          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA 


                                   January 2018 Term
                                                                            FILED
                                                                          April 5, 2018
                                      No. 16-1128                           released at 3:00 p.m.
                                                                        EDYTHE NASH GAISER, CLERK

                                                                        SUPREME COURT OF APPEALS

                                                                             OF WEST VIRGINIA




                              STATE OF WEST VIRGINIA,
                               Plaintiff Below, Respondent,

                                           v.

                              MICHAEL KEITH ALLMAN,
                               Defendant Below, Petitioner.



                    Appeal from the Circuit Court of Wood County 

                           The Honorable Jeffrey B. Reed 

                                 Case No. 15-F-179 


                                      AFFIRMED 



                               Submitted: March 13, 2018
                                  Filed: April 5, 2018

Richard D. Smith, Jr., Esq.                            Patrick Morrisey, Esq.
Parkersburg, West Virginia                             Attorney General
Attorney for Petitioner                                Robert Hogan, Esq.
                                                       Assistant Attorney General
                                                       Charleston, West Virginia
                                                       Attorneys for Respondent



CHIEF JUSTICE WORKMAN delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT 



              1.     “In reviewing challenges to findings and rulings made by a circuit

court, we apply a two-pronged deferential standard of review. We review the rulings of the

circuit court concerning a new trial and its conclusion as to the existence of reversible error

under an abuse of discretion standard, and we review the circuit court’s underlying factual

findings under a clearly erroneous standard. Questions of law are subject to a de novo

review.” Syl. Pt. 3, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000).



              2.     “‘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.’ Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415

(1995).” Syl. Pt. 1, State v. Paynter, 206 W. Va. 521, 526 S.E.2d 43 (1999).



              3.     “The Supreme Court of Appeals reviews sentencing orders, including

orders of restitution made in connection with a defendant’s sentencing, under a deferential

abuse of discretion standard, unless the order violates statutory or constitutional

commands.” Syl. Pt. 1, State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997).



              4.     “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
              5.     An individual charged with a felony who escapes from lawful custody

or confinement as prescribed in West Virginia Code § 61-5-10 (2000) (Repl. Vol. 2014)

may be convicted of the offense of felony escape irrespective of the ultimate outcome of

the charge for which he or she was in lawful custody or confinement.



              6.     “‘A new trial will not be granted on the ground of newly-discovered

evidence unless the case comes within the following rules: (1) The evidence must appear

to have been discovered since the trial, and, from the affidavit of the new witness, what

such evidence will be, or its absence satisfactorily explained. (2) It must appear from facts

stated in his affidavit that plaintiff was diligent in ascertaining and securing his evidence,

and that the new evidence is such that due diligence would not have secured it before the

verdict. (3) Such evidence must be new and material, and not merely cumulative; and

cumulative evidence is additional evidence of the same kind to the same point. (4) The

evidence must be such as ought to produce an opposite result at a second trial on the merits.

(5) And the new trial will generally be refused when the sole object of the new evidence is

to discredit or impeach a witness on the opposite side.’ Syllabus Point 1, Halstead v.

Horton, 38 W.Va. 727, 18 S.E. 953 (1894).” Syl., State v. Frazier, 162 W. Va. 935, 253

S.E.2d 534 (1979).



              7.     “A litigant may not silently acquiesce to an alleged error, or actively

contribute to such error, and then raise that error as a reason for reversal on appeal.” Syl.




                                              ii
Pt. 1, Maples v. W. Virginia Dep’t of Commerce, Div. of Parks & Recreation, 197 W. Va.


318, 475 S.E.2d 410 (1996). 





                                          iii 

Workman, C. J.:

              This is an appeal from the November 7, 2016, order denying Michael Keith

Allman’s (hereinafter “petitioner”) motion for a new trial on his convictions of felony

escape, destruction of property, and petit larceny and resultant November 9, 2016,

sentencing order. Petitioner argues that his sentence on the felony escape conviction is

“disproportionate” to the offense because he was ultimately found guilty only of a

misdemeanor, rather than a felony, on the underlying charge from which he escaped.

Petitioner further argues as to both the felony escape and related destruction of property

convictions that the circuit court erred in failing to grant a new trial on the basis of newly-

discovered, exculpatory evidence. Finally, as to the underlying petit larceny conviction,

petitioner asserts that the circuit court erred in permitting the State to elect to prosecute the

felony escape and destruction of property charges prior to the underlying grand larceny

charge.



