                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


State of West Virginia,                                                              FILED
Plaintiff Below, Respondent                                                       July 30, 2020
                                                                                EDYTHE NASH GAISER, CLERK
vs.) No. 19-0206 (Mineral County 15-F-86)                                       SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA


Glenn B.,
Defendant Below, Petitioner



                               MEMORANDUM DECISION


        Petitioner Glenn B., by counsel Jeremy B. Cooper, appeals the Circuit Court of Mineral
County’s November 28, 2018, resentencing order and February 7, 2019, order correcting
petitioner’s sentence.1 The State of West Virginia, by counsel Mary Beth Niday, filed a response
to which petitioner submitted a reply.

       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 is appropriate under Rule 21 of the Rules of Appellate Procedure.

       On May 4, 2015, a Mineral County Grand Jury returned an indictment charging petitioner
with multiple counts of sexual assault, incest, and sexual abuse inflicted upon his three step-
daughters. Petitioner pled guilty to three counts of the felony offense of sexual abuse by a parent,
guardian, or custodian on October 4, 2016. Pursuant to a plea agreement, the State agreed to
dismiss the remaining charges and “remain silent on a recommendation at sentencing.”

       Despite its agreement to remain silent, the State recommended the imposition of
consecutive sentences during a February 13, 2017, sentencing hearing. The following exchange
occurred at that hearing:

       MR. PANCAKE [Prosecuting Attorney]: And the State is of the opinion that Mr.—

       1
         Consistent with our long-standing practice in cases with sensitive facts, we use
initials where necessary to protect the identities of those involved. See In re K.H., 235 W. Va. 254,
773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993); State v. Edward
Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
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       MR. ROZAS [Petitioner’s Attorney]: Objection.
       THE COURT [Judge Nelson]: About?
       MR. ROZAS: With the plea agreement, he’s not allowed to express an opinion,
       Your Honor. He was going to remain silent at sentencing.
       MR. PANCAKE: But—
       THE COURT: Well, he can comment on what he said. He’s not making any
       recommendations.
       MR. PANCAKE: Right. I’m just—
       MR. ROZAS: Okay, Your Honor, as long as he doesn’t make a recommendation
       as [to] whether he thinks probation is appropriate or not or what the sentence should
       be.
       THE COURT: All right. Do you have anything else, Mr. Pancake[?]
       MR. PANCAKE: Well, just a couple comments, Judge. In the [c]ourt system, we
       see heinous cases. And they unfortunately occur, and they occur an often—a quite
       often amount for those that are in the legal system. I do believe that this is one of
       the more heinous cases that we’ve come across in recent years, Judge.
       The [c]ourt has heard comments from the victims in this case—which I won’t
       comment any further on those. I will not make any further comments on the case.
       What the State would recommend, though, however, Judge, is based upon what has
       occurred—
       MR. ROZAS: Objection.
       THE COURT: I have an objection. Go ahead, Mr. Rozas. You said you had some
       arguments.
       MR. ROZAS: Thank you.
       THE COURT: You agreed to stand silent, I’ll listen to his argument.
       MR. PANCAKE: I was just going to say—recommend that they run consecutive
       and not concurrent.
       MR. ROZAS: Objection, Your Honor.
       THE COURT: Okay, I’m not listening to what the State said there.
       MR. ROZAS: Thank you, Your Honor.

         On February 22, 2017, the circuit court imposed consecutive sentences of ten to twenty
years for each count and remarked upon “a lot of rumors and speculations” about things occurring
“up in B[-]ville.”2 Petitioner appealed, contending that the State breached the plea agreement by
failing to remain silent at sentencing and that he should have the right to elect between withdrawing
his guilty plea or having a new trial judge sentence him. He further asserted that the circuit court’s
comments regarding rumors and speculation constituted reversible error. On appeal, this Court
vacated the original sentencing order and remanded the matter to the circuit court on the issue of
the breach of the plea agreement. State v. Glenn B., 240 W. Va. 657, 815 S.E.2d 28 (2018) (“Glenn
B. I”).




       2
        The original circuit court judge used petitioner’s last name, adding “ville” on the end. The
reference is abbreviated here due to the sensitive facts of this matter.


