State of West Virginia v. Nicholas Shackleford ( 2022 )

FILED
August 30, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
State of West Virginia,
Plaintiff Below, Respondent
vs.) No. 21-0265 (Berkeley County CC-02-2020-F-144)
Nicholas Shackleford,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Nicholas Shackleford, by counsel S. Andrew Arnold, appeals the Circuit Court
of Berkeley County’s March 8, 2021, order denying his Rule 35(b) motion requesting a reduction
of his sentence. Respondent the State of West Virginia (“the State”), by counsel Patrick Morrisey
and Andrea R. Nease Proper, filed its response in support of the circuit court’s order. On appeal,
petitioner alleges that the circuit court erred by considering the State’s response opposing his Rule
35(b) motion and in failing to adequately consider sentencing petitioner under the youthful
offender statute.
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 circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.
On December 31, 2019, petitioner, Kristen Barron and other individuals gathered and
consumed alcoholic beverages. Petitioner, who was eighteen years old at the time, then drove his
motor vehicle while intoxicated with Ms. Barron in the passenger seat. Petitioner crashed the
vehicle, ejecting him and Ms. Barron. Ms. Barron was killed upon impact.
In June of 2020, petitioner was indicted on one count of felony driving under the influence
(“DUI”) resulting in death. Prior to trial, petitioner entered into a plea agreement whereby he
agreed to plead guilty to one count of DUI resulting in death in exchange for the State’s agreement
to “make no sentencing recommendation at sentencing (except to the extent restitution is
requested).” Further, the State agreed “not to make any argument or recommendation to the Court
at sentencing” but did reserve the right to respond to questions, provide a factual foundation for
the plea, and respond to any false or inaccurate statements. Specifically, the agreement allowed
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the State to “[r]respond to questions raised by the [c]ourt.” The plea agreement was signed by the
parties in October of 2020, and petitioner pled guilty at a hearing later that month.
In November of 2020, petitioner’s pre-sentence investigation report (“PSI”) was complete
and entered into the record. The report detailed that petitioner had a prior juvenile conviction of
reckless driving wherein he pled no contest. Petitioner also admitted to prior alcohol, tobacco, and
marijuana usage, beginning when he was sixteen and seventeen years old. At the time of the report,
petitioner was working as an electrician. Petitioner reported anxiety and depression after the crash
and indicated that he sought treatment but acknowledged he only attended four treatment sessions.
According to the report, petitioner was also required to report to the Day Report Center since
March of 2020 but between then and the issuance of the report in November of 2020, petitioner
had missed thirteen of the required classes and six drug screens. Further, petitioner tested positive
for marijuana seven times between March 10, 2020, and April 2, 2020. The report also recounted
several victim impact statements requesting that petitioner serve significant prison time and not be
sentenced as a youthful offender. The victim’s mother asserted that petitioner had a history of
reckless behavior, and that even after the crash the behavior continued with petitioner posting
photographs and videos of him partying with friends. Ms. Barron’s mother stated that petitioner
had shown no remorse and had not apologized to her family. Ms. Barron’s father requested that
the circuit court impose the maximum fifteen years of incarceration penalty upon petitioner. Ms.
Barron’s brother indicated that petitioner had crashed several vehicles in the past and had been
expelled from school for alcohol consumption. He similarly requested that the circuit court impose
a harsh punishment upon petitioner.
Petitioner filed a sentencing statement that same month and noted his employment potential
as an electrician and stated remorse for his actions. Petitioner requested home incarceration or
sentencing to the center for housing youthful male offenders. Petitioner also submitted letters from
his mother, friends, and other relatives urging that petitioner not be sentenced to incarceration and
repeatedly noted that petitioner made a “mistake.” In one letter, petitioner’s aunt admitted that
petitioner had been making risky decisions regarding partying and driving prior to the crash.
However, one of petitioner’s friends asserted that petitioner had “turned his life around”
subsequent to the crash.
At the sentencing hearing, the circuit court accepted the PSI report without objection. Ms.
