State v. Tex B.S.
| Decision Date | 08 October 2015 |
| Docket Number | No. 14–0891.,14–0891. |
| Citation | 236 W.Va. 261,778 S.E.2d 710 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia, Plaintiff Below, Respondent v. TEX B.S., Defendant Below, Petitioner. |
Kevin D. Mills, Shawn R. McDermott, Mills McDermott, PLLC, Martinsburg, WV, for Petitioner.
Patrick Morrisey, Attorney General, Shannon Frederick Kiser, Assistant Attorney General, Charleston, WV, for Respondent.
Petitioner, Tex B.S. (“Mr. S.”)1, appeals from an order of the Circuit Court of Morgan County that corrected his sentence for first-degree sexual assault. Mr. S. alleges that the circuit court committed error in denying his request for a de novoresentencing hearing. The Respondent, State of West Virginia, responds in support of the circuit court's order correcting Mr. S.'s sentence without a de novoresentencing hearing. After a careful review of the briefs submitted by the parties, the record submitted for appeal, the oral arguments presented to this Court, and the applicable case law, we affirm.
This case was presented to this Court in 2011, as an initial appeal by Mr. S. from his conviction and sentence for first-degree sexual assault and sexual abuse by a parent or guardian.2In that proceeding, we affirmed, in an unpublished decision, the order convicting and sentencing Mr. S.3The only issue before this Court in the current proceeding involves the sentence Mr. S. received for the first-degree sexual assault conviction.
After we affirmed Mr. S.' original conviction and sentence, he filed a habeas corpus petition in circuit court. In that petition, Mr. S. alleged that his sentence for first-degree sexual assault was illegal because it was not the sentence prescribed for the offense he was convicted of committing.4The sentence Mr. S. received for the first-degree sexual assault conviction was an indeterminate sentence of not less than twenty-five years nor more than one hundred years.5In the habeas petition, Mr. S. alleged that the statute in place when the offense occurred authorized only an indeterminate sentence of not less than fifteen years nor more than thirty-five years.
At a hearing held on July 8, 2014, the circuit court determined sua sponte that Mr. S.'s habeas petition was not the proper mechanism for challenging his sentence. The court found that the issue was properly resolved under Rule 35 of the West Virginia Rules of Criminal Procedure. Consequently, the circuit court determined that it would correct Mr. S.'s sentence pursuant to Rule 35. Mr. S. participated in the hearing on the matter via video conferencing. He was represented by counsel at the proceeding. During the hearing, the State conceded that Mr. S. was not sentenced under the statute in place when he committed the crime. Even so, Mr. S. argued that he was entitled to a de novoresentencing hearing. The trial court disagreed with Mr. S. and determined that it would correct the sentence. The trial court announced the new sentence at the hearing and entered an order on July 29, 2014; Mr. S. received an indeterminate sentence of not less than fifteen years nor more than thirty-five years for first-degree sexual assault.6This appeal followed.
The controlling issue presented in this appeal is whether the circuit court abused its discretion in denying Mr. S.'s request for a de novoresentencing hearing. Our review standard of an order correcting a sentence under Rule 35has been stated as follows:
In reviewing the findings of fact and conclusions of law of a circuit court concerning an order on a motion made under Rule 35 of the West Virginia Rules of Criminal Procedure, we apply a three-pronged standard of review. We review the decision on the Rule 35motion under an abuse of discretion standard; the underlying facts are reviewed under a clearly erroneous standard; and questions of law and interpretations of statutes and rules are subject to a de novoreview.
Syl. pt. 1, State v. Head,198 W.Va. 298, 480 S.E.2d 507 (1996).
Mr. S. contends that the trial court committed reversible error in denying his request for a de novoresentencing hearing. Specifically, Mr. S. alleged that he “was not allowed to appear in person” and that, at the hearing, he “was not allowed to present evidence, put on witnesses, or give his allocution to the court.” The State contends that Mr. S. did not have a right to a de novoresentencing hearing.
