State v. Byers

875 S.E.2d 306

STATE of West Virginia, Plaintiff Below, Respondent,

v.Scotty Joseph BYERS, Defendant Below, Petitioner.

No. 20-0706

Supreme Court of Appeals of West Virginia.

Submitted: May 3, 2022

Filed: June 14, 2022

Graham B. Platz, Esq., Crystal L. Walden, Esq., Public Defender Services, Charleston, West Virginia, Attorneys for the Petitioner.

Patrick Morrisey, Esq., Attorney General, Andrea Nease Proper, Esq., Assistant Attorney General, Scott E. Johnson, Esq., Assistant Attorney General, Charleston, West Virginia, Attorneys for the Respondent.

Bunn, Justice:

Petitioner Scotty Joseph Byers ("Mr. Byers") appeals from the August 14, 2020 sentencing order of the Circuit Court of Wood County. On June 4, 2020, the circuit court held a sentencing hearing, with Mr. Byers and his counsel participating by video conference. During the hearing, Mr. Byers was sentenced on his convictions, pursuant to a plea agreement, of three counts of failure to register as a sexual offender and one count of fleeing from an officer. At the outset of the hearing, Mr. Byers, through counsel, informed the circuit court that he objected to appearing by video conference and wished to appear at his sentencing hearing in person. The circuit court noted the objection, overruled it, and proceeded to conduct the sentencing hearing with Mr. Byers and his counsel participating by video conference. On appeal, Mr. Byers contends that the circuit court erred in failing to allow him to be physically present for his sentencing hearing in violation of his right to be present at the imposition of his sentence pursuant to Rule 43 of the West Virginia Rules of Criminal Procedure, West Virginia Code § 62-3-2 (1923), and both the West Virginia and United States Constitutions.

Upon careful consideration of the briefs submitted on appeal, the appendix record, the parties’ oral arguments, and the applicable legal authority, we find that Mr. Byers's right to be present at the imposition of his sentence was violated, and, under the circumstances of this case, this violation was not harmless error. Consequently, this Court vacates the circuit court's August 14, 2020 sentencing order and remands this matter to the circuit court to hold a sentencing hearing consistent with the principles set forth herein.

I.FACTUAL AND PROCEDURAL HISTORY

In May 2019, a Wood County grand jury indicted Mr. Byers on two counts of failure to register as a sexual offender,¹ second offense, and one count of failure to appear² as required for a preliminary hearing in Wood County Magistrate Court.³ In February 2020, Respondent State of West Virginia ("the State") filed an information charging Mr. Byers with an additional count of failure to register as a sexual offender, first offense, and one count of fleeing from an officer on foot.⁴ The State and Mr. Byers then entered into a plea agreement whereby Mr. Byers pleaded guilty to (1) two counts of failure to register as a sexual offender, first offense, as lesser included offenses to counts one and three of the indictment; (2) one count of failure to register as a sexual offender, first offense, as charged in the information; and (3) one count of fleeing from an officer on foot as charged in the information. In exchange, the State agreed to (1) dismiss one count of failure to appear as contained in the indictment, (2) not prosecute Mr. Byers for any additional failure to register offenses occurring before the entry of the plea, and (3) not prosecute Mr. Byers for a pending but unrelated charge of possession with intent to distribute. Mr. Byers further agreed to pay restitution as determined by the circuit court and to be forthright and truthful regarding "all inquiries made pursuant to [the] agreement." There were no agreements as to sentencing. The circuit court held a change of plea hearing wherein it accepted Mr. Byers's guilty pleas as outlined above. At the conclusion of the hearing, Mr. Byers moved the circuit court to grant him alternative sentencing. The court took the motion under advisement.

Following the acceptance of Mr. Byers's pleas, the circuit court scheduled his sentencing hearing for April 22, 2020; however, the sentencing hearing was postponed due to the COVID-19 global pandemic. On May 6, 2020, the circuit court entered an order relying on the judicial emergency orders entered by this Court,⁵ and held that "in accordance with the Constitution of West Virginia, rules of procedure, the West Virginia Code, applicable case law precedent[,] and the [administrative orders]" the matter and any related hearings were continued to the May 2020 term of court. The circuit court further ordered that "this matter will return for scheduling purposes upon the lifting of the West Virginia Supreme Court declaration of Judicial Emergency at a date and time to be determined."

