       IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                              January 2020 Term
                                _____________                           FILED
                                                                     June 1, 2020
                                 No. 18-0481                           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.

                      KRISTAFER AVERY BLECK,
                        Defendant Below, Petitioner
            ________________________________________________

               Appeal from the Circuit Court of Jefferson County
                     The Honorable Bridget Cohee, Judge
                    Criminal Action No. CC-19-2017-F-88

                               AFFIRMED
            ________________________________________________

                         Submitted: February 19, 2020
                             Filed: June 1, 2020



James T. Kratovil                       Patrick Morrisey
Kratovil Law Offices PLLC               Attorney General
Charles Town, West Virginia             Lara K. Bissett
Attorney for the Petitioner             Assistant Attorney General
                                        Charleston, West Virginia
                                        Attorneys for the Respondent

JUSTICE JENKINS delivered the Opinion of the Court.
                             SYLLABUS BY THE COURT



             1.      “The Supreme Court of Appeals reviews sentencing orders . . . under

a deferential abuse of discretion standard, unless the order violates statutory or

constitutional commands.” Syllabus point 1, in part, State v. Lucas, 201 W. Va. 271, 496

S.E.2d 221 (1997).



             2.      “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.” Syllabus

point 4, State v. Goodnight, 169 W. Va. 366, 287 S.E.2d 504 (1982).



              3.     “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.” Syllabus point 8, in part, State v.

Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).




                                             i
Jenkins, Justice:

              Petitioner Kristafer Avery Bleck (“Mr. Bleck”) appeals from an order 1 of the

Circuit Court of Jefferson County that sentenced him to one term of not less than one year

nor more than five years, one term of not less than two years nor more than ten years, and

one term of not less than one year nor more than fifteen years. 2 In particular, Mr. Bleck

asserts that the circuit court erred in considering an alleged previously expunged charge 3

during his sentencing hearing and in denying him probation. The State responds that Mr.

Bleck failed to timely object in the proceeding below and that, even if he had timely

objected, a circuit court’s consideration of an expunged charge is not an impermissible

factor. After a careful review of the briefs submitted by the parties, the record submitted

on appeal, the oral arguments presented to this Court, and the applicable case law, we find

that Mr. Bleck waived his objection, and we affirm the circuit court’s April 27, 2018

sentencing order. This Court need not and does not address whether the circuit court

considered an impermissible factor during sentencing.


              1
                 We note that in their respective briefs both parties argue that Mr. Bleck is
appealing the denial of his West Virginia Rules of Criminal Procedure Rule 35 motion for
reconsideration of his sentence that he filed on April 16, 2018. For example, in Mr. Bleck’s
brief he states that the law governing the issue before the Court is Rule 35(a). Similarly,
the State specifically states that Mr. Bleck is appealing the denial of his Rule 35(a) motion.
However, upon examination of the notice of appeal, it provides Mr. Bleck is actually
appealing his sentencing order entered on April 27, 2018, not the denial of the Rule 35(a)
motion. In fact, the notice of appeal in this case was filed several days prior to the circuit
court’s final order on the Rule 35(a) motion.
              2
                  The three sentences were ordered to run concurrently.
              3
                  The alleged previously expunged charge was a domestic assault charge
from 2010.
                                              1
                                               I.

                      FACTUAL AND PROCEDURAL HISTORY

              In April of 2017, the grand jury of Jefferson County indicted Mr. Bleck on

one count of first degree robbery, one count of felony conspiracy, one count of assault in

the commission of a felony, and one count of burglary. 4 Subsequently, on January 26,

2018, the State extended a plea agreement to Mr. Bleck wherein he would plead “no

contest” to count two of the indictment charging felony conspiracy; count three of the

indictment charging assault in the commission of a felony; and count four of the indictment

charging burglary. In exchange for the no contest plea, the State agreed to dismiss count

one of the indictment charging robbery in the first degree. The State also agreed that it

would recommend that Mr. Bleck

              be sentenced to the penitentiary for not less than one year nor
              more than five years for his conviction of Felony Conspiracy,
              not less than two years nor more than ten years for his
              conviction of Assault in the Commission of a Felony, and not