              Upon careful review of the briefs, the appendix record, the arguments of the

parties, and the applicable legal authority, we find that the circuit court committed no

reversible error and therefore affirm petitioner’s conviction and the circuit court’s denial

of a new trial.



                      I. FACTS AND PROCEDURAL HISTORY

              Petitioner was charged with grand larceny after he was discovered on

surveillance video removing a purse from a vehicle in the parking lot of a laundromat. The

                                               1

purse allegedly contained $225 in cash, a ring valued at $1,992, two additional rings, a

checkbook, and other miscellaneous items. Petitioner was placed on home confinement as

a condition of his bond; he was ordered while on home confinement to remain at his

residence, not consume or have in his presence any illegal substance or alcohol, and to

wear a GPS monitoring bracelet.



              While he was on home confinement, the Wood County Sheriff’s Office

received an electronic alert that petitioner had cut his monitoring bracelet strap. Upon

investigation, petitioner was discovered several blocks from his residence and his cut

bracelet was found on the mantle at his home. Upon being apprehended and transported

to the Wood County Holding Center, petitioner stated that he had “taken some nerve pills

and heroin earlier.” He was taken to Camden-Clark Medical Center for medical clearance

where he again indicated that he had “done heroin before he went to bed last night and

taken some klonopin that was not prescribed to him.”



              Thereafter, petitioner was indicted in Wood County on one count of grand

larceny arising out of the laundromat theft, one count of destruction of property as a result

of destroying his monitoring bracelet, and felony escape. In advance of trial, petitioner

moved to sever the grand larceny charge from the escape and destruction of property

charges. In his motion, petitioner asked the circuit court to “sever the charges as requested

in this motion and require the State of West Virginia to elect which particular count[s] that

the State wishes to try in the first trial.” The circuit court granted the motion and the State

                                              2

elected to try the escape and destruction of property charges first. Petitioner was thereafter

convicted of escape and destruction of property.



              Subsequent to the first trial, petitioner moved for a new trial on the basis that

new evidence had been discovered.         Specifically, petitioner argued that his counsel

obtained his medical records from Camden-Clark Medical Center demonstrating that he

was intoxicated on the day of the escape and destruction of property. Petitioner argued this

would tend to negate specific intent and therefore required a new trial. The circuit court

denied the motion, finding that the evidence was not new and was well-known to petitioner

and his counsel at the time of trial. The circuit court further found that escape and

destruction of property are general intent crimes, neither of which is susceptible to an

intoxication defense.



              Petitioner was then tried on the grand larceny charge. However, the jury

returned a verdict of guilty as to petit larceny, a lesser-included charge and misdemeanor.

Petitioner was then sentenced to one year on the petit larceny, three years for escape, and

six months for destruction of property. The misdemeanor petit larceny and destruction of

property sentences were ordered to be served concurrently, with the escape sentence to be

served consecutively thereto. This appeal followed.




                                              3

                            II. STANDARD OF REVIEW

             Generally,

                    [i]n reviewing challenges to findings and rulings made
             by a circuit court, we apply a two-pronged deferential standard
             of review. We review the rulings of the circuit court concerning
             a new trial and its conclusion as to the existence of reversible
             error under an abuse of discretion standard, and we review the
             circuit court’s underlying factual findings under a clearly
             erroneous standard. Questions of law are subject to a de novo
             review.

Syl. Pt. 3, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000). More specifically,

“‘[w]here 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.’ Syllabus

point 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).” Syl. Pt.

1, State v. Paynter, 206 W. Va. 521, 526 S.E.2d 43 (1999). Finally, “[t]he Supreme Court

of Appeals reviews sentencing orders, including orders of restitution made in connection

with a defendant’s sentencing, under a deferential abuse of discretion standard, unless the

order violates statutory or constitutional commands.” Syl. Pt. 1, State v. Lucas, 201 W.

Va. 271, 496 S.E.2d 221 (1997). With these standards in mind, we proceed to petitioner’s

assignments of error.



                                   III. DISCUSSION

             Petitioner asserts three assignments of error.     First, petitioner makes a

constitutional challenge to his felony escape sentence contending that it was

“disproportionate” inasmuch as he was ultimately only convicted of a misdemeanor on the


                                            4

underlying charge from which he escaped. Secondly, as to the escape and destruction of

property charges, petitioner asserts that he is entitled to a new trial on the basis of newly

discovered evidence, i.e. medical records demonstrating his intoxication at the time of the

escape. Finally, petitioner asserts that the circuit court erred in permitting the State to elect

to try the escape and destruction of property charges first, rather than the underlying grand

larceny offense.



