State v. Varlas

• Decision Date: 16 June 2020
• Docket Number: No. 19-0005,19-0005
• Citation: 844 S.E.2d 688
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Respondent v. Nicholas VARLAS, Defendant Below, Petitioner

844 S.E.2d 688

STATE of West Virginia, Plaintiff Below, Respondent

v.Nicholas VARLAS, Defendant Below, Petitioner

No. 19-0005

Supreme Court of Appeals of West Virginia.

Submitted: March 18, 2020

Filed: June 11, 2020

Dissenting Opinion of Justice Hutchison June 16, 2020

Carl A. Frankovitch, Esq., M. Eric Frankovitch, Esq., FRANKOVITCH, ANETAKIS, SIMON, DECAPIO & PEARL, LLP, Weirton, West Virginia, Counsel for Petitioner.

Patrick Morrisey, Esq., Attorney General, Caleb A. Ellis, Esq., Assistant Attorney General, Andrea Nease Proper, Assistant Attorney General, Charleston, West Virginia, Counsel for Respondent.

WALKER, Justice:

In 2014, Petitioner Nicholas Varlas was convicted of attempted sexual abuse in the first degree¹ and sexual assault in the second degree.² For the latter crime, he was sentenced by the Circuit Court of Brooke County to ten to twenty-five years’ incarceration, but that sentence was suspended in favor of five years’ probation. Mr. Varlas successfully appealed to this Court, and we reversed his convictions and remanded for a new trial in 2016. A second trial ended in a mistrial. In 2018, the circuit court conducted a third trial and a jury once again convicted Mr. Varlas of one count each of attempted sexual abuse in the first degree and sexual assault in the second degree. But when the circuit court entered a new sentencing order, it failed to suspend the sentence of ten to twenty-five years’ incarceration in favor of probation.

Mr. Varlas now appeals that sentencing order, arguing that the circuit court's failure to suspend that sentence in favor of probation violates his constitutional due process rights and this Court's prohibition on heightened sentencing upon reconviction post-appeal. We agree that the sentence is an impermissible increase in penalty under State v. Eden³ and vacate the circuit court's December 2018 sentencing order and remand for resentencing.

I. FACTUAL AND PROCEDURAL BACKGROUND

In August of 2012, Mr. Varlas hosted a social gathering at his home and the victim, N.S., attended. At some point during the evening, Mr. Varlas and N.S. were left alone and watched a pornographic film together. During the film, Mr. Varlas and N.S. engaged in sexual intercourse. The following day, N.S. reported the incident to police alleging that the intercourse was nonconsensual.

A Brooke County grand jury later indicted Mr. Varlas on one count of attempted sexual abuse in the first degree and one count of sexual assault in the second degree. After a jury trial conducted in September 2014, the jury returned a verdict of guilty on both counts. On December 18, 2014, the Circuit Court of Brooke County entered a sentencing order (2014 Order) in which it sentenced Mr. Varlas as follows: (1) one to three years’ incarceration for attempted sexual abuse in the first degree, and (2) ten to twenty-five years’ incarceration for sexual assault in the second degree. The court then suspended the ten-to-twenty-five-year sentence in favor of five years’ probation and required Mr. Varlas to register as a sex offender for life.⁴

Mr. Varlas appealed his convictions to this Court, arguing that the circuit court violated his constitutional right to a fair trial by precluding the introduction of certain text messages into evidence. This Court agreed and in 2016 reversed Mr. Varlas's convictions and remanded the case for a new trial.⁵ While awaiting our decision in that matter, Mr. Varlas completed his sentence of one to three years’ incarceration and was released. He began serving his term of probation approximately two weeks prior to the publication of our opinion on June 16, 2016. As a result of our decision, the circuit court immediately discontinued Mr. Varlas's probation pending a new trial.

The circuit court conducted a second trial in May 2018, which ended in a mistrial due to the prosecution's introduction of improper and unfairly prejudicial testimony. The circuit court then conducted a third trial in October 2018. As with the first trial, Mr. Varlas was convicted of one count of attempted sexual abuse in the first degree and one count of sexual assault in the second degree. After a sentencing hearing, the circuit court entered a new sentencing order on December 4, 2018 (2018 Order). A different sentencing judge entered the 2018 Order than entered the 2014 Order. In the 2018 Order, the circuit court acknowledged that under this Court's holding in State v. Eden , it could not impose a harsher penalty upon Mr. Varlas than had been imposed by the 2014 Order. Despite this acknowledgement, the circuit court then imposed a harsher penalty. Specifically, though the 2018 Order imposed an identical term of incarceration to the 2014 Order, it failed to suspend the ten-to-twenty-five year sentence for sexual assault in the second degree in favor of five years’ probation. That failure is the basis of this appeal.