              4
                During the plea hearing, the State laid the following factual foundation
regarding the underlying events leading to the indictment. On March 14, 2016, the victim,
Mr. Farmer, heard a knock at his door. Mr. Farmer then saw two men kicking in his door
and breaking into his home. The two men “immediately pounced on Mr. Farmer.” There
was punching and kicking. One of the two men, Mr. Hess, was wearing a clown mask, but
the other, Mr. Bleck, was not. While most of the injuries suffered by Mr. Farmer were
inflicted by Mr. Hess, Mr. Bleck was the one who took a “knife to Mr. Farmer’s throat and
held him down and threatened to kill him.” Eventually, Mr. Bleck and Mr. Hess left the
home with a “shotgun and safe which contained the handgun.” Furthermore, the entire
encounter was witnessed by Mr. Farmer’s young son. Mr. Bleck admitted to most of the
events described above and further admitted that he had “got[ten] high” on crack cocaine
prior to committing the acts with Mr. Hess. Additionally, at the sentencing hearing, Mr.
Farmer testified regarding his injuries as a result of the incident. Mr. Farmer stated that he
sustained several injuries, including a laceration to his wrist, a laceration to his chin, and a
laceration to his head. He had to receive multiple stitches and staples. The circuit court
also noted that Mr. Farmer had a laceration to his throat.
                                               2
              less than one year nor more than fifteen years for his conviction
              of Burglary.

Furthermore, the State agreed to recommend that Mr. Bleck’s sentences run concurrently

rather than consecutively. In other words, the State agreed to recommend “an overall

sentence of not less than two years nor more than fifteen years in the penitentiary.” The

plea agreement, signed by Mr. Bleck, further agreed to “waive[] his right to appeal his

conviction and any lawful sentence imposed in a lawful manner to the West Virginia

Supreme Court of Appeals.” The plea agreement indicated that Mr. Bleck may not request

deferred adjudication but that he may request any sentence authorized by law, including

concurrent sentences, alternative sentences, or a combination thereof.            Moreover, it

provided that Mr. Bleck understood that the circuit court retained sentencing discretion.



              Mr. Bleck pled no contest to one count of felony conspiracy, one count of

assault in the commission of a felony, and one count of burglary on January 31, 2018.

Subsequently, in February of 2018, the circuit court entered a conviction order

acknowledging that it had reviewed the terms of the plea agreement with Mr. Bleck and

that he understood the plea agreement’s terms. The conviction order further provided that,

during the plea hearing, Mr. Bleck “acknowledged that the [court] does not have to follow

the State’s sentencing recommendation and [Mr. Bleck] could not withdraw his plea for

that reason.” The circuit court found that Mr. Bleck “underst[ood] the terms of the plea

agreement, the nature and consequences of the pleas, that there is a factual basis and




                                             3
foundation for the tendered pleas, and that [Mr. Bleck] tendered the pleas intelligently,

knowingly, and voluntarily.”



              On March 23, 2018, the pre-sentence 5 investigation (“PSI”) report was

prepared and was subsequently filed with the circuit court on March 28, 2018. The PSI

report contained information showing that, on September 28, 2010, Mr. Bleck was arrested

for domestic assault and obstruction of an officer. The PSI report further noted that, on

April 4, 2011, Mr. Bleck pled no contest to the obstruction of an officer charge and was

assessed a fine; the domestic assault charge was dismissed.



              Prior to the sentencing hearing, Mr. Bleck filed a motion for probation on

April 3, 2018, arguing, among other things, that he had no prior felony convictions, he was

gainfully employed, he had a low risk of reoffending, he was not a danger to the

community, his continued supervision by probation was the most effective course of

rehabilitation, and his three misdemeanor convictions were many years ago.



              On April 9, 2018, the circuit court held a sentencing hearing. During the

sentencing hearing, Mr. Bleck’s counsel acknowledged receipt of the PSI report. 6 The



              5
               The document is actually labeled “pre-plea investigation report,” but for all
intents and purposes, it was a pre-sentence investigation report.
              6
                  Specifically, the following exchanged occurred:

                                              4
circuit court inquired if there were any material inaccuracies to the PSI report. Mr. Bleck’s

counsel affirmatively stated that there were objections to the PSI report. In particular, Mr.