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         Upon remand, Judge Carl was specially assigned to the case by order of this Court. 3 The
circuit court conducted a resentencing hearing, during which it informed the parties that it had
reviewed the presentence investigation report (“PSI”) completed by the circuit court’s probation
officer and the updated adult sex offender evaluation by Dr. Fremouw. Petitioner’s counsel pointed
out a minor objection/correction to the PSI, which the court noted and incorporated into the record.
The probation officer also pointed out that Dr. Fremouw’s evaluation contained an incorrect
number of years of petitioner’s sentence, which was also noted by the court and incorporated into
the record. The parties advised that there were no further objections to the reports. The circuit court
also heard testimony from three witnesses on petitioner’s behalf; testimony from one of the
victims; and testimony from the victims’ mother, petitioner’s former wife. The court informed
petitioner of his right of allocution, and petitioner remained silent. Petitioner’s counsel requested
alternative sentencing, home incarceration, and supervised probation. The State informed the court
that it stood by the plea agreement and would remain silent.

       In its November 28, 2018, resentencing order, the circuit court sentenced petitioner to ten
to twenty years of incarceration for each of the three felony offenses of sexual abuse by a parent,
guardian, or custodian, and ordered the sentences to run consecutively. It also denied petitioner’s
motion for an alternative sentence and ordered petitioner to register as a sex offender for the
duration of his lifetime.4

         Thereafter, on February 7, 2019, the circuit court entered an agreed order correcting
petitioner’s sentence based upon petitioner’s Rule 35(a) motion. In that order, the circuit court
found that petitioner was entitled to be sentenced to no more than the maximum sentence in effect
at the time of the commission of each offense. Therefore, petitioner “should be sentenced to no
more than 5-15 years on Count 2, 5-10 years on Count 14, and 5-15 years on Count 21.”5 It went
on to find that, “[a]pplying the correct statutory sentences as they existed at the time of the
commission of the offenses to which [petitioner] pled guilty, the maximum consecutive sentence
is 15-40 years of incarceration.” It modified its November 28, 2018, sentencing order accordingly
and imposed the following sentences: five to fifteen years of incarceration on Count 2; five to ten
years of incarceration on Count 14; and five to fifteen years of incarceration on Count 21, to run
consecutively, for a total effective sentence of fifteen to forty years of incarceration. However, all
other provisions of the November 28, 2018, resentencing order were to remain in full force and
effect unless specifically modified by the February 7, 2019, order. Petitioner appeals from the


       3
         In Glenn B. I, this Court also stated that “[g]iven the prosecutor’s unyielding and improper
persistence in the prior sentencing hearing, it would be inappropriate to permit that prosecutor to
participate in the sentencing hearing upon remand. Consequently, another prosecutor should
manage this sentencing matter upon remand.” Therefore, a different prosecutor appeared in the
resentencing proceedings.
       4
         The circuit court found that petitioner is not subject to a term of extended supervision,
under West Virginia Code § 62-12-26, because the crimes were committed prior to the enactment
of that statute.
       5
        Count 2 alleged violations occurring from 1987 to 1997; Count 14 alleged violations
occurring from 1987 to 1989; and Count 21 alleged violations occurring from 1989 to 1992.
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resentencing order and order correcting petitioner’s sentence.

       Our standard of review of an order correcting a sentence under Rule 35 has been stated as
follows:

                “In 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).

State v. Tex B.S., 236 W. Va. 261, 264, 778 S.E.2d 710, 713 (2015).6 In addition, 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).

         On appeal, petitioner asserts a single assignment of error: Petitioner contends the circuit
court plainly erred by sentencing petitioner based upon impermissible sentencing factors, as the
sentencing record on remand continued to be tainted by the prosecuting attorney’s improper
recommendation and Judge Nelson’s citation to rumors and innuendo. Petitioner admits that his
counsel failed to object when Judge Carl informed the parties that he had considered the transcript
of the first sentencing hearing. However, he argues that the circuit court’s review of that transcript
constitutes plain error. With regard to the plain error doctrine, this Court previously established
the following standards:

               7. To trigger application of the “plain error” doctrine, there must be (1) an
       error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects
       the fairness, integrity, or public reputation of the judicial proceedings.