After the judicial emergency was lifted, the sentencing hearing was rescheduled for June 4, 2020.⁶ At the June 4, 2020 sentencing hearing, the circuit court noted for the record the following appearances: Mr. Byers appeared by video conference from the North Central Regional Jail; Mr. Byers's counsel appeared by video conference, from a different location than Mr. Byers; and the circuit court judge, the assistant prosecuting attorney, and a Wood County adult probation officer were physically present in the courtroom.⁷ The circuit court advised Mr. Byers that, upon his request, it would afford him the opportunity to speak with his attorney privately during the hearing by disconnecting all other parties.⁸ Mr. Byers, through counsel, objected to appearing by video conference. The following exchange occurred:

[MR. BYERS'S COUNSEL]: Your Honor, to start off, first I would just like to have noted for the record Mr. Byers's objection to appearing by video. He obviously wanted to appear in person, but as the [c]ourt is aware, because of the pandemic situation, many hearings, including this one, are being done by video. We wanted that noted for the record.

THE COURT: The objection is noted for the record. The [c]ourt believes that under the system that has been made available by the [S]upreme [C]ourt which is the Skype For Business that we are utilizing today, the [c]ourt is affording [Mr. Byers] the ability to speak privately with his [c]ounsel at any time which is needed.

The [c]ourt has had that occur in previous cases and it has worked quite well and I am comfortable proceeding by video conference. So[,] the objection is noted, but overruled.

Without further explanation for its ruling, the circuit court proceeded with the sentencing hearing.

Mr. Byers's counsel was given the opportunity to give a brief statement to the court. Counsel focused on Mr. Byers's "great interest" in a substance abuse program, stemming from his struggles with drug and alcohol abuse over a significant period, which played a part in his prior offenses. In support for his previous motion for alternative sentencing, including probation or home confinement, Mr. Byers's counsel highlighted that Mr. Byers recently had been affected by several events motivating him to remain drug and alcohol free, and emphasized that Mr. Byers would follow any conditions mandated by the court. Mr. Byers also testified on his own behalf and expressed remorse for his actions. He voiced many of the same sentiments as his counsel regarding his drug and alcohol abuse and requested placement at a rehabilitation facility for treatment.

The State informed the court that it objected to probation or any other alternative sentencing. In support of its position, the State argued that Mr. Byers was already receiving leniency because two of the counts for failure to register had been reduced to lesser included offenses. The State also asserted that Mr. Byers had a history of criminal conduct and that his previous probation violations suggested that he would neither comply with probation nor refrain from engaging in additional criminal conduct. The State further requested that the circuit court run each of Mr. Byers's sentences consecutively.

After considering the arguments of both parties, the circuit court sentenced Mr. Byers as follows: for each count of failing to register as a sexual offender, first offense, not less than one nor more than five years of incarceration and for one count of fleeing from an officer, 216 days of incarceration.⁹ The circuit court ordered the sentences for one count of failure to register as a sexual offender and one count of fleeing from an officer to run concurrently with a credit of 216 days. The remainder of the sentences were ordered to run consecutively. On August 14, 2020, the circuit court entered a sentencing order memorializing its decision.¹⁰ This appeal followed.

II.STANDARD OF REVIEW

This Court has previously articulated the general standard of review that applies to our consideration of sentencing orders on appeal: "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). Here, Mr. Byers asserts that the circuit court violated his right to be present at his sentencing hearing. Because this issue involves statutory, constitutional, and rules analyses, our review is plenary. See Phillip Leon M. v. Greenbrier Cnty. Bd. of Educ. , 199 W. Va. 400, 404, 484 S.E.2d 909, 913 (1996) ("Because interpretations of the West Virginia Constitution, along with interpretations of statutes and rules, are primarily questions of law, we apply a de novo review[.]"); Syl. pt. 1, Chrystal R.M. v. Charlie A.L. , 194 W. Va. 138, 459 S.E.2d 415 (1995) ("Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review."). With these governing standards in mind, we will consider the parties’ arguments.

III.DISCUSSION

On appeal, Mr. Byers...