Barron’s mother, father, and sister provided impact statements at the hearing, all requesting a
heavy sentence due to Ms. Barron’s death. Ms. Barron’s mother and father recounted petitioner’s
prior issues with excessive speeding while driving and prior crash incidents. Petitioner’s counsel
argued for leniency in sentencing, and petitioner read a letter to Ms. Barron’s family expressing
remorse for his actions. Prior to effectuating its sentence, the court provided a comprehensive
statement regarding the seriousness of the offense, the need for punishment, and petitioner’s lack
of prior criminal history. The court also noted that deterrence was a factor in the case and stated
that petitioner may not be deterred from future similar behaviors if he was allowed to continue
living at home. The court balanced statements regarding petitioner’s character against his previous
risky behaviors and noted that petitioner had failed to report to probation on at least two occasions
since the crash. The court further noted that petitioner had missed thirteen total classes at the Day
Report Center. The court found that petitioner’s failure to fully engage in his recovery weighed
heavily against the idea that he was remorseful. As such, the court found that sentencing petitioner
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to the Anthony Center was not appropriate and sentenced him to three to fifteen years of
incarceration. 1
In February of 2021, petitioner filed a “Motion for Reconsideration of Sentence Pursuant
[to] Rule 35(b).” Petitioner requested probation or sentencing to the Anthony Center, noting he
had been incarcerated for four months at the time. On March 5, 2021, the circuit court ordered the
State to respond to petitioner’s motion within fifteen days of its order. The State responded in
opposition to petitioner’s motion for reconsideration the same day as the court’s order, stating that
there had been “no material change in circumstances, nor compelling reason for the [c]ourt to
revisit its ruling.” Petitioner replied to the State’s response on March 8, 2021, pointing to a
provision in the plea agreement that the State stand silent at sentencing, and asked the court to
disregard the State’s response. Petitioner further argued that, after serving several months in jail,
he had reflected on his conduct and wished to “remind the [c]ourt of his pledge to devote his life’s
work to honor Ms. Barron.” Petitioner also stated that he sought to address statements by Ms.
Barron’s family, but he did not indicate what statements he sought to address.
On the same date as petitioner’s reply—March 8, 2021—the State retracted its opposition
to petitioner’s motion. Finally, on the same day, the circuit court denied petitioner’s motion for
reconsideration, stating that “[petitioner]’s request of the [c]ourt to reduce the currently imposed
Division of Corrections sentence would depreciate the gravity of the crime committed as well as
the impact on the victim’s family.” Further, the court noted it considered petitioner’s arguments in
favor of alternative sentencing at the sentencing hearing and found that petitioner had “provided
no change in circumstances that would warrant reconsideration or a hearing thereupon.” Petitioner
appeals the March 8, 2021, order denying his Rule 35(b) motion requesting a reduction of his
sentence.
This Court has held that
“[i]n 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 35 motion 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 novo review.” Syl.
Pt. 1, State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).
Syl. Pt. 1, State v. Marcum, 238 W. Va. 26, 792 S.E.2d 37 (2016). A motion for reduction of
sentence under Rule 35(b) is “essentially a plea for leniency from a presumptively valid
conviction.” Head, 198 W. Va. at 306, 480 S.E.2d at 515 (Cleckley, J., concurring).
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“Anthony Center” refers to the Anthony Correctional Center, which is a potential
alternative sentence for young adult offenders between the ages of eighteen and twenty-five.
Offenders are committed for a term of six months to two years and are released on probation if
successful in completing the program’s requirements. See W. Va. Code §§ 25-4-1 to 25-4-12.
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On appeal, petitioner contends that the circuit court’s order denying his Rule 35 motion
should be reversed and the matter remanded for further consideration by a different judge.
Petitioner argues that his motion should be revisited because the State breached the terms of the
plea agreement with him when it filed its opposition to his Rule 35 motion. Petitioner
acknowledges that the State later retracted its opposition to his motion in a subsequent filing but
contends it was filed on the same day—indeed, mere minutes—before the circuit court entered an
order denying the Rule 35 motion. As such, petitioner contends that the court erred by taking the
State’s opposition to his motion in consideration when ruling on the motion. We find no merit to
petitioner’s argument.
“Cases involving plea agreements allegedly breached by either the
prosecution or the circuit court present two separate issues for appellate
consideration: one factual and the other legal. First, the factual findings that
undergird a circuit court’s ultimate determination are reviewed only for clear error.