II. STANDARD OF REVIEW

We have previously held that "the Supreme Court of Appeals reviews sentencing orders ... under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands."⁶ With this standard in mind, we proceed to address the parties’ arguments.

III. DISCUSSION

On appeal, Mr. Varlas argues that the 2018 Order was erroneous because the circuit court failed to suspend his sentence of ten to twenty-five years’ incarceration in favor of five years’ probation as it had done in the 2014 Order. He contends that the failure to grant probation in the 2018 Order effectively imposed a harsher penalty upon him than the 2014 Order did, thereby violating this Court's precedent prohibiting harsher penalties upon reconviction post-appeal under Eden . The State defends the 2018 Order, arguing first that because the United States Supreme Court has overruled its decisions relied on by this Court in Eden , it has effectively invalidated Eden . In the alternative, the State argues that if Eden is valid, the circuit court did not err when it did not grant probation in the 2018 Order because probation is not part of a criminal sentence. So, the State reasons, probation need not have been considered by the lower court in determining whether the 2018 Order imposed a harsher penalty than the 2014 Order. We analyze each of these arguments in turn.

A. Eden remains valid precedent in the State of West Virginia.

The outcome of this appeal depends entirely upon the operation and interpretation of our holding in Eden . As such, before we can address whether the circuit court violated the due process protections articulated in Eden , we revisit the issues and analysis in that case. Law enforcement arrested Mr. Eden on a warrant for reckless driving in a school zone.⁷ The magistrate court held a trial, found Mr. Eden guilty of a misdemeanor, and fined him fifty dollars plus costs.⁸ Mr. Eden appealed to the circuit court, which held a trial de novo.⁹ At the end of the trial, the jury found Mr. Eden guilty and the court sentenced him to thirty days in jail plus a two-hundred-dollar fine.¹⁰ Mr. Eden appealed to this Court arguing that the circuit court violated his due process rights by imposing a harsher sentence than that imposed by the magistrate court.¹¹

To resolve Mr. Eden's appeal, we looked to the 1969 decision by the Supreme Court of the United States in North Carolina v. Pearce .¹² In Pearce , the Court considered "the constitutional limitations upon the imposition of a more severe punishment after conviction for the same offense upon retrial."¹³ The Court found that a harsher sentence on retrial following a successful appeal did not raise double jeopardy or equal protection concerns. But, the Court reasoned, that kind of sentence raised serious due process concerns. As the Court explained, the harsher sentence would be a penalty for pursuing an appeal:

even if the first conviction has been set aside for nonconstitutional error, the imposition of a penalty upon the defendant for having successfully pursued a statutory right of appeal or collateral remedy would be no less a violation of due process of law. A new sentence, with enhanced punishment, based upon such a reason, would be a flagrant violation of the rights of the defendant. A court is without right to put a price on an appeal. A defendant's exercise of a right of appeal must be free and unfettered. It is unfair to use the great power given to the court to determine sentence to place a defendant in the dilemma of making an unfree choice.^{[14 ]}

The Supreme Court set out two guiding principles to justify this prohibition on heightened punishments post-appeal: (1) concerns about vindictiveness in sentencing, and (2) the chilling effect such harsher penalties may have on appeals.¹⁵

Pearce and Eden arose in different contexts. In Pearce , the defendants had successfully attacked their original convictions via appeal and were convicted at retrial, while in Eden the defendant did not attack his conviction, but sought a trial de novo.¹⁶ This Court addressed both scenarios in Eden , explaining that

the question of increased sentencing on reconviction after remand from an appellate court is a matter of grave concern to this Court and a discussion of the issues involved seems necessary to a determination of the case at hand. Therefore, we will consider the effect on due process in West Virginia of increased sentences imposed after reconviction following an appeal attacking the original conviction as well as those imposed upon conviction at a trial De novo granted as a matter of statutory right.^{[17 ]}

After the Eden court analyzed Pearce , it then adopted the Supreme Court's reasoning that, once states establish avenues of appellate review, they must " ‘be kept free of unreasoned distinctions that can only impede open and equal access to the courts.’ "¹⁸ We then found that increased penalties upon reconviction post-appeal infringe upon defendants’ due process rights and right to an appeal under West Virginia law.¹⁹ Specifically, we stated that

when a

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