State of West Virginia v. David Gilbert Riffle

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2022 Term FILED
_______________
June 7, 2022
No. 20-0765 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Respondent,
v.
DAVID GILBERT RIFFLE,
Petitioner.
________________________________________________________
Appeal from the Circuit Court of Braxton County
The Honorable Richard Facemire, Judge
Civil Action No. 19-F-5
AFFIRMED
________________________________________________________
Submitted: April 5, 2022
Filed: June 7, 2022
M. Tyler Mason, Esq. Patrick Morrisey, Esq.
Hughart Law Office Attorney General
Sissonville, West Virginia Lindsay See, Esq.
Counsel for the Petitioner Solicitor General
Katherine M. Smith, Esq.
Assistant Attorney General
Charleston, West Virginia
Counsel for the Respondent
CHIEF JUSTICE HUTCHISON delivered the Opinion of the Court.
JUSTICE BUNN did not participate in the decision in this case.
JUSTICE WOOTON dissents and reserves the right to file a dissenting opinion.
SYLLABUS BY THE COURT
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).
i
HUTCHISON, Chief Justice:
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
West Virginia Code § 61-3C-14b(b) provides:
1
Any person over the age of eighteen who uses a
computer in the manner proscribed by the provisions of
subsection (a) of this section and who additionally engages in
any overt act designed to bring himself or herself into the
minor’s, or the person believed to be a minor’s, physical
presence with the intent to engage in any sexual activity or
conduct with such a minor that is prohibited by law, is guilty
of a felony and shall be fined not more than $25,000 or
imprisoned in a state correctional facility for a determinate
sentence of not less than five nor more than thirty years, or
both: Provided, That subsection (a) shall be deemed a lesser
included offense to that created by this subsection.
1
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
Petitioner was charged with one count of solicitation of a minor via computer to
2
travel and engage the minor in prohibited sexual activity, in violation of West Virginia
Code § 61-3C-14b(b) (2016); one count of solicitation of a minor via computer, in violation
of West Virginia Code § 61-3C-14b(a) (2016); and eighteen counts of use of obscene
matter with intent to seduce a minor, in violation of West Virginia Code § 61-8A-4 (2016).
2
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), and three counts of use of
3
obscene matter with intent to seduce a minor, in violation of West Virginia Code § 61-8A-
4 (2016).
4
3
See n.1, supra.
West Virginia Code § 61-8A-4 provides:
4
Any adult, having knowledge of the character of the
matter, who knows or believes that a person is a minor at least
four years younger than the adult, and distributes, offers to
distribute or displays by any means any obscene matter to the
person who is known or believed to be a minor at least four
years younger than the adult, and such distribution, offer to
distribute, or display is undertaken with the intent or for the
purpose of facilitating the sexual seduction or abuse of the
minor, is guilty of a felony and, upon conviction thereof, shall
be fined not more than $25,000, or imprisoned in a state
correctional facility for not more than five years, or both. For
a second and each subsequent commission of such offense,
such person is guilty of a felony and, upon conviction, shall be
fined not more than $50,000 or imprisoned in a state
correctional facility for not more than ten years, or both.
3
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]. I don’t see any remorse. A matter of fact,
5
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
According to the Forensic Psychological Evaluation of petitioner that was
5
performed in connection with this case, petitioner
[u]nderstood that he is accused of “supposedly texting
someone who said they were under age.” [He] asserted that he
had no memory of the alleged acts. He stated that he would get
high and “set and text people all over the world” and had no
recollection of texting an underage girl or asking her about her
sexual experiences. He stated that the past year was a “blur” to
him. He does not know if it was drugs or a black out thing. . . .
He claimed that his attorney has not reviewed the specific
details of the accusations with him, but of what he knows of
those accusations he remembers nothing and is “entirely a
blank.” He professed not to remember what he might have told
police. Of the offenses he said he “can’t see [himself] doing
it.”
The pre-sentence investigation report similarly noted that petitioner “has not
accepted responsibility for the crimes for which he has been convicted and has expressed
little remorse for the same.”