Bleck’s counsel moved to amend “Section II., A.” of Mr. Bleck’s PSI report, which referred

to law enforcement’s narrative of the version of events as found in the official complaint.

Mr. Bleck took issue with the statement that he had traded a shotgun for crack cocaine.

The State responded that that particular statement came from the police report and that it

could not be amended. The circuit court essentially did not amend that section of the PSI

report but noted that Mr. Bleck corrected that statement. After resolving Mr. Bleck’s

objection, the circuit court again asked the parties if there were “[a]ny other material

inaccuracies with the PSI[.]” Mr. Bleck’s counsel stated “[n]o, [y]our [h]onor.” 7 Mr.

Bleck did not object to any other information contained in the PSI report, including the

reference to the 2010 domestic assault charge, and he himself informed the circuit court

that he did not have any reason why his sentence should not be pronounced at that time.



              The circuit court then allowed testimony and presentation of evidence by

both parties. Mr. Bleck’s mother and wife testified on his behalf. The victim also testified.


              The Court: We are set today for our sentencing hearing in this
              matter.

              Have the parties received a copy of the pre-plea investigation
              report prepared by probation?

              [Mr. Bleck’s Counsel]: The defense has.
              7
                 Mr. Bleck’s counsel did indicate that he previously had requested
clarification about the amount of restitution, but eventually agreed to the figure listed.
                                             5
Once again, Mr. Bleck requested alternative sentencing in the form of probation. In

response, the circuit court stated the following:

              I do believe that I have considered all of the factors which are
              relevant to the imposition of sentence. I have taken into
              consideration the PSI and also the testimony today; the
              statements made by Mr. Bleck’s mother and wife and the
              testimony given by the victim in this case; and I find based
              upon the fact that this was a crime of violence with a laceration
              to the throat, if this was the first violent act of the Defendant I
              might consider probation, but we had a 2010 domestic assault
              that was also part of our record in the PSI[.] I do find that the
              State has granted a plea agreement that gives Mr. Bleck the
              benefit of him accepting responsibility but he still needs to
              serve some time for his conduct in this event.

(Emphasis added). The circuit court then sentenced Mr. Bleck to serve the following three

concurrent terms of incarceration: not less than one year nor more than five years for his

conviction of felony conspiracy, not less than two years nor more than ten years for his

conviction of assault in the commission of a felony, and not less than one year nor more

than fifteen years for his conviction of burglary. The circuit court further ordered him to

pay $1,236.54 in restitution. An order committing Mr. Bleck to the custody of the

Department of Corrections was entered that same day.



              Before the filing of the written sentencing order memorializing the circuit

court’s ruling from the April 9 hearing, on April 16, 2018, Mr. Bleck filed “Defendant’s

Motion for and Memorandum in Support of the Reconsideration of Sentence” pursuant to

Rule 35 of the West Virginia Rules of Criminal Procedure, and once again requested

probation. Mr. Bleck made several arguments in his motion, including his contention that


                                              6
the circuit court improperly considered his domestic assault charge from 2010 because it

allegedly had been previously expunged. In particular, Mr. Bleck asserted that if “[t]he

[circuit c]ourt [had] found that had this been [his] first violent offense, he would have been

granted probation. However, because [his] criminal record showed a prior domestic

violence arrest in 2010, the [circuit c]ourt [had] sentenced him to the penitentiary.” 8 Mr.

Bleck further argued that “[b]y holding [his] 2010 arrest for domestic assault against him

and thereby sentencing him to confinement because of this allegedly violent history, the

[circuit c]ourt relied on an impermissible factor in violation of W. Va. Code [section] 61-

11-25.” 9 In support of his argument, Mr. Bleck attached a single letter from the Berkeley

County Magistrate Clerk stating that there is no record of a domestic assault charge

pursuant to West Virginia Code section 61-11-25. We note that Mr. Bleck did not produce

below any order of expungement or any information, such as when and where the

expungement was obtained.



