State of West Virginia v. Nicholas Varlas

FILED June 16, 2020

No. 19-0005 – State of West Virginia v. Nicholas Varlas released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS

OF WEST VIRGINIA HUTCHISON, Justice, dissenting, joined by ARMSTEAD, Chief Justice:

This case presented an excellent opportunity for this Court to reinstate sentencing discretion in circuit courts that was wrongfully stripped from them by the decision in State v. Eden, 163 W. Va. 370, 256 S.E.2d 868 (1979) and its progeny. As pointed out by the majority opinion, under Eden a trial court is prohibited from increasing the punishment of a defendant convicted of the same offense on retrial after an appeal. 1 Prior to Eden the courts of this state had the discretion to impose a greater sentence on a defendant who was convicted on retrial of the same offense after an appeal. See, e.g., Syl. pt. 2, State ex rel. Bradley v. Johnson, 152 W. Va. 655, 166 S.E.2d 137 (1969), overruled by State v. Eden, 163 W. Va. 370, 256 S.E.2d 868 (1979) (“A void sentence is in law no sentence at all and the court upon a valid sentence may impose any penalty provided by law.”).

As noted in the majority opinion, the Petitioner’s original sentence of 10 to 25 years imprisonment for sexual assault in the second degree was suspended, and he was placed on probation. 2 This Court reversed the conviction and ordered a new trial. The Petitioner’s second trial was presided over by a different judge. After being convicted by a jury a second time for sexual assault in the second degree, the circuit court imposed a sentence of 10 to 25 years imprisonment. However, the circuit court did not suspend the sentence and place the defendant on probation. 3 The circuit court found that Eden and its progeny did not apply to probation. Therefore, the Petitioner was not entitled to receive that sentence.

The circuit court was absolutely correct in concluding as a matter of law that Eden and its progeny did not apply to probation. This Court has held that “[p]robation is not a sentence for a crime but instead is an act of grace upon the part of the State to a person who has been convicted of a crime.” State v. Jones, 216 W.Va. 666, 669, 610 S.E.2d 1, 4 (2004) (quoting Syl. pt. 2, State ex rel. Strickland v. Melton, 152 W.Va. 500, 165 S.E.2d 90 (1968)). It has been said that “probation has no correlation to the underlying criminal sentence[.]” State v. Tanner, 229 W.Va. 138, 141 n. 7, 727 S.E.2d 814, 817, n.7 (2012) (quoting Syl. pt. 1, Jett v. Leverette, 162 W.Va. 140, 146, 247 S.E.2d 469, 472 (1978)).

The circuit court’s decision was consistent with State v. Workman, No. 13- 0133, 2013 WL 6183989 (W. Va. Nov. 26, 2013) (Memorandum Decision). In Workman the defendant appealed a magistrate court sentence of unsupervised probation to circuit court. After retrial in circuit court, the circuit court imposed a sentence of supervised probation. On appeal to this Court, the defendant in Workman argued that Eden prohibited imposition of the greater sentence of supervised probation. We rejected the argument as follows:

We have previously held that “[p]robation is not a sentence for a crime but instead is an act of grace upon the part of the State to a person who has been convicted of a crime.” State v. Jones, 216 W.Va. 666, 669, 610 S.E.2d 1, 4 (2004) (quoting Syl. Pt. 2, State ex rel. Strickland v. Melton, 152 W.Va. 500, 165 S.E.2d 90 (1968)). Further, “probation has no correlation to the underlying criminal sentence....” State v. Tanner, 229 W.Va. 138, 141 fn. 7, 727 S.E.2d 814, 817 (2012) (quoting Syl. Pt. 1, Jett v. Leverette, 162 W.Va. 140, 146, 247 S.E.2d 469, 472 (1978)). In the instant matter, both the magistrate court and the circuit court sentenced petitioner to one year in jail for the offense of domestic battery. As such, it is clear that petitioner did not receive a harsher sentence on appeal, the circuit court's imposition of supervised probation notwithstanding.

Therefore, no violation of petitioner’s due process rights occurred below.

Workman, No. 13-0133, 2013 WL 6183989, at *2.

