                                                                               FILED
No. 17-0978 –State of West Virginia v. Travis Norwood                       June 7, 2019
                                                                              released at 3:00 p.m.
                                                                          EDYTHE NASH GAISER, CLERK
WALKER, Chief Justice, concurring:                                        SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA




              I agree with the majority’s conclusion that Mr. Norwood’s conviction should

be affirmed because (1) there was sufficient evidence to support his conviction for delivery

of a controlled substance; and (2) under the majority’s new syllabus point 6, his sentence

was legal. However, I write separately because I would affirm the circuit court’s decision

on the third issue, Mr. Norwood’s proportionality challenge, on the basis that he expressly

waived his constitutional right to make this challenge.



              The record is clear that the circuit court specifically gave Mr. Norwood an

opportunity to present a proportionality challenge and that he expressly waived the issue.

The circuit court determined that Mr. Norwood “freely, knowingly and voluntarily waived

any contest [to] the proportionality of the sentence imposed by statute.” Rather than

addressing this express waiver before considering the merits of the proportionality

challenge, the majority opinion relegates discussion of this issue to a footnote after its

analysis, stating, “We would also note that Defendant Norwood waived the Constitutional

challenge to his sentence below. The colloquy during the sentencing phased, couple with

the language in the circuit court’s October 10, 2017, [order] demonstrate that waiver.”



              It is well-established that “[a] criminal defendant can knowingly and

intelligently waive his constitutional rights,” if “such knowing and intelligent waiver is
conclusively demonstrated on the record.”1 In the instance where a party has made a

knowing and intelligent waiver, this Court has recognized that “there is no error and the

inquiry as to the effect of a deviation from the rule of law need not be determined.” 2

Because the circuit court concluded that Mr. Norwood had freely, knowingly and

voluntarily waived any contest to the proportionality of his sentence, I would have resolved

this issue on the basis of waiver. For this reason, I concur.




       1
           Syl. Pt. 2, in part, Call v. McKenzie, 159 W. Va. 191, 220 S.E.2d 665 (1975).
       2
           Syl. Pt. 8, in part, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).