              On April 27, 2018, the circuit court entered a sentencing order reflecting its

decision at the April 9 sentencing hearing. The sentencing order specifically stated that in

sentencing Mr. Bleck, the circuit court considered the PSI report; the evidence presented;



              8
                Significantly, this is an incorrect statement. The circuit court judge clearly
stated during the sentencing that “I might consider probation.” (Emphasis added).
              9
                West Virginia Code section 61-11-25 (LexisNexis 2014) provides for the
expungement of certain criminal records for charges that have been dismissed and for
orders sealing the court records concerning the dismissed charges once expungement has
been granted.
                                              7
and statements and sentencing recommendations of the parties. Ultimately, the circuit

court adopted its previously noted sentence of essentially not less than two nor more than

fifteen years of incarceration. The circuit court noted its denial of Mr. Bleck’s request for

probation. The order further incorporated by reference all findings of fact and conclusions

of law made on the record in support of its decision to deny Mr. Bleck’s request for

probation.    The sentencing order did not rule on or mention the motion for

reconsideration. 10 Mr. Bleck appeals from the April 27, 2018 sentencing order.



                                             II.

                               STANDARD OF REVIEW

              This Court previously has articulated the 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).          Additionally, we have consistently held that

“[s]entences 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). See also Syl. pt. 3, State v. Georgius, 225 W. Va.




              10
                On June 4, 2018, after the filing the notice of appeal in the instant matter,
the circuit court denied the Rule 35 motion for reconsideration of sentence without a
hearing.
                                             8
716, 696 S.E.2d 18 (2010) (per curiam). With this governing standard in mind, we turn to

the parties’ arguments.



                                             III.

                                       DISCUSSION

              Mr. Bleck raises a single issue on appeal: whether the circuit court abused

its discretion in using an expunged charge in its decision to incarcerate him instead of

placing him on probation. 11 Essentially, Mr. Bleck is arguing that the circuit court erred

by relying on an allegedly previously expunged charge of domestic violence—as noted in

the PSI report—in its decision as to whether it was going to grant Mr. Bleck probation. The

State argues that Mr. Bleck failed to object timely to the circuit court’s decision in the

proceeding below. 12 We agree with the State that Mr. Bleck has waived his sole assignment

of error.




              11
                 Mr. Bleck states in passing in his sole assignment of error that the circuit
court abused its discretion in considering a dismissed charge during sentencing. He does
not offer any argument on this point in his brief or reply, so we will not consider the issue.
See State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996) (“Although we
liberally construe briefs in determining issues presented for review, issues which are not
raised, and those mentioned only in passing but [which] are not supported with pertinent
authority, are not considered on appeal.”).

              12
                 The State further argues that even if Mr. Bleck had timely objected, a
circuit court’s consideration of an expunged charge is not an impermissible factor in
determining what sentence to impose. However, because we find that Mr. Bleck has
waived his assignment of error, we need not decide this.

                                              9
              We recognize that a criminal “defendant has a due process right to be

sentenced on the basis of accurate information. Fox v. State, 176 W. Va. 677, 682, 347

S.E.2d 197, 202 (1986). See United States v. Tucker, 404 U.S. 443, 92 S. Ct. 589, 30

L. Ed. 2d 592 (1972).” State v. Craft, 200 W. Va. 496, 499, 490 S.E.2d 315, 318 (1997).

However, we have found that a criminal defendant may affirmatively waive this right by a

failure to object at the time of sentencing. See State v. Proctor, 227 W. Va. 352, 360, 709

S.E.2d 549, 557 (2011) (per curiam), disapproved on other grounds by State v. Marcum,

238 W. Va. 26, 33 n.13, 792 S.E.2d 37, 44 n.13 (2016) (“In summary, the record shows

that the appellant never objected prior to his sentencing hearing to any of the reports of

which he now asserts contained material misstatements of fact. Moreover, counsel for the

appellant indicated that he had reviewed the documents prior to sentencing. . . . In light of