A.     FELONY ESCAPE UPON MISDEMEANOR CONVICTION ON UNDERLYING OFFENSE

              We begin with petitioner’s most substantive assignment of error, which

presents an issue of first impression: whether an individual can be convicted of felony

escape when he or she is ultimately convicted only of a misdemeanor on the charge from

which he or she was “escaping.”



              We note first that although petitioner frames this challenge as one of

constitutionality, i.e. a disproportionate sentence in violation of Article III, Section 5 of the

West Virginia Constitution, it is plain that petitioner is attacking the conviction on its

merits. Petitioner alleges nothing substantively “disproportionate” about the sentence he

received under the statute. The statute provides for one to five years in the penitentiary

and petitioner received a sentence of three years on this charge. “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). Clearly, petitioner’s sentence was within statutory limits and petitioner


                                               5

identifies no “impermissible factor” utilized by the circuit court. Despite the absence of

constitutional magnitude as framed by petitioner, however, it is clear that he has raised an

issue of statutory construction requiring this Court’s de novo review.



              Accordingly, we begin with an analysis of our escape statute. West Virginia

Code § 61-5-10 (2000) provides:

                      Whoever escapes or attempts to escape by any means
              from the custody of a county sheriff, the director of the regional
              jail authority, an authorized representative of said persons, a
              law-enforcement officer, probation officer, employee of the
              division of corrections, court bailiff, or from any institution,
              facility, or any alternative sentence confinement, by which he
              or she is lawfully confined, if the custody or confinement is by
              virtue of a charge or conviction for a felony, is guilty of a felony
              and, upon conviction thereof, shall be confined in a
              correctional facility for not more than five years; and if the
              custody or confinement is by virtue of a charge or conviction
              for a misdemeanor, is guilty of a misdemeanor and, upon
              conviction thereof, he or she shall be confined in a county or
              regional jail for not more than one year.

(emphasis added).1 Petitioner argues that because he was ultimately convicted only of a

misdemeanor, he cannot be guilty of having escaped from custody or confinement arising

out of a felony. Respondent counters that the plain language of the statute provides that

one can be guilty of felony escape if he or she escapes from custody or confinement arising

from a “charge or conviction for a felony[.]” Id. (emphasis added). Indisputably,

petitioner was on home confinement as the result of a felony charge. Respondent urges



       1
        The federal escape statute is worded similarly, providing for a felony charge of
escape “if the custody or confinement is by virtue of an arrest on a charge of felony, or
conviction of any offense . . . .” 18 U.S.C.A. § 751 (1994) (emphasis added).
                                               6

that it is of no moment, therefore, that he was not ultimately convicted of a felony under

the wording of the statute. Respondent further notes that other courts have likewise held

that where a statute provides for escape charges based upon pre-conviction detention,

courts must look to the nature of the charges at the time of the escape.



              In support of his position, petitioner cites to two purportedly analogous cases

in which this Court held that if a conviction underlying an escape charge is ultimately found

to be void or voidable on appeal, a conviction of escape will not lie. In Syllabus Point 1 of

State v. Pishner, 73 W. Va. 744, 81 S.E. 1046 (1914), the Court held:

                     A prisoner who escapes from jail by force and violence,
              pending the determination of a writ of error to a judgment of
              conviction for a felony resulting in a reversal thereof and a
              discharge of the prisoner, does not thereby violate Sec. 11, Ch.
              147, serial section 5239, Code 1913.

Over fifty years later, this Court reiterated this holding in State ex rel. Robison v. Boles,

149 W. Va. 516, 142 S.E.2d 55 (1965) finding that “‘[t]he escape from custody, of a person

confined in the penitentiary under a void judgment and sentence, does not constitute a

crime and a conviction therefore is likewise void.’” (quoting Syl. Pt. 3, State ex rel.

McGilton v. Adams, 143 W. Va. 325, 102 S.E.2d 145 (1958)).2 Petitioner argues that he


       2
         We observe that Pishner was a 3-2 decision subject to a strong dissent astutely
noting that this holding effectively stood for the proposition that “one erroneously
convicted of a felony and sentenced therefor, though lawfully imprisoned by the judgment
of a court of competent jurisdiction, may break jail without violating the [law].” Id. at 748,
81 S.E. at 1048 (Robinson, J., dissenting). As such, the opinion “tells one convicted and
sentenced for felony that he may be his own judge of the soundness of his conviction and
sentence and take chances on its being reversed as against the penitentiary penalty for jail

                                              7

merely violated a condition of his pre-trial bond by removing his electronic bracelet and

leaving his home and that he was never found guilty of a felony arising from his custody

or confinement.