These are the factual questions as to what the terms of the agreement were and what
was the conduct of the defendant, prosecution, and the circuit court. If disputed, the
factual questions are to be resolved initially by the circuit court, and these factual
determinations are reviewed under the clearly erroneous standard. Second, in
contrast, the circuit court’s articulation and application of legal principles is
scrutinized under a less deferential standard. It is a legal question whether specific
conduct complained about breached the plea agreement. Therefore, whether the
disputed conduct constitutes a breach is a question of law that is reviewed de novo.”
Syllabus Point 1, State ex rel. Brewer v. Starcher, 195 W.Va. 185, 465 S.E.2d 185(1995).
Syl. Pt. 1, State v. Martin, 225 W. Va. 408, 693 S.E.2d 482 (2010).
Further, we have long recognized that “[a]s a matter of criminal jurisprudence, a plea
agreement is subject to principles of contract law insofar as its application insures a defendant
receives that to which he is reasonably entitled.” State ex rel. Brewer v. Starcher, 195 W. Va. 185,
192, 465 S.E.2d 185, 192 (1995). Regarding the interpretation of plea agreements, we have
previously noted that
[a]ny ambiguities in a plea agreement will be construed against the State. Syl. pt.
3, in part, State ex rel. Thompson v. Pomponio, 233 W.Va. 212, 757 S.E.2d 636(2014) (rejecting State’s argument that language of plea agreement was ambiguous,
and holding that any ambiguity must be construed against State). Nevertheless, a
plea agreement should be read reasonably, without resort to strained or hyper-
technical interpretation. See United States v. Larson, 78 Fed.Appx. 650, 655-56
(10th Cir. 2003); United States v. Little, 14 Fed.Appx. 200, 204 (4th Cir. 2001).
State v. Wilson, 237 W. Va. 288, 293, 787 S.E.2d 559, 564 (2016). Moreover,
“[i]t is not the right or province of a court to alter, pervert or destroy the clear
meaning and intent of the parties as expressed in unambiguous language in their
written contract or to make a new or different contract for them.” Syllabus point 3,
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Cotiga Development Co. v. United Fuel Gas Co., 147 W.Va. 484, 128 S.E.2d 626(1962).
State v. Stewart, No. 18-0006, 2019 WL 181479, at *5 (W. Va. Jan. 14, 2019)(memorandum
decision) (citation omitted).
With these legal principles in mind, we find no error in the State’s compliance with the
plea agreement. Although the State did agree to “not make any argument or recommendation to
the Court at sentencing,” the State did not violate the agreement by responding to the Rule 35(b)
motion upon request by the circuit court. Indeed, this Court has long held that “[a] ‘sentence’ is a
judgment of the court, formally declaring to the accused the legal consequences of the guilt for
which he has been convicted, or has confessed.” Syl., Cohn v. Ketchum, 123 W. Va. 534, 17 S.E.2d
43 (1941). Here, petitioner’s sentence was announced by the circuit court at the sentencing hearing
and memorialized in the sentencing order in November of 2020. As such, the State fulfilled its
obligation under the plea agreement when it stood silent during the sentencing hearing.
Further, the plea agreement noted that the State “reserves the right to,” among other things,
“[r]espond to questions raised by the [c]ourt.” After petitioner filed his Rule 35(b) motion, the
court specifically directed the State to “file a response” as well as submit a proposed order along
with the response. Thus, the State filed its response as requested by the court. This language is
straightforward and unambiguous, and we will not resort to the interpretation petitioner asks this
Court to apply: that the State was not allowed to oppose his Rule 35(b) motion or otherwise
respond to the circuit court’s request for a response. The plea agreement expressed that the State
would stand silent at sentencing, and that is what it did. That the State later opposed his post-
conviction Rule 35(b) motion does not prove that the State breached the plea agreement. It is also
clear from a plain reading that Rule 35 presupposes that a sentence was already imposed. “At the
time a Rule 35(b) motion is filed, a final sentence order has been entered.” Head, 198 W. Va. at
305, 480 S.E.2d at 514 (Cleckley, J., concurring). Further, “[a] Rule 35(b) hearing is not, nor was
it ever intended to be, a sentencing hearing.” Id. at 306, 480 S.E.2d at 515 (Cleckley, J.,
concurring).