The majority opinion has taken an unjustified drastic measure to get around Workman and the law regarding probation, by overruling Workman and carving out an exception when the issue of resentencing to probation is raised in the context of Eden. I cannot accept this distinction. Probation is either part of a sentence or it is not. It cannot be both. The majority’s hybrid treatment of probation has no basis in law and simply creates bad law. 4

The legally sound way to resolve the issue raised in this case was to overrule the badly conceived precedent set by Eden and its progeny. Eden is inconsistent with federal constitutional law and was wrongfully attached to state constitutional law. The United States Supreme Court has long held that under federal constitutional law there is “no absolute constitutional bar to the imposition of a more severe sentence on reconviction after the defendant’s successful appeal of the original judgment of conviction.” United States v. DiFrancesco, 449 U.S. 117, 135, 101 S. Ct. 426, 436, 66 L. Ed. 2d 328 (1980). Instead, the Supreme Court has held that a defendant may be sentenced to a harsher punishment after a retrial, so long as vindictiveness did not play a role in causing the harsher sentence. The vindictiveness principle was announced in North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989). 5 The decision in Pearce addressed the matter as follows:

We hold … that neither the double jeopardy provision nor the Equal Protection Clause imposes an absolute bar to a more severe sentence upon reconviction. A trial judge is not constitutionally precluded, in other words, from imposing a new sentence, whether greater or less than the original sentence, in the light of events subsequent to the first trial that may have thrown new light upon the defendant’s life, health, habits, conduct, and mental and moral propensities. *** Due process of law … 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….

In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. (Internal quotation marks and citations omitted.) 6

Pearce, 395 U.S. at 723–26, 89 S. Ct. 2079-81.

The majority opinion has disingenuously revisited Pearce by neglecting to provide any analysis or discussion of how other jurisdictions apply Pearce. All jurisdictions that I was able to find that have addressed the issue, except West Virginia, apply Pearce’s vindictiveness standard to an increased sentence after retrial. See, e.g., Sampson v. State, 441 P.3d 1089 (Nev. 2019) (applying vindictiveness standard to increased sentence); State v. Brown, 193 Wash. 2d 280, 440 P.3d 962 (2019) (same); State v. Brown, 309 Kan. 369, 435 P.3d 546 (2019) (same); State v. Oliveira, 195 A.3d 1088 (R.I. 2018) (same); People v. Kennard, 160 A.D.3d 1378, N.Y.S.3d 309 (2018) (same); State v. Pena, 2018 WL 1915532 (N.J. Super. Ct. 2018) (same); Sullivan v. State, 2018 WL 1224529 (Tex. App. 2018) (same); Austin v. State, 239 So. 3d 93 (Fla. App. 2018) (same); State v. Robledo, 282 Or. App. 96, 386 P.3d 136 (2016) (same); State v. Price, 60 N.E.3d 481 (Ohio 2016) (same); People v. Johnson, 363 P.3d 169 (Colo. 2015) (same); State v. Sharp, 2014 WL 3744620 (Tenn. Crim. App. 2014) (same); Arnold v. State, 324 Ga. App. 58, 749 S.E.2d 245 (2013) (same); State v. Grist, 152 Idaho 786, 275 P.3d 12 (2012) (same); Butler v. State, 2011 Ark. 435, 384 S.W.3d 526 (2011) (same); State v. Partain, 349 Or. 10, 239 P.3d 232 (2010) (same); State v. Kelson, 40 So. 3d 1194 (La.App. 2010) (same); State v. Rowley, 2010 S.D. 41, 783 N.W.2d 50 (2010) (same); State v. Hazelton, 186 Vt. 342, 987 A.2d 915 (2009) (same); State v. Mitchell, 670 N.W.2d 416 (Iowa 2003) (same); People v. Colon, 250 Mich. App. 59, 644 N.W.2d 790 (2002) (same); State v. Wilson, 252 Neb. 637, 564 N.W.2d 241 (1997) (same); Commonwealth v. Campion, 449 Pa. Super. 9, 672 A.2d 1328 (1996) (same); Commonwealth v. Hyatt, 419 Mass. 815, 647 N.E.2d 1168 (1995) (same); State v. Goding, 128 N.H. 267, 513 A.2d 325 (1986) (same); Ross v. State, 480 So. 2d 1157 (Miss. 1985) (same); State v. Allen, 446 So. 2d 1200 (La. 1984) (same).

In light of the above authorities it is clear that Eden is unsound law without a constitutional or other legal basis. The “vindictiveness” standard should be the only limitation on a trial judge’s discretion to impose a harsher sentence on a defendant convicted of the same offense after a retrial.

In view of the foregoing, I dissent. I am authorized to state that Chief Justice Armstead joins in this dissent.