                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


State of West Virginia,                                                           FILED
Plaintiff Below, Respondent                                                   January 17, 2020
                                                                              EDYTHE NASH GAISER, CLERK
vs.) No. 18-0813 (Marshall County 18-F-45 & 46)                               SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA


Jason McClain Phillips,
Defendant Below, Petitioner



                              MEMORANDUM DECISION


        Petitioner Jason McClain Phillips, by counsel Brett M. Ferro, appeals the Circuit Court of
Marshall County’s August 24, 2018, order sentencing him to an effective term of two to eight
years of incarceration following the entry of his guilty plea to one count of third or subsequent
offense driving while revoked for driving under the influence of alcohol (“DUI”) and one count
third or subsequent offense domestic battery. The State of West Virginia, by counsel Scott E.
Johnson, filed a response in support of the circuit court’s order. On appeal, petitioner argues that
the circuit court committed plain error in considering an impermissible factor at sentencing and
abused its discretion in sentencing him to consecutive, rather than concurrent, prison terms.

        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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        In July of 2018, the Marshall County Grand Jury returned a three-count indictment
against petitioner charging him with one count of third or subsequent offense driving under the
influence of alcohol, one count of third or subsequent offense driving while revoked for DUI,
and one count of third or subsequent offense domestic battery. On July 27, 2018, petitioner
entered into a plea agreement with the State wherein he pled guilty to one count of third or
subsequent offense driving while revoked for DUI and one count of third or subsequent offense
domestic battery in exchange for the State’s agreement to dismiss the remaining count in the
indictment and refrain from filing a recidivist information.

        Petitioner’s sentencing hearing was held on August 22, 2018. At the sentencing hearing,
petitioner requested assistance in seeking treatment for his issues with alcohol abuse. Counsel for

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petitioner argued that the circuit court should sentence petitioner to home incarceration for the
third or subsequent offense driving while revoked for DUI charge and suspend his sentence for
the other charge. The State requested that the circuit court sentence petitioner to consecutive
sentences of incarceration given petitioner’s long history of alcohol abuse and criminal activity.
Specifically, the State noted that petitioner had an eleven-page criminal history, including
between eight and ten misdemeanors and at least two prior felonies. The State advised the court
that petitioner’s blood alcohol content was .224 at the time he was arrested for the domestic
battery charge, which was described as “very severe.” Petitioner’s blood alcohol content when he
was arrested for driving under the influence was also high at .231. The State argued that, despite
admitting to struggling with alcohol abuse issues for nearly twenty years, petitioner had only
sought the assistance of Alcoholics Anonymous meetings twice during that time and further
opined that “the only reason he’s seeking help now is because he’s facing two felony charges
that he pled to, and he’s looking at a significant amount of [prison] time.” The circuit court also
considered the presentence investigation report and a letter from petitioner’s mother pleading for
leniency. On its own, the circuit court brought up petitioner’s Facebook pages, read several
posts, and asked petitioner whether he had authored them. Petitioner conceded that he had
authored the posts, but claimed that he did not take Facebook seriously and that the posts were
jokes. The circuit court clarified “I’m not sentencing you based on these. I wanted to see who
you are and who you portrayed yourself to be.”

        The circuit court sentenced petitioner to not less than one nor more than three years of
incarceration for the third or subsequent offense driving while revoked for DUI charge and not
less than one nor more than five years of incarceration for the third or subsequent offense
domestic battery charge based upon the “totality of the circumstances,” further noting that this
was petitioner’s third conviction for driving while revoked for DUI and that he was “going to kill
somebody.” Petitioner’s sentences were memorialized in the circuit court’s August 24, 2018,
sentencing order, and it is from this order that he appeals.

         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.
Adams, 211 W. Va. 231, 565 S.E.2d 353 (2002). We have also 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.”1 Syl. Pt. 4, State v. Goodnight, 169 W. Va. 366, 287 S.E.2d 504
(1982).