the aforementioned, the appellant waived this assignment of error.”). 13


              13
                  Other courts also have found waiver to be applicable in similar
circumstances. For example, in Reiger v. State, 908 A.2d 124 (Md. Ct. Spec. App. 2006),
the appellant argued that “a defendant need not lodge a contemporaneous objection to the
sentencing court’s consideration of improper evidence or impermissible factors in order to
preserve his right to appellate review of that sentence.” Id. at 127-28. However, after
examining several cases, the court held that “an objection is required to prevent waiver in
these circumstances.” Id. at 128. The court concluded “that the same waiver rules and
rationales govern” a sentencing court’s consideration of impermissible factors as well as
its consideration of improper evidence. Id. See also Com. v. Garrison, 437 A.2d 407, 409
(Pa. Super. Ct. 1981) (“Appellant contends that his father’s statement concerning
Appellant’s involvement with drugs unduly influenced the court at the time of sentencing
and that, because this statement was unsubstantiated, it was an impermissible factor to
consider. We note that neither Appellant nor his attorney objected at the sentencing hearing
to the father’s statement concerning drugs. This issue has therefore been waived.
Piernikowski v. Cardillo, 263 Pa. Super. 202, 397 A.2d 817 (1979); Nobel v. West Penn
Power Co., 36 Pa. Cmwlth. 577, 388 A.2d 781 (1978).”); State v. McDowell, 763 N.W.2d
247 (Wis. Ct. App. 2009) (“There is no question but that a defendant has a due process
right to be sentenced on the basis of accurate information. . . . A defendant can, however,
                                             10
              With regards to the waiver doctrine, we have held that “[w]hen 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.” Syl. pt. 8, in part, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).

Initially, we must examine the relevant rules regarding sentencing procedure and the timing

of objections to the contents of a PSI report. Rule 32(b)(6)(B) of the West Virginia Rules

of Criminal Procedure, in relevant part, requires that “[w]ithin a period prior to the

sentencing hearing, to be prescribed by the court, the parties shall file with the court any

objections to any material information contained in or omitted from the presentence

report.” (Emphasis added). Additionally, Rule 32(b)(6)(C) provides that: “[e]xcept for

any unresolved objection under subdivision (b)(6)(B), the court may, at the hearing, accept

the presentence report as its findings of fact. For good cause shown, the court may allow a

new objection to be raised at any time before imposing sentence.” 14 Consequently, the




waive this right by failing to contest the accuracy of information presented at the sentencing
hearing, even if the circuit court subsequently relies on the inaccurate information.”
(internal quotations and citations omitted)).
              14
                 See also W. Va. R. Crim. P. 32(c)(1) (“Sentencing Hearing. At the
sentencing hearing, the court must afford counsel for the defendant and for the state an
opportunity to comment on the probation officer’s determinations and other matters
relating to the appropriate sentence, and must rule on any unresolved objections to the
presentence report. The court may, in its discretion, permit the parties to introduce
testimony or other evidence on the objections. For each matter controverted, the court must
make either a finding on the allegation or a determination that no finding is necessary
because the controverted matter will not be taken into account in, or will not effect [sic],
sentencing. A written record of these findings and determinations must be appended to any
copy of the presentence report made available to the Board of Parole.” (emphasis added)).

                                             11
West Virginia Rules of Criminal Procedure make absolutely clear that the appropriate time

to object to any portion of a pre-sentence report is prior to the sentencing hearing, or at

the very least, for good cause, prior to the imposition of sentence. 15


              15
                Likewise, the West Virginia Trial Court Rules provide for similar
provisions. Specifically, Rule 43.01 of the West Virginia Trial Court Rules requires:

              (a) In all cases where a presentence investigation report is
              prepared pursuant to W. Va. R. Crim. P. 32 and W. Va. Code
              § 62-12-7 or where the report is otherwise ordered by the court,
              the probation officer shall disclose the presentence
              investigation report to the defendant and to counsel for the
              defendant and to the attorney for the State not less than ten (10)
              calendar days prior to sentencing. Within five (5) calendar days
              thereafter, the parties by counsel shall communicate to the
              probation officer any objections they may have as to material
              information, any fact that was either not included or was stated
              erroneously, or as to the law, or sentencing alternatives and
              classifications. The communication shall be in writing with a
              copy served upon opposing counsel or an unrepresented
              defendant contemporaneously with service upon the probation
              officer.

