the circuit court issued a capias and bench warrant for his arrest. It was later determined that petitioner had fled to South Carolina. He was apprehended and appeared before the circuit court on August 8, 2019, for sentencing.

At the August 8, 2019, sentencing hearing, the circuit court remarked that petitioner

ha[s] failed to accept responsibility for the offenses for which you committed [sic].[5] I don't see any remorse. A matter of fact, during the interview for the pre-sentence investigation report, you didn't appear to remember anything. And you said that was because you were under the influence of drugs, in the matter. I
seriously question that. In fact, the record shows that you were communicating electronically with somebody that you thought was a 13-year-old girl. Unfortunately for you, that was a federal agent. If you are under the influence you should have not been able to operate a computer, and should be able to have [sic] communicate [sic] effectively with an undercover officer, who was pretending to be a 13-year-old girl, and responding and enticing what you thought was a 13-year-old girl to meet you, and engage in sexual activity. You have a lengthy criminal history.[6] You've been offered opportunities previously, in the matter, but you failed to learn by your prior mistakes. Based upon what I believe is a serious drug addiction problem, based upon your lengthy criminal history, the antisocial attitude that you have, in the matter, based upon what I believe is a sporadic employment history, I believe there is a substantial likelihood that you will commit another crime if granted probation or conditional discharge. I believe you are in need of correctional treatment to be more effectively served in a correctional institution.

(Footnote added).

Although West Virginia Code § 61-3C-14b(b) provides for a determinate prison sentence of not less than five nor more than thirty years, the circuit court inadvertently imposed an indeterminate sentence of "not less than five (5) nor more than thirty (30) years in the penitentiary[.]"[7] For the offenses of use of obscene matter with the


intent to seduce a minor, the circuit court ordered that petitioner be sentenced to a prison term of five years for each of the three counts. See W.Va. Code § 61-8A-4. The court ordered that the sentences "run consecutively for a total of not less than twenty (20) years nor more than thirty (30) years."

Petitioner subsequently appealed his convictions and sentences on several grounds including, relevant to this appeal, that he was ordered to serve an illegal sentence on the offense of soliciting a minor. Petitioner argued that the circuit court improperly sentenced him to an indeterminate sentence of five to thirty years of incarceration instead of a determinate sentence, as provided in West Virginia Code § 61-3C-14b(b). See Riffle, at *2-3. This Court agreed with petitioner that the sentence imposed was illegal, reversed the sentencing order, and remanded the matter to the circuit court for the exclusive purpose of "correct[ing] the sentencing order to a determinate sentence to comport with West Virginia Code § 61-3C-14b(b)." Id. at *3. Otherwise, petitioner's convictions were affirmed.[8]


A re-sentencing hearing was conducted on August 24, 2020. Petitioner's counsel argued that there was "actually not a victim [of petitioner's crimes]. It was a Homeland Security officer in the State of Minnesota[, ]" and "it's very unrealistic that [petitioner] ever would've traveled to Minnesota to meet with this young lady" because he did not have the financial resources to purchase a bus or plane ticket or a working vehicle that would have been able to transport him there. Petitioner personally addressed the court, stating that he took full responsibility for his actions; declaring that it was "only a one-time thing[;]"[9] and that "the real victims of this crime is [sic] my family and my - my kids and the people that I used to help as I - as I worked as a fire fighter and EMT." Petitioner sought the minimum sentence for the soliciting a minor charge and requested concurrent sentencing.

Prior to imposing the corrected sentence, the circuit court readily acknowledged its error in originally ordering petitioner to serve an indeterminate five-to-thirty-year term of incarceration. As it did during the initial sentencing hearing, the court then noted petitioner's failure to accept responsibility for his conduct; lengthy criminal history; the deliberate nature of the offenses; petitioner's anti-social attitude; and serious problem with drug addiction. According to the circuit court, petitioner "knew exactly what


he was doing. . . . he was soliciting sexual relationships with a minor girl. And the fact that it happened to be an undercover officer doesn't mitigate or justify the acts for which [sic] the [petitioner] did." The circuit court further noted that while the presentence investigation report reflected that petitioner told the probation officer that he "didn't remember anything about [his criminal conduct], that he was under the influence of drugs and he didn't remember anything that happened[, ] . . . . today, he seems to have some memory of what...

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