        On appeal, petitioner argues that the circuit court committed plain error by considering
petitioner’s Facebook pages at sentencing. According to petitioner, the Facebook pages were
impermissibly considered as they were outside the purview of Rule 32 of the West Virginia
Rules of Criminal Procedure. Petitioner contends that Rule 32(b) does not permit a circuit court
to consider anything beyond the presentence investigation conducted by a probation officer.2


       1
           It is undisputed that petitioner’s sentences were within statutory limits.
       2
           In relevant part, Rule 32(b)(1) sets forth that

                                                                                        (continued . . .)
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Petitioner claims that the circuit court’s comment that it was sentencing petitioner based upon the
totality of the circumstances meant that the Facebook pages were included in its consideration,
and that his rights were substantially affected because the circuit court ordered his sentences to
run consecutively rather than concurrently. Lastly, petitioner argues that the fairness of the
sentencing hearing was seriously affected because he was not able to “cross-examine” the court
regarding the Facebook pages. Based on the foregoing, petitioner concludes that the circuit court
committed plain error and that his sentences should be vacated.

        Because petitioner’s counsel did not object to the circuit court’s references to petitioner’s
Facebook pages below, his counsel relies upon a plain error analysis. This Court has long held
that the “‘plain error’ doctrine grants appellate courts, in the interest of justice, the authority to
notice error to which no objection has been made.” State v. Miller, 194 W. Va. 3, 18, 459 S.E.2d
114, 129 (1995). “To trigger [the] 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.” Id. at 6, 459 S.E.2d at 117, syl. pt. 7.

        We find no merit to petitioner’s claim that the circuit court committed plain error in
reviewing petitioner’s Facebook pages in preparation for his sentencing hearing. Petitioner’s
reliance upon Rule 32 of the West Virginia Rules of Criminal Procedure is misplaced. Although
this rule sets forth when a probation officer shall prepare a presentence investigation report and
what the contents of the report should be,3 it in no way can be construed to mean that the circuit


       (b) Presentence Investigation and Report.

       (1) When Made. The probation officer shall make a presentence investigation and
       submit a report to the court before the sentence is imposed, unless:

       (A) the defendant waives a presentence investigation and report;

       (B) the court finds that the information in the record enables it to meaningfully
       exercise its sentencing authority; and

       (C) the court explains on the record its finding that the information in the record
       enables it to meaningfully exercise its sentencing authority.

Petitioner concedes that the circuit court “could, and maybe even should, have directed the
[c]ourt’s probation officer to review any [Facebook] pages.”
       3
           Rule 32(b)(4) provides that the presentence report must contain

       (A) information about the defendant’s history and characteristics, including
       information concerning the defendant’s court and criminal record, occupation,
       family background, education, habits and associations, mental and physical
       condition, the names, relationships, ages and condition of those dependent upon

                                                                                     (continued . . .)
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court may only consider the presentence investigation report. To the contrary, we have
previously noted that

       [a]s a general matter, “[t]he rules of evidence . . . do not strictly apply at
       sentencing hearings.” State v. Combs, No. CA2000–03–047, 2005 WL 941133, at
       *2 (Ohio Ct.App.2005). . . . Moreover, “[a] trial court has wide discretion in the
       sources and types of evidence used in determining the kind and extent of
       punishment to be imposed. And a sentencing court is not restricted by the federal
       constitution to the information received in open court.” Elswick v. Holland, 623
       F.Supp. 498, 504 (S.D.W.Va.1985) (citations omitted).

State ex rel. Dunlap v. McBride, 225 W. Va. 192, 202, 691 S.E.2d 183, 193 (2010). Accordingly,
petitioner’s claim that the circuit court was limited to only considering the presentence
investigation report at sentencing is without merit.