4
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[.]” For the offenses of use of obscene matter with the
7
Petitioner’s criminal history includes, among other things, guilty pleas to charges
6
of assault, felony grand larceny, misdemeanor grand larceny, petit larceny, manufacturing
marijuana, domestic assault, and violation of a protective order (two counts). Additionally,
petitioner pled no contest to charges of petit larceny, battery (twice), and domestic battery.
The written plea offer dated February 14, 2019, that was signed by petitioner, his
7
counsel, and the prosecuting attorney, and the plea hearing order entered on March 27,
2019, correctly recounted that the penalty of imprisonment for a violation of West Virginia
Continued . . .
5
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
Code § 61-3C-14b(b) is “a determinate sentence of not less than five nor more than thirty
years” in a state correctional facility.
On appeal of his convictions and sentence, petitioner also argued that he entered
8
into his guilty plea without being fully informed or fully understanding the potential
penalty he faced, as required by Rule 11(c) of the West Virginia Rules of Criminal
Procedure; that his sentence was so severe and disproportionate to the crimes committed
so as to constitute cruel and unusual punishment; and that he was suffering from a mental
disease or defect at the time the alleged crimes were committed such that a supplemental
competency evaluation should have been conducted. See Riffle, at *2-3. As noted above,
this Court affirmed petitioner’s convictions and reversed and remanded the sentencing
Continued . . .
6
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[;]” and that “the real victims of this crime is [sic] my family and my – my kids and
9
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
order only with respect to the circuit court’s error in ordering petitioner to serve an
indeterminate prison term. See id. at *3.
In fact, petitioner exchanged text messages with the Homeland Security officer
9
whom he believed to be a thirteen-year-old girl for approximately one month.
7
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
happened.” Accordingly, the circuit court sentenced petitioner to a determinate thirty-year
term in the penitentiary on the soliciting a minor charge and, as before, imposed sentences
of five years each on the three counts of use of obscene matter with the intent to seduce a
minor. The court ordered all of the sentences to run consecutively for a total of forty-five
years in prison.
Petitioner thereafter filed a motion to correct illegal sentence pursuant to
Rule 35(a) of the West Virginia Rules of Criminal Procedure on the ground that the
determinate sentence violated his constitutional right to due process. Petitioner argued that
due process prohibits circuit courts from imposing a harsher punishment “‘[u]pon a
defendant’s conviction at retrial following prosecution of a successful appeal . . . and the
original sentence must act as a ceiling above which no additional penalty is permitted.’”
Syl. Pt. 3, in part, State v. Varlas, 243 W. Va. 447, 844 S.E.2d 688 (2020) (quoting Syl. Pt.
1, in part, State v. Gwinn, 169 W. Va. 456, 288 S.E.2d 533 (1982)). See also Syl. Pt. 2,
State v. Eden, 163 W. Va. 370, 256 S.E.2d 868 (1979) (holding that “[a] defendant who is
convicted of an offense in a trial before a justice of the peace and exercises his statutory
8
right to obtain a trial De novo in the circuit court is denied due process when, upon
conviction at his second trial, the sentencing judge imposes a heavier penalty than the
original sentence. W. Va. Const. art. 3, s 10.”). Petitioner argued that the imposition of the
determinate thirty-year prison sentence for the offense of soliciting a minor amounted to a
harsher punishment than the original indeterminate five-to-thirty-year sentence violating
his absolute right to appeal and resulting in a chilling effect on other defendants who wish
to appeal an illegal sentence.
By order entered on September 9, 2020, the circuit court denied petitioner’s
Rule 35(a) motion. The circuit court again acknowledged its “oversight and error” in
originally sentencing petitioner on the soliciting a minor charge to an indeterminate
sentence “when the statute called for a determinate sentence[,]” and explained that it had
clearly intended, in the original sentencing order, “to sentence [petitioner] to the maximum
allowable by law on all counts,” including ordering all sentences to run consecutively. The
court’s order recounted that which it included in its previous sentencing orders in support
of the sentences imposed. The circuit court subsequently entered a sentencing order on
10
September 15, 2020, from which petitioner now appeals.
The circuit court’s order also stated that the original and corrected sentences were
10
otherwise consistent with each other. We note that petitioner’s only challenge to the
corrected sentencing order is that the determinate thirty-year term of incarceration is
impermissibly harsher than the five-to-thirty-year indeterminate term originally imposed.