Petitioner also cites to United States v. Garnett, 691 F. Supp. 969 (N.D. W. Va. 1988), in
support of his argument that the State broke the plea agreement by opposing his Rule 35(b) motion.
However, the plea agreement in Garnett is distinguishable from the plea agreement at issue here.
In Garnett, the plea agreement stated: “[t]he Defendant understands that the matter of sentencing
is left in the sole discretion of the sentencing judge, and the United States will take no position
with respect to the final disposition.” The Garnett court noted that “[t]he question before the Court
is whether a promise to ‘take no position with respect to the final disposition’ allows the
Government to oppose a Rule 35 motion to reduce sentence.” Id. at 971-72. The court found the
phrase—“take no position with respect to the final disposition”—to be dispositive in interpreting
the plea agreement. The court noted that the Government went “one step further” than usual in a
plea agreement by its agreement to this clause. However, the plea agreement in this case
specifically limited the State to stand silent at sentencing and nothing more. Therefore, the facts
underlying the Garnett decision are wholly distinguishable from the facts of the case at bar.
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In his second assignment of error, petitioner argues that the circuit court erred in denying
his Rule 35 motion for failure to adequately consider sentencing under the Youthful Offenders
Act. Petitioner contends that he was just eighteen years old at the time of his offense and that
serving several months of incarceration has provided him “the opportunity to further reflect on his
conduct.” Petitioner acknowledges that the “decision whether to invoke . . . the Youthful
Offender[s] Act is within the sole discretion of the sentencing judge.” Nevertheless, petitioner
avers that the circuit court erred by ruling prior to his opportunity to review the sentencing
transcript “in order to address unsubstantiated allegations made in the sentencing hearing by the
victim’s family.” This Court has stated as follows:
Just as a trial court’s decision to grant or deny probation is subject to the
discretion of the sentencing tribunal, so too is the decision whether to sentence an
individual pursuant to the Youthful Offenders Act. The determinative language of
West Virginia Code § 25-4-6 is stated indisputably in discretionary terms: “[T]he
judge of any court . . . may suspend the imposition of sentence . . . and commit the
young adult to the custody of the West Virginia commissioner of corrections to be
assigned to a center.” Id. (emphasis supplied). Since the dispositive statutory term
is “may,” there can be no question that the decision whether to invoke the
provisions of the Youthful Offenders Act is within the sole discretion of the
sentencing judge. See State v. Allen, 208 W.Va. 144, [157], 539 S.E.2d 87, [100]
(1999) (recognizing that “[c]lassification of an individual as a youthful offender
rests within the sound discretion of the circuit court”); accord State v. Richards,
206 W.Va. 573, 575, 526 S.E.2d 539, 541 (1999) (stating that Youthful Offenders
Act “grants discretionary authority to the circuit courts to suspend imposition of
sentence, and place a qualifying defendant in a program of rehabilitation at a
youthful-offender center”) (citation omitted).
State v. Shaw, 208 W. Va. 426, 430, 541 S.E.2d 21, 25 (2000). Moreover, “‘[s]entences imposed
by the trial court, if within statutory limits and if not based on some [im]permissible factor, are not
subject to appellate review.’ Syllabus Point 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504(1982).” Syl. Pt. 6, State v. Slater, 222 W.Va. 499, 665 S.E.2d 674 (2008). Upon review of the
record, the circuit court sentenced petitioner within the statutory limit for DUI resulting in death
pursuant to West Virginia Code § 17C-5-2(b) and the sentences were not based on an
impermissible factor. Furthermore, the plea agreement did not require youthful offender treatment
sought by petitioner, such as that offered at the Anthony Center, and the circuit court was within
its discretion to decline to sentence him pursuant to the Youthful Offenders Act. This Court finds
no error in the circuit court’s denial of petitioner’s Rule 35(b) motion because petitioner was
properly sentenced pursuant to the statute.
For the foregoing reasons, we find no error in the circuit court’s March 8, 2021, order.
Affirmed.
ISSUED: August 30, 2022
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CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
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