A defendant is constitutionally guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome, if his or her presence would contribute to the fairness of the procedure. We held in Syllabus point 6 of State v. Boyd,160 W.Va. 234, 233 S.E.2d 710 (1977), that “[t]he defendant has a right under Article III, Section 14 of the West Virginia Constitutionto be present at all critical stages in the criminal proceeding; and when he is not, the State is required to prove beyond a reasonable doubt that what transpired in his absence was harmless.” See also Kentucky v. Stincer,482 U.S. 730, 745, 107 S.Ct. 2658, 2667, 96 L.Ed.2d 631 (1987). We also have held that “[a] critical stage of a criminal proceeding is where the defendant's right to a fair trial will be affected.” Syl. pt. 2, State v. Tiller,168 W.Va. 522, 285 S.E.2d 371 (1981). This includes the right to be present upon the imposition of sentence. SeeW. Va. R.Crim. P., 43(a)(“The defendant shall be present ... at the imposition of sentence, except as otherwise provided by this rule.”). Additionally, Rule 32(c) of the West Virginia Rules of Criminal Procedureprovides that, at the time of sentencing, the defendant has the right to allocution, that is, to present any information in mitigation of punishment, and to make a statement on his or her own behalf.SeeSyl. pt. 6, State v. Holcomb,178 W.Va. 455, 360 S.E.2d 232 (1987)(“[Rule 32(c)(3)(c)] of the West Virginia Rules of Criminal Procedure confers a right of allocution upon one who is about to be sentenced for a criminal offense.”).
A defendant's right to be present at an initial sentencing hearing has been qualified by Rule 43(c)(4) of the West Virginia Rules of Criminal Procedure. Rule 43(c)(4)provides an exception to a defendant's right to attend a sentencing hearing if it involves a correction of sentence under Rule 35. Consequently, the resolution of the issue presented by Mr. S. involves the interplay between Rule 35and Rule 43(c)(4). Rule 35provides in full as follows:
Rule 43(c)(4)provides as follows:
Mr. S.'s sentence was corrected under Rule 35(a).7In a recent Memorandum Decision by this Court, State v. Donald B.,No. 13–1205, 2015 WL 3751987 (W.Va. June 15, 2015), we addressed the issue of correcting a sentence under Rule 35(a). In Donald B.,the defendant argued that the trial court committed error in failing to hold a de novosentencing hearing to correct his sentence under Rule 35(a). The defendant in Donald B.originally was sentenced to ten to twenty-five years in prison for second degree sexual assault.8After the defendant's direct appeal and first federal habeas petition were denied, he filed a second federal habeas petition arguing that he was sentenced under the wrong statute. The defendant contended that the statute in place when he committed the offense had a penalty of ten to twenty years in prison. The Fourth Circuit eventually heard the case, vacated the sentence, and instructed the federal district court to remand the case to the State trial court to correct the sentence. When the case was remanded to the circuit court, it was treated as a sentence correction under Rule 35(a). As such, the trial court entered an order summarily correcting the sentence. The defendant appealed and argued that he was entitled to a de novoor plenary sentencing hearing. This Court disagreed succinctly as follows:
Petitioner's second and final assignment of error is that the circuit court erred in denying him a plenary sentencing hearing prior to resentencing him. Specifically, petitioner argues that the circuit court denied his rights to allocution, presentation of mitigation evidence, an opportunity for his attorney to address sentencing alternatives, and to be present in person at a sentencing hearing. Importantly, however, petitioner does not argue that he failed to receive a plenary sentencing hearing, with all attendant rights, at the time of his original disposition in this matter, and the State maintains that he was so provided with those rights. Therefore, petitioner, in essence, argues that he was entitled to a second plenary sentencing hearing due to the federal district court's order vacating his original sentence. Assuming, arguendo, that we adopt his position that the federal district court's mandate placed him in the position as if no original sentencing order had been entered, we still find no controlling authority entitling him to a...
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