9
II. Standard of Review
This Court “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).
III. Discussion
Upon entry of petitioner’s guilty plea to one count of soliciting a minor, the
circuit court misread West Virginia Code § 61-3C-14b(b), which provided for a penalty of
imprisonment of “a determinate sentence of not less than five nor more than thirty years[.]”
Instead of imposing a definite term of incarceration that comported with the statute, the
circuit court inadvertently sentenced petitioner to an indefinite term of five to thirty years.
Petitioner’s original sentence was illegal and, therefore, void ab initio. “[W]here the statute
provides for a determinate sentence and an indeterminate sentence is imposed, such
sentence is void.” State ex rel. Truslow v. Boles, 148 W. Va. 707, 709, 137 S.E.2d 235, 236
(1964). See State ex rel. Nicholson v. Boles, 148 W. Va. 229, 234, 134 S.E.2d 576, 579
(1964) (“[A] sentence in a criminal case which is not imposed in strict conformity to the
penalty prescribed by statute is . . . void.”).
Following petitioner’s successful appeal of his illegal sentence, the circuit
court imposed a corrected sentence that conformed to the penalty prescribed by the statute,
but which petitioner contends amounts to a harsher punishment. Petitioner argues that he
instituted his initial appeal under the protection afforded by Varlas, which “guaranteed his
10
constitutional right to an appeal without ‘fear that he [would] receive a heavier sentence on
retrial[.]’” Id. at 451, 844 S.E.2d at 692 (quoting Eden, 163 W. Va. at 382, 256 S.E.2d at
875). According to petitioner, the circuit court’s imposition of the harsher penalty upon
remand will have “a chilling effect . . . on other defendants who wish to appeal an illegal
sentence” and violated his right to constitutional due process.
The State counters that the prohibition on harsher punishments espoused in
Varlas is not applicable to petitioner’s case. Petitioner succeeded on appeal only as to the
circuit court’s error in imposing an illegal sentence and the matter was remanded for the
limited purpose of correcting that sentence, resulting in the imposition of a legal sentence
that was within the limits of West Virginia Code § 61-3C-14b(b). According to the State,
because an illegal sentence is a void sentence that may be corrected at any time, the
“chilling effect” on a defendant’s constitutional due process right to appeal that sentence
is not present. We agree.
In Varlas, the defendant was convicted of first-degree attempted sexual abuse
and second-degree sexual assault. For the latter offense, he was sentenced to ten to twenty-
five years in prison, which sentence was suspended in favor of five years’ probation. 243
W. Va. at 449, 844 S.E.2d at 690. The defendant successfully appealed his convictions,
and the case was remanded for a new trial. See id. The defendant was retried and
reconvicted of the same offenses, and he was again sentenced to a ten-to-twenty-five-year
prison term for the offense of second-degree sexual assault; however, the circuit court
refused to suspend that sentence in favor of probation. See id. The defendant in Varlas
11
appealed the sentencing order on the ground that it “violat[ed] this Court’s precedent
prohibiting harsher penalties upon reconviction post-appeal[.]” Id. at 450, 433 S.E.2d at
691.
On appeal in Varlas, we reiterated our due process concerns relating to the
imposition of harsher penalties following a successful appeal of a conviction:
“When a defendant refuses to prosecute an appeal to which he
is entitled by law for fear he will receive a heavier sentence on
retrial, he has been denied his right to appeal. The decision not
to appeal is the defendant’s but the necessity of making the
decision is forced upon him by the State. The State is in effect
imposing conditions upon the defendant’s right to appeal by
telling him that he has the right, but that by exercising it he
risks a harsher sentence.
....
“Protection of the criminal defendant’s fundamental right to
appeal and avoidance of any possible vindictiveness in
resentencing would force us to hold that upon a defendant’s
conviction at retrial following prosecution of a successful
appeal, imposition by the sentencing court of an increased
sentence violates due process and the original sentence must
act as a ceiling above which no additional penalty is
permitted.”
