                                                                                             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




1
  Eden actually addressed the imposition of a greater sentence by a circuit court after an appeal from a
justice of the peace. However, in the body of the opinion Eden found 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.” Eden, 163 W. Va. at 384, 256 S.E.2d at 876. This language was set out in syllabus
point 2 of State v. Gwinn, 169 W. Va. 456, 288 S.E.2d 533 (1982), in part, as follows:
         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.
See Syl. pt. 3, in part, State v. Cobb, 166 W. Va. 65, 272 S.E.2d 467 (1980) (“When a new trial is granted
upon appeal, a defendant in the new trial … cannot be … sentenced to a harsher penalty than he received
at the original trial.”).
2
  The Petitioner was also convicted of attempted sexual abuse in the first degree and sentenced to 1 to 3
years in prison. The attempted sexual abuse sentence was not suspended. The sentences were ordered to be
served consecutively.
                                                     1
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.

3
  The Petitioner was also once again convicted of attempted sexual abuse in the first degree and sentenced
to 1 to 3 years in prison. However, unlike the consecutive sentences in the first trial, the circuit court ordered
the sentences be served concurrently.
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             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



4
    The majority’s unsupported new law was set out in syllabus point 4 of the opinion as follows:
                  When a defendant successfully appeals a conviction for which he or she
                  was granted probation, State v. Eden, 163 W. Va. 370, 256 S.E.2d 868
                  (1979) prohibits a circuit court from imposing a longer term of probation,
                  or withholding probation entirely, when sentencing the defendant upon
                  reconviction at a later trial for the same crime or crimes, post-appeal. To
                  the extent that it conflicts with Eden’s due process protections, we
                  overrule our decision in State v. Workman, No. 13-0133, 2013 WL
                  6183989 (November 26, 2013) (memorandum decision).
5
  The decision in Pearce involved two consolidated cases. In one case the defendant was given a greater
sentence after a second trial of the same offenses. In the second case the defendant’s conviction and sentence
from a guilty plea were reversed and, subsequent to a jury trial on the offenses, he was given a greater
sentence. The holding in Pearce applied to both types of increased sentences, i.e., an increase in punishment
after a second jury trial or after a jury trial from a vacated plea conviction.
                                                      3
             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.

6
  In subsequent cases, the Supreme Court clarified that Pearce’s presumption of vindictiveness “do[es] not
apply in every case where a convicted defendant receives a higher sentence on retrial.” Texas v.
McCullough, 475 U.S. 134, 138, 106 S.Ct. 976, 979, 89 L.Ed.2d 104 (1986). Instead, the Supreme Court
limited the application of Pearce to circumstances “in which there is a reasonable likelihood ... that the
increase is the product of actual vindictiveness on the part of the sentencing authority. Where there is no
such reasonable likelihood, the burden remains upon the defendant to prove actual vindictiveness.” Smith,
490 U.S. at 799–800, 109 S. Ct. at 2205 (internal quotation marks and citations omitted).
                                                    4
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.




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