               8. Under the “plain error” doctrine, “waiver” of error must be distinguished
       from “forfeiture” of a right. A deviation from a rule of law is error unless there is a
       waiver. When there has been a knowing and intentional relinquishment or
       abandonment of a known right, there is no error and the inquiry as to the effect of
       a deviation from the rule of law need not be determined. By contrast, mere
       forfeiture of a right—the failure to make timely assertion of the right—does not
       extinguish the error. In such a circumstance, it is necessary to continue the inquiry
       and to determine whether the error is “plain.” To be “plain,” the error must be
       “clear” or “obvious.”

               9. Assuming that an error is “plain,” the inquiry must proceed to its last step

       6
         Rule 35(a) of the West Virginia Rules of Criminal Procedure provides that “[t]he court
may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner
within the time period provided herein for the reduction of sentence.”
                                                  4
        and a determination made as to whether it affects the substantial rights of the
        defendant. To affect substantial rights means the error was prejudicial. It must have
        affected the outcome of the proceedings in the circuit court, and the defendant
        rather than the prosecutor bears the burden of persuasion with respect to prejudice.

Syl. Pts. 7-9, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).

        Petitioner contends that he satisfied the criteria necessary to establish plain error because
the error he alleges is a continuation of the error that led to the first reversal in this case. He argues
that while this Court declined to address the propriety of Judge Nelson’s alleged “inappropriate
reliance upon innuendos and rumors” in Glenn B. I, if this Court had considered the

        issue, it would undoubtedly have found erroneous Judge Nelson’s consideration of
        matters stemming from twenty-eight years of rumors and speculations, given that
        Judge Nelson’s disclosure of his knowledge of those rumors was not made part of
        the sentencing record in the manner required by Rule 32 of the West Virginia Rules
        of Criminal Procedure, and came after [p]etitioner had any opportunity to object to
        or contr[o]vert the matters contained in the rumors.

Petitioner asserts that the exact same tainted information that led this Court to remove Judge
Nelson was explicitly used by the newly-appointed judge in the second hearing. However, he states
that he “does not believe that the newly-assigned judge engaged in any misconduct . . . .”

        As this Court recently reiterated,

                “[i]n clear terms, the plain error rule should be exercised only to avoid a
        miscarriage of justice. The discretionary authority of this Court invoked by lesser
        errors should be exercised sparingly and should be reserved for the correction of
        those few errors that seriously affect the fairness, integrity, or public reputation of
        the judicial proceedings.” Syllabus point 7, in part, State v. LaRock, 196 W. Va.
        294, 470 S.E.2d 613 (1996).

Syl. Pt. 4, State v. Sites, 241 W. Va. 430, 825 S.E.2d 758 (2019). Importantly, petitioner fails to
point to any comments by the circuit court in the proceedings following this Court’s issuance of
Glenn B. I that suggest that its review of the transcript from the first sentencing proceeding affected
petitioner’s substantial rights or seriously affected the fairness, integrity, or public reputation of
the later proceedings.

        We are also mindful of our finding that “[i]n the realm of nonconstitutional error, the
appropriate test for harmlessness is whether we can say with fair assurance, after stripping the
erroneous evidence from the whole, that the remaining evidence independently was sufficient to
support the verdict and that the judgment was not substantially swayed by the error.” Syl. Pt. 13,
State v. Bradshaw, 193 W. Va. 519, 457 S.E.2d 456 (1995). During the resentencing hearing, the
circuit court explained that consecutive sentences were warranted based upon the gravity of the
offenses, the effect of the offenses upon the victims, and the best interests of the community. The
circuit court also noted that petitioner’s conduct “went on for years,” that one of the victims was

                                                    5
unable to testify “because of the trauma she has undergone because of [petitioner,]” and that
petitioner “took things from [the victims] as young children who trusted [him].” Therefore, we
find that petitioner has failed to show that the circuit court’s review of the transcript of the original
sentencing hearing constituted plain error.

        For the foregoing reasons, we affirm.

                                                                                              Affirmed.

ISSUED: July 30, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison


NOT PARTICIPATING:

Justice Margaret L. Workman




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