Id. at 451, 452, 844 S.E.2d at 692, 693 (quoting Eden, 163 W. Va. at 382, 384, 256 S.E.2d
at 875, 876) (emphasis added). We thus held in syllabus point three of Varlas that “‘[u]pon
a defendant’s conviction at retrial following prosecution of a successful appeal, imposition
by the sentencing court of an increased sentence violates due process and the original
sentence must act as a ceiling above which no additional penalty is permitted.’ Syllabus
12
Point 1, in part, State v. Gwinn, 169 W. Va. 456, 288 S.E.2d 533 (1982).” Varlas, 243 W.
Va. at 689, 844 S.E.2d at 689, syl. pt. 3 (emphasis added).
Thus, in Varlas, we reaffirmed that a defendant who succeeds in appealing
his conviction and is retried and reconvicted of the same offenses must be shielded from a
11
vindictive sentencing judge and should not be forced to forego his right to appeal for fear
he will receive a more severe sentence if reconvicted in a new trial. Our due process
concerns, however, presupposed that the defendant’s original sentence conformed to the
penalty provided for in the applicable statute and was, in that regard, a lawful, valid
sentence. Furthermore, in Varlas, we found there to be error in the conviction thereby
warranting a new trial that resulted in a reconviction. Those circumstances are not present
Vindictiveness in resentencing refers to retaliation against a defendant for having
11
successfully challenged his conviction:
Due process of law, then, requires that vindictiveness
against a defendant for having successfully attacked his first
conviction must play no part in the sentence he receives after a
new trial. And since the fear of such vindictiveness may
unconstitutionally deter a defendant’s exercise of the right to
appeal or collaterally attack his first conviction, due process
also requires that a defendant be freed of apprehension of such
a retaliatory motivation on the part of the sentencing judge.
North Carolina v. Pearce, 395 U.S. 711, 725 (1969), overruled by Alabama v. Smith, 490
U.S. 794, 795 (1989) (holding that “no presumption of vindictiveness arises when the first
sentence was based upon a guilty plea, and the second [increased] sentence follows a trial”
after the defendant succeeds in having his guilty plea vacated). Because petitioner
affirmatively states that he does not believe that the sentencing judge acted vindictively in
imposing the corrected sentence, we do not address whether there was any likelihood that
vindictiveness played a part in the imposition of that sentence. Accord Varlas, 243 W. Va.
at 451, 844 S.E.2d at 692 (declining to address vindictiveness “because it is not implicated
on these facts, nor has Mr. Varlas argued that it is”).
13
here. In petitioner’s initial appeal, we upheld his plea agreement and reversed only the
sentencing order because the circuit court mistakenly imposed an illegal sentence by
ordering that petitioner serve an indeterminate rather than a determinate sentence in
conformity with the statute. See Riffle at *3.
As a rule, an illegal sentence is a void sentence and “being a nullity, may be
superseded by a valid sentence[.]” State ex rel. Rucker v. Boles, 149 W. Va. 190, 192, 139
S.E.2d 265, 267 (1969). Petitioner’s void sentence, having no legal effect, “created no
rights and neither impaired nor affected any right.” State v. Babbel, 813 P.2d 86, 88 (Utah
1991). Thus, the circuit court’s correction of that sentence “stands on a different footing
from the correction of an error in a conviction.” Id. Indeed, although petitioner’s illegal
sentence came to light through his appeal to this Court, we “simply recognized in effect
the clear power of the trial court to correct an illegal sentence, irrespective of the appeal.
The trial court has this power at any time, whether before or after an appeal, and even if
there is no appeal.” Id. See W. Va. R. Crim. P. 35(a) (“The court may correct an illegal
sentence at any time . . . .”). Furthermore, pursuant to Rule 35(a), an illegal sentence may
14
12 13
be corrected at the behest of not only the defendant, but also the State or circuit court.
We are unaware of any legal authority prohibiting a circuit court from correcting an illegal
sentence where the lawful sentence to be imposed is a more severe punishment. To the
contrary, “[a]n increase in sentence where the original sentence is void is the ‘most
common exception to the general rule prohibiting enhancement of an imposed sentence.’”