        We conclude that no error occurred. Contrary to petitioner’s claim that the circuit court
considered the Facebook posts under the “totality of the circumstances,” the circuit court clearly
stated “I’m not sentencing you based on these [Facebook posts]. I wanted to see who you are and
who you portrayed yourself to be.” Moreover, the record is rife with examples of the permissible
factors considered by the circuit court in sentencing petitioner. Petitioner noted his nearly
twenty-year battle with alcohol abuse and his mere two attempts to address these issues. Further,
the State presented petitioner’s eleven-page criminal history, including eight to ten
misdemeanors and at least two prior felonies. The State also advised the court of petitioner’s
blood alcohol content at the time of his arrests for two of the underlying charges, which was very
high on both occasions. In considering an appropriate sentence, the circuit court opined
“[y]ou’ve got an 11-page Triple I. Apparently whatever any other judge or magistrate . . . has
done hasn’t been enough to specifically deter you from anything.”4 The circuit court also noted


       the defendant for support and any circumstances that, because they affect the
       defendant’s behavior, may be helpful in imposing sentence, determining the
       propriety and conditions of release on probation, or determining correctional
       treatment;

       (B) a victim impact statement, pursuant to Chapter 61, Article 11A, Section 3 of
       the West Virginia Code of 1931, as amended, unless the court orders otherwise, if
       the defendant, in committing a felony or misdemeanor, caused physical,
       psychological or economic injury or death of the victim; and

       (C) any other information required by the court.

       4
        The Interstate Identification Index, or “Triple I,” is “an index-pointer system that allows
for the exchange of criminal history records (‘rap sheets’). The [Triple I] stores the criminal
history records of Federal offenders and those offenders submitted by participating and

                                                                                   (continued . . .)
                                                4
that petitioner was “going to kill somebody,” given his continued driving under the influence of
alcohol. Based upon the totality of these circumstances, the circuit court sentenced petitioner to
an effective two-to-eight-year sentence, which was within statutory limits. To the extent that
petitioner argues that his sentences should have been ordered to run concurrently rather than
consecutively, we note that

               “‘“[w]hen a defendant has been convicted of two separate crimes, before
       sentence is pronounced for either, the trial court may, in its discretion, provide
       that the sentences run concurrently, and unless it does so provide, the sentences
       will run consecutively.” Syllabus point 3, Keith v. Leverette, 163 W.Va. 98, 254
       S.E.2d 700 (1979).’ Syllabus Point 3, State v. Allen, 208 W.Va. 144, 539 S.E.2d
       87 (1999).” Syl. Pt. 7, State ex rel. Farmer v. McBride, 224 W.Va. 469, 686
       S.E.2d 609 (2009).

Syl. Pt. 4, State v. Marcum, 238 W. Va. 26, 792 S.E.2d 37 (2016). As such, it was entirely within
the circuit court’s discretion to order that petitioner’s sentences run consecutively. We find no
error given the circuit court’s clear comment that it was not sentencing petitioner based upon the
Facebook posts and the strength of the factors actually relied upon by the court in sentencing
petitioner.

        Because we find no error, we need not address the remaining factors of the plain error
doctrine analysis. Nevertheless, even assuming for the sake of argument that there was an error
that was plain and affected his substantial rights, petitioner’s claims still fail as he fails to prove
that the circuit court’s consideration of his Facebook pages “seriously affect[ed] the fairness,
integrity, or public reputation of the judicial proceedings.” Here, petitioner conceded that he was
given an opportunity to address the circuit court’s questions regarding his Facebook pages,
including the ability to deny that he authored the posts. Further, petitioner concedes that the
circuit court could have, and “maybe should have,” directed the probation officer to look at
petitioner’s Facebook pages to determine whether that information warranted inclusion in the
presentence investigation report, see n. 2, which clearly was within the court’s consideration.
Lastly, as noted above, there were significant factors apart from petitioner’s Facebook posts
which supported his sentence. Accordingly, if any error occurred, we find it to be harmless.

       For the foregoing reasons, the circuit court’s August 24, 2018, sentencing order is hereby
affirmed.

                                                                                            Affirmed.



non‑participating [Triple I] States.” Privacy Impact Assessment for the Fingerprint Identification
Records System (FIRS) Integrated Automated Fingerprint Identification System (IAFIS)
Outsourcing           for     Noncriminal        Justice     Purposes        -       Channeling,
https://www.fbi.gov/services/information-management/foipa/privacy-impact-assessments/firs-
iafis (last visited September 30, 2019).



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ISSUED: January 17, 2020

CONCURRED IN BY:

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




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