              However, petitioner fails to recognize a critical difference in the wording of

the statute at the time these cases were decided and the one under which he stands

convicted. The escape statutes in effect at the time the Court decided Pishner and Robison

provided that “‘[a] person confined in jail on conviction of a criminal offence, who escapes

thence by force or violence, shall be confined in the penitentiary one year . . . .’” Pishner,

73 W. Va. at 745, 81 S.E. at 1047 (emphasis added). A “conviction,” therefore was a

necessary element of the crime. The statutes at that time did not make provision for escape

while confined on an as-yet unprosecuted criminal charge.



              The unambiguous language of the current statute unequivocally forecasts the

resolution of this issue. “[I]f the legislative intent is clearly expressed in the statute, this

Court is not at liberty to construe the statutory provision, but is obligated to apply its plain

language.” Dan’s Carworld, LLC v. Serian, 223 W. Va. 478, 484, 677 S.E.2d 914, 920

(2009). See also Syl. Pt. 2, Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384 (1970)

(“Where the language of a statute is free from ambiguity, its plain meaning is to be accepted

and applied without resort to interpretation.”); Syl. Pt. 5, State v. General Daniel Morgan


breaking.” Id. at 748-749, 81 S.E. at 1048. See also McGilton, 143 W. Va. at 331, 102
S.E.2d at 148 (noting Pishner as “apparently representing the minority view on this
question”).
                                               8

Post No. 548, V.F.W., 144 W. Va. 137, 107 S.E.2d 353 (1959) (“When a statute is clear

and unambiguous and the legislative intent is plain, the statute should not be interpreted by

the courts, and in such case it is the duty of the courts not to construe but to apply the

statute.”). West Virginia Code § 61-5-10 clearly provides that one who escapes from

lawful confinement is guilty of the felony offense of escape, if the custody or confinement

from which he or she escapes “is by virtue of a charge or conviction for a felony[.]”

Accordingly, when being prosecuted for felony escape “by virtue of a charge . . . for a

felony,” the focus is on the nature of the charges from which the individual escaped lawful

custody. It is therefore irrelevant whether he or she is ultimately convicted only of a

misdemeanor offense stemming from the underlying charge.



              The Legislature’s wisdom in this regard is apparent. The offense of escape

is clearly designed to serve as deterrent to escape from lawful custody, regardless of the

status of the underlying proceedings. Escape statutes are “intended to protect our jails from

force and violence, and further to secure a holding of those convicted of crimes until the

day of their punishment.” Pishner, 73 W. Va. at 748, 81 S.E. at 1048 (Robinson, J.,

dissenting). That purpose is not lessened by virtue of the nature or timing of the custody,

whether it be pre-conviction or post-conviction. Neither guilt nor innocence have been

adduced at the “charge” juncture, but one cannot deny the equal necessity of protecting

those charged with confining such individuals pending trial and providing a strong

disincentive to those in custody to breach that custody. The statute’s intended breadth to

encompass escape on a pre-conviction charge is made patent by the litany of individuals

                                             9

and facilities from which one may be guilty of escape—many of whom maintain lawful

custody prior to conviction: “a county sheriff, the director of the regional jail authority, an

authorized representative of said persons, a law-enforcement officer, probation officer,

employee of the Division of Corrections, court bailiff, or [] any institution, facility, or any

alternative sentence confinement[.]” W. Va. Code § 61-5-10.           Moreover, the ultimate

outcome of the charge is immaterial to the fact that the escape in fact occurred while under

custody or confinement due to a pending felony charge. See Com v. Stoppard, 103 A.3d

120, 124 (Pa. Super. Ct. 2014) (upholding felony escape conviction where “at the time

Appellant fled” he had been charged with felonies which were later withdrawn).



              We therefore hold that an individual charged with a felony who escapes from

lawful confinement as prescribed in West Virginia Code § 61-5-10 may be convicted of

the offense of felony escape irrespective of the ultimate outcome of the charge for which

he or she was in lawful custody or confinement. Accordingly, contrary to his assertion,

petitioner did not merely violate a condition of his home confinement; he breached the very

confinement to which he was subject and, commensurately, the provisions of West Virginia

Code § 61-5-10. Accordingly, we find no error in petitioner’s conviction of the crime of

felony escape.