Cline v. State, 571 So.2d 368, 369-70 (Ala. Crim. App. 1990). See Safrit v. Garrison, 623
F.2d 330, 332 (4th Cir. 1980) (“It is clear, of course, that a void or illegal sentence may be
corrected, even though the correction may result in an increase in the sentence.”). See also
Annotation, Power of Court to Increase Severity of Unlawful Sentence-Modern Status, 28
A.L.R.4th 147, 152 (1984) (“The rule followed by most jurisdictions is that an unlawful
sentence is of no legal effect, allowing the court to correct the sentence by imposing lawful
terms at any time the illegality is discovered, regardless of whether the correction involves
an increase. . . .”). Ultimately then, the circuit court “did the only thing it could do in
[petitioner’s] case. He had not been sentenced, since no sentence permitted by law had
been imposed upon him. Consequently, the [corrected] sentence[e] . . . was the first lawful
sentence imposed upon him and did not in any fashion violate his right to due process[.]”
12
See e.g., State ex rel. Daye v. McBride, 222 W. Va. 17, 20, 658 S.E.2d 547, 550
(2007) (State filed Rule 35(a) motion “to correct the sentencing order, contending that a
life sentence was mandatory under [the applicable statute] …. [and] the judge entered an
order which ‘corrected’ the initial sentence and ordered that the [defendant] be confined to
a correctional facility for life pursuant to [the applicable statute]”).
See e.g., State v. Cookman, 240 W. Va. 527, 532 n.7, 813 S.E.2d 769, 774 n.7
13
(2018) (acknowledging that “a court may correct an illegal sentence sua sponte” (citations
omitted)).
15
Baker v. State, 473 So.2d 1127, 1128 (Ala. Crim. App. 1984). See also Reyes v. United
States, 262 F.2d 801, 801-02 (5th Cir. 1959) (holding that correction of an illegal sentence
with a more severe sentence “does not violate the constitutional right of a convicted
person”); Babbel, 813 P.2d at 88 (reasoning that “a defendant is not likely to appeal a
sentence that is unlawfully lenient, and there is, therefore, minimal chilling effect on the
right to appeal”); State v. Koch, 606 A.2d 875, 878 (N.J. Super. Ct. Law Div.1991) (holding
that “it is not a violation of due process to resentence a defendant to a more severe sentence
following a retrial, where the resentencing merely corrects a previously illegal sentence in
order to comply with the original trial court’s intentions”).
Accordingly, we hold that 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. 14
Finally, it is beyond cavil that “‘[t]he Legislature has [the] power to create
and define crimes and fix their punishment[,]’” and that it is the circuit court’s role to
15
14
As have other courts, we do not foreclose the possibility that “‘there may be
circumstances under which even a corrected illegal sentence may be fundamentally unfair
[and] thus violative of due process.’” Babbel, 831 P.2d at 88 (quoting State v. Delmondo,
696 P.2d 344, 346 (Haw.1985)) (emphasis added). However, we do not view petitioner’s
corrected sentence to fall within that exception.
Syl. Pt. 2, State v. Butler, 239 W. Va. 168, 799 S.E.2d 718 (2017) (quoting Syl.
15
Pt. 2, in part, State v. Woodward, 68 W.Va. 66, 69 S.E. 385 (1910)).
16
impose punishment within those parameters. As we have held, “[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.” Syl. Pt. 4, State v. Goodnight, 169 W. Va. 366, 287
S.E.2d 504 (1982). The circuit court was thus vested with the discretion to impose a
sentence within the parameters of West Virginia Code § 61-3C-14b(b), and the court did
precisely that. Further, petitioner does not contend that the lawful, corrected sentence was
based on any impermissible factor. The circuit court informed the parties that it had
originally intended to impose the maximum prison term allowed under the statute,
including running all sentences consecutively, based upon petitioner’s failure to accept
responsibility for his crimes, lengthy criminal history, the deliberate nature of the offenses,
his anti-social attitude, and serious problem with drug addiction. Because the circuit court
acted well within its discretion in imposing petitioner’s corrected sentence, we find no error
in the sentencing order.
IV. Conclusion
For the reasons stated above, we affirm the circuit court’s September 15,
2020, order.
Affirmed.
17