              (b) After receiving objections, the probation officer may
              conduct further investigation and make revisions to the
              presentence report that may be necessary. The officer may
              require counsel to meet with the officer to discuss unresolved
              factual and legal issues. Not less than three (3) calendar days
              prior to sentencing, the probation officer shall submit the
              presentence report to the sentencing judge. The report shall be
              accompanied by an addendum setting forth objections that
              have not been resolved, together with the officer’s comments
              and recommendations. The probation officer shall certify that
              the contents of the report, including revisions and the
              addendum, have been disclosed to the defendant and to counsel
              for the defendant and the State, and that the addendum fairly
              states any remaining objections.

              (c) With the exception of an objection under subsection (a) that
              has not been resolved, the presentence investigation report
                                              12
              Furthermore, this Court specifically considered a defendant’s waiver of the

due process right to be sentenced on the basis of accurate information in State v. Proctor,

227 W. Va. 352, 709 S.E.2d 549 (2011) (per curiam), disapproved on other grounds by

State v. Marcum, 238 W. Va. 26, 33 n.13, 792 S.E.2d 37, 44 n.13 (2016). In that case, the

defendant argued that “the circuit court erred when it denied his motion for a reduction of

his sentence . . . based upon misstatements of fact in the sheriff’s report, the presentence

report, and psychological evaluation considered as a part of his sentencing for the

underlying crimes.” 227 W. Va. at 357-58, 709 S.E.2d at 554-55 (footnotes omitted). The

defendant further contended that “his sentence should be reconsidered because it was based

upon material misstatements of fact.” Id. at 358, 709 S.E.2d at 555. Conversely, the State

argued that

              because the appellant knew, or should have known, prior to the
              sentencing hearing about the alleged misstatements in the
              numerous reports, and had in his possession all of the
              documents in question, as well as the taped interview with the
              victim, but did not object to anything at sentencing, he has
              waived this assignment of error.

Id.




              may be accepted by the court as accurate. For good cause,
              however, the court may allow additional objections to be raised
              at any time before the imposition of sentence. In resolving
              disputed issues of fact, the court may consider relevant
              information without regard to its admissibility under the rules
              of evidence, provided it otherwise has sufficient indicia of
              reliability.

W. Va. Trial Ct. R. 43.01 (emphasis added).

                                            13
             The Proctor Court stated that we

             [h]a[ve] consistently held that “silence may operate as a waiver
             of objections to error and irregularities at the trial which, if
             seasonably made and presented, might have been regarded as
             prejudicial.” State v. Grimmer, 162 W. Va. 588, 595, 251
             S.E.2d 780, 785 (1979), overruled on other grounds by State v.
             Petry, 166 W. Va. 153, 273 S.E.2d 346 (1980). The raise or
             waive rule is designed “to prevent a party from obtaining an
             unfair advantage by failing to give the trial court an opportunity
             to rule on the objection and thereby correct potential error.”
             Wimer v. Hinkle, 180 W. Va. 660, 663, 379 S.E.2d 383, 386
             (1989).

227 W. Va. at 359, 709 S.E.2d at 556. Additionally, as to the waiver doctrine, the Proctor

Court explained that:

             “Our cases consistently have demonstrated that, in general, the
             law ministers to the vigilant, not to those who sleep on their
             rights. . . . When a litigant deems himself or herself aggrieved
             by what he or she considers to be an important occurrence in
             the course of a trial or an erroneous ruling by a trial court, he
             or she ordinarily must object then and there or forfeit any right
             to complain at a later time. The pedigree for this rule is of
             ancient vintage, and it is premised on the notion that calling an
             error to the trial court’s attention affords an opportunity to
             correct the problem before irreparable harm occurs. There is
             also an equally salutary justification for the raise or waive rule:
             It prevents a party from making a tactical decision to refrain
             from objecting and, subsequently, should the case turn sour,
             assigning error (or even worse, planting an error and nurturing
             the seed as a guarantee against a bad result). In the end, the
             contemporaneous objection requirement serves an important
             purpose in promoting the balanced and orderly functioning of
             our adversarial system of justice.”

Id. at 360, 709 S.E.2d at 557 (quoting State v. LaRock, 196 W. Va. 294, 316, 470 S.E.2d

613, 635 (1996)) (emphasis added). Accordingly, this Court in Proctor found that the

defendant “did not object to the reports during the sentencing hearing even though he


                                             14
stated on the record that he had read the reports prior to the hearing” and so, based on that

representation, he had waived the assignment of error. 227 W. Va. at 359, 360, 709 S.E.2d

at 556, 557.