B.     NEWLY-DISCOVERED EVIDENCE

              Petitioner next asserts that the trial court erred in denying his motion for a

new trial as to the escape and destruction of property charges on the basis of newly-


                                              10 

discovered evidence. Petitioner argues that his second counsel (appointed after the first

attorney tried the escape and destruction of property case) obtained medical records

demonstrating his intoxication at the time of the escape and destruction of property that

would have been relevant in his escape trial. This Court has held:

                    “A new trial will not be granted on the ground of newly-
             discovered evidence unless the case comes within the
             following rules: (1) The evidence must appear to have been
             discovered since the trial, and, from the affidavit of the new
             witness, what such evidence will be, or its absence
             satisfactorily explained. (2) It must appear from facts stated in
             his affidavit that plaintiff was diligent in ascertaining and
             securing his evidence, and that the new evidence is such that
             due diligence would not have secured it before the verdict. (3)
             Such evidence must be new and material, and not merely
             cumulative; and cumulative evidence is additional evidence of
             the same kind to the same point. (4) The evidence must be such
             as ought to produce an opposite result at a second trial on the
             merits. (5) And the new trial will generally be refused when the
             sole object of the new evidence is to discredit or impeach a
             witness on the opposite side.” Syllabus Point 1, Halstead v.
             Horton, 38 W.Va. 727, 18 S.E. 953 (1894).

Syl., State v. Frazier, 162 W. Va. 935, 253 S.E.2d 534 (1979).



             We find that there is no reasonable basis upon which this information may

be characterized as “newly-discovered.” Petitioner reported to the officers and medical

personnel upon being apprehended after his escape that he had used heroin and non-

prescribed Klonopin. The only “new” evidence according to petitioner’s counsel is the




                                            11 

actual medical records demonstrating the level of his intoxication. 3 Medical records

demonstrating petitioner’s intoxication—which were known and available to petitioner and

his counsel during trial—satisfy none of the Frazier requirements.4 Accordingly, we find

no error in the circuit court’s denial of a new trial.



C.     SEVERANCE/ELECTION OF ORDER OF TRIALS

              Finally, petitioner claims that the circuit court erred by allowing the State to

prosecute the escape and destruction of property charges first. Petitioner maintains that if

the grand larceny were tried first, he would have then been in a position to introduce

evidence of his misdemeanor petit larceny conviction in the escape trial.




       3
         Moreover, we note that general intent crimes—such as escape and destruction of
property—are not susceptible to intoxication defense; accordingly this information would
have been ultimately inadmissible. See State v. Skidmore, 228 W. Va. 166, 171, 718 S.E.2d
516, 521 (2011) (“This Court has recognized that voluntary intoxication does not ordinarily
excuse a crime. Voluntary intoxication may, however, reduce the degree of the crime or
negate a specific intent.” (citations omitted)); R. W. Gascoyne, Annotation, Modern Status
of the Rules as to Voluntary Intoxication as Defense to Criminal Charge, 8 A.L.R.3d 1236
§4(a) (1966) (“The definitions of certain offenses include a specific intent to do certain
things for a specific purpose, while as to ordinary offenses, the general criminal intent
necessary to conviction is deduced from the doing of the criminal act.” (emphasis added)).
       4
         Further, as the circuit court noted, petitioner’s first attorney may not have
introduced that evidence for tactical reasons. During oral argument before this Court,
petitioner’s counsel conceded that any assertion that petitioner’s trial counsel should have
obtained such information is better suited for habeas review under an ineffective assistance
of counsel claim.


                                               12 

              We find that this error, if any, was invited by petitioner. In his motion to

sever the charges, petitioner stated: “Therefore, the Defendant requests that the Honorable

Court sever the charges as requested in this motion and require the State of West Virginia

to elect which particular count[s] that the State wishes to try in the first trial.” (emphasis

added). It is well-established that “[a] litigant may not silently acquiesce to an alleged

error, or actively contribute to such error, and then raise that error as a reason for reversal

on appeal.” Syl. Pt. 1, Maples v. W. Virginia Dep’t of Commerce, Div. of Parks &

Recreation, 197 W. Va. 318, 475 S.E.2d 410 (1996).5 We therefore likewise find that the

circuit court committed no reversible error in permitting the escape and destruction of

property charges to be tried first.



                                      IV. CONCLUSION

              Based upon the foregoing, the November 7, 2016, and November 9, 2016,

orders of the Circuit Court of Wood County are hereby affirmed.



                                                                                Affirmed.




       5
         Moreover, given our conclusion hereinabove that felony escape may be founded
on a felony charge or conviction, evidence of the misdemeanor conviction would have
likely been immaterial.
                                              13 