               This application of the waiver doctrine was again used in State v. Rogers,

No. 14-0373, 2015 WL 869323 (W. Va. Jan. 9, 2015) (memorandum decision). The

Rogers Court determined:

                      The record on appeal is clear that petitioner received a
               copy of the pre-sentence investigation report on January 31,
               2013, well in advance of the February 18, 2014, sentencing
               hearing. It is beyond cavil that he had ample opportunity to
               object to the report either prior to or during the sentencing
               hearing. See W. Va. R. Crim. P. 32. He failed to do so. To the
               contrary, during sentencing, when the circuit court directly
               inquired of both petitioner and his counsel as to whether they
               had reviewed the pre-sentence investigation report, whether
               they had any corrections or additions to make to the report, and
               whether they found it to be accurate, they acquiesced to the
               contents of the report without equivocation and without
               objection on any grounds. Given these facts, we conclude that
               the circuit court did not abuse its discretion in denying
               petitioner’s motion for reconsideration of sentence.

Id. at *3 (footnotes omitted).



               In the present matter, Mr. Bleck argues that “[i]t goes without saying that the

pre-sentence report should be accurate and reflect the true nature of the Defendant’s record.

The pre-sentence report in this case was based upon faulty information[,] and the judge

relied upon that faulty information in her decision.” It is undisputed that Mr. Bleck failed

to raise the issue presently before us prior to or at any point during the sentencing hearing.

                                              15
It is further undisputed that the PSI report that contained the information regarding the

2010 domestic assault charge was prepared on March 23, 2018, and filed on March 28,

2018. The sentencing hearing did not occur until April 9, 2018. Accordingly, the record

demonstrates, and Mr. Bleck does not dispute, that he had the chance to review the PSI

report several days prior to the sentencing hearing. Furthermore, there is no evidence in

the record that any written objections were filed prior to the sentencing hearing.



              Additionally, during the sentencing hearing, the circuit court explicitly

inquired as to whether the parties had received the PSI report, and Mr. Bleck’s counsel

affirmatively stated that he had. The circuit court then gave the parties an opportunity to

orally object to any material inaccuracies contained within the PSI report prior to

pronouncing the sentence.       Mr. Bleck’s counsel did, in fact make an objection

demonstrating that he had reviewed the PSI report prior to the sentencing hearing. Despite

the challenge to the PSI report, not only did Mr. Bleck fail to object to the inclusion of the

2010 domestic assault charge, but he also made no attempt to correct the PSI report or

inform the circuit court that the charge had been expunged. Consequently, Mr. Bleck

knowingly and intelligently made no objection or attempt to inform the circuit court that

the 2010 domestic charge noted in the PSI report had been expunged despite numerous

opportunities to do so. 16 Accordingly, in light of the above analysis and the narrow facts


              16
                Importantly, we note that it is not an insignificant process to obtain an
expungement of a previous charge that has been dismissed. In order to obtain an
expungement of a charge that has been dismissed, one must follow the procedure set forth
in West Virginia Code section 61-11-25. Specifically, an individual must file a petition in
                                             16
of this particular matter, we conclude that Mr. Bleck has waived his sole assignment of

error.

                                            IV.

                                     CONCLUSION

         Accordingly, for the reasons stated above, we affirm the sentencing order of the

Circuit Court of Jefferson County entered on April 27, 2018.



                                                                                  Affirmed.




circuit court. Id. The circuit court then may set a hearing on the petition. Id. Finally, the
circuit court will ultimately either grant or deny the petition for expungement and issue an
order. Id. Additionally, the record before us is devoid of any evidence or contention that
Mr. Bleck was unaware until after he was sentenced in the underlying matter that the 2010
domestic assault charge had been expunged. Accordingly, the record before us
demonstrates that if Mr. Bleck had gone through this expungement process to have his
2010 domestic assault charge expunged, he would have known prior to or during the
sentencing hearing that the 2010 domestic assault charge had been expunged.
                                             17
