1 

STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS

State of West Virginia, 

Plaintiff Below, Respondent 

vs.) No. 17-1069 (Jefferson County 16-F-89 and 16-F-114) 

Nicholas Clinton Hess, 

Defendant Below, Petitioner 

MEMORANDUM DECISION 

Petitioner Nicholas Clinton Hess, by counsel Ben J. Crawley-Woods, appeals the Circuit 

Court of Jefferson County’s October 31, 2017, sentencing order following his first-degree 

robbery convictions.1 Respondent State of West Virginia, by counsel Robert L. Hogan, filed a 

response. On appeal, petitioner asserts that the circuit court committed reversible error in finding 

that his guilty plea was voluntarily entered, in sentencing him to thirty years of imprisonment, 

and in denying his motion to release his diagnostic evaluation report. 

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. 

On September 20, 2016, petitioner was indicted on one count each of first-degree 

robbery, burglary, assault during the commission of a felony, and conspiracy to commit robbery 

following his first-degree robbery of Kory Farmer on March 14, 2016. The next day, September 

21, 2016, petitioner and Jamar Wayne McDonald were indicted in a separate case on one count 

each of first-degree robbery, burglary, assault during the commission of a felony, and conspiracy 

to commit robbery. These charges stemmed from the first-degree robbery of Allen Tolliver. 

Petitioner robbed Mr. Tolliver only two days after robbing Mr. Farmer. In fact, petitioner used a 

gun to commit the second robbery that he stole from Mr. Farmer during the first robbery. 

The circuit court held a pretrial conference on December 12, 2016, at which petitioner’s 

counsel noted, for the record, that petitioner had that day received a plea offer from the State. 

                                                            

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Petitioner’s counsel filed a brief in accordance with Rule 10(c)(10)(b) of the West 

Virginia Rules of Appellate Procedure, which provides that “[i]n extraordinary circumstances, if 

counsel is ethically compelled to disassociate from the contentions presented in the brief, counsel 

must preface the brief with a statement that the brief is filed pursuant to Rule 10(c)(10)(b). 

Counsel should not inject disclaimers or argue against the client’s interests.”

 FILED 

 November 21, 2018 

EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
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Under the terms of the offer, petitioner would plead guilty to each first-degree robbery charge 

and be sentenced to concurrent thirty-year terms of incarceration. The remaining charges would 

be dismissed, and the State would further agree not to initiate recidivist proceedings. The court 

asked petitioner whether that was the agreement counsel just received and whether petitioner had 

seen it. Petitioner responded, “Yeah, what I was told was [twenty] from the beginning.” The 

court provided petitioner time to consider the agreement with his counsel and instructed the 

parties to appear the following week to either proceed with trial or enter into the plea agreement. 

Petitioner then stated, “Well, I would like to ask if the State could appoint me new counsel at this 

time please.” Because petitioner’s counsel only then learned of petitioner’s dissatisfaction, and 

because the court did not “have a motion before me except an oral motion right now[,]” the court 

deferred consideration of that motion until the following week when the parties could reappear to 

discuss the plea negotiations.2

 The court further invited petitioner to reduce his oral motion to 

writing. 

On December 19, 2016, the parties appeared before the court and announced that a plea 

agreement had been reached, with slightly different terms than those announced on December 

12, 2016. Namely, petitioner agreed to plead guilty to both first-degree robbery charges, but the 

State agreed that the sentence for each would be no more than thirty years, and petitioner was 

free to argue for a lesser term of incarceration.3

 The terms of the agreement were placed on the 

record, and the court explained to petitioner that the terms of the agreement included a 

sentencing cap of concurrent thirty-year terms, but that the minimum sentence was ten years. 

Petitioner confirmed that he understood these terms. 

Before accepting petitioner’s plea, the court asked petitioner whether he had “done [his] 

level best to make sure that [his attorney] understands everything that can help him be an 

effective lawyer for you?” Petitioner responded in the affirmative. Further, the court asked 

petitioner whether his lawyer has 

done what you hope and expect a good lawyer would do, has he spent time 

actually visiting with you, sat down and talked with you and listened to you and 

talked about the discovery and the strength of the State’s case and about the 

defenses and the strategies that you might have available to you at trial, basically 

given you the benefit of his advice? 

                                                            

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Petitioner’s counsel informed the court that, until petitioner’s request for new counsel, 

he was unaware of petitioner’s desire to have new representation. Counsel also said that he 

believed petitioner was “upset with me [because] I haven’t been out to see him with some 

discovery that was requested.” Counsel averred that he had not yet received that discovery 

material. Counsel further explained that he anticipated receiving that discovery at the close of the 

hearing and would visit petitioner to discuss the discovery with him. 

  

3

At the plea hearing, the prosecutor stated that “[t]his morning’s modification is that the 

[thirty-]year sentence that was spoke of in the plea agreement would be a cap and the [d]efendant 

would be free to argue for a lesser sentence but otherwise the conditions are the same.” The court 

inquired of petitioner, “[I]s this what you understand.” Petitioner stated, “Yes.” 
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Petitioner responded, “Yes, Your Honor.” Petitioner also confirmed that no one had “promised 

or suggested that [he] would be rewarded in any fashion, other than the plea agreement, if [he 

came] in here to plead guilty.” 

 Further, the court advised petitioner of the rights he would waive if he pled guilty. 

Petitioner entered his guilty plea, nonetheless, and executed a written plea form. Thereafter, the 

circuit court again ensured that the plea was voluntarily, knowingly, and intelligently entered: 

Now, I make a big deal about you can’t change your mind and then the 

very next thing I do every time is ask, are you sure you don’t want to change your 

mind. 

I am not trying to torment you, I do this in every case, but are you sure, we 

have gone over a lot of constitutional rights, and if you listen to them closely they 

are a beautiful bunch of rights when you’re charged with an offense. 

If what you really would like to do is have your day in court to come in 

and see if the State could prove what they claim against you, I would do my dead 

level best to make sure you got a full, fair and proper trial, the benefit of all those 

constitutional rights. And if you got convicted and you ended up going down and 

being convicted and sentenced on it, you have the right to appeal to the West 

Virginia Supreme Court of Appeals and make sure they thought you got a full, 

fair and proper trial. These are valuable rights. Are you sure you want to give up 

all those rights and stand upon this plea, [petitioner]? 

Petitioner again replied, “Yes, Your Honor.” The court, therefore, accepted petitioner’s plea and 

adjudged him guilty of the two first-degree robbery charges. 

 Prior to petitioner’s sentencing, the court ordered that, in aid of sentencing, petitioner be 

“remanded to the custody of the Commissioner of the Division of Corrections for the purpose of 

examination, diagnosis and classification for a period not to exceed sixty days as set forth in 

W.Va. Code § 62-12-7a.”4

 The court also ordered that the examination include a psychiatric 

evaluation. 

The parties appeared for sentencing on July 24, 2017. The court indicated that it had 

received the results of petitioner’s psychiatric and diagnostic evaluation, and that the report’s 

cover letter stated that the evaluators “strongly urge the [c]ourt to honor the confidential nature 

of these evaluation reports.” The court stated that “[i]t’s a psychological report in nature and 

contains candid assessments that would lead me to believe in the context of the cover and the 

                                                            

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West Virginia Code § 62-12-7a provides that 

when any person has been found guilty of, or pleads guilty to, a felony, or any 

offense described in article eight-d or eight-b, chapter sixty-one of this code, 

against a minor child, the court may, prior to pronouncing of sentence, direct that 

the person be delivered into the custody of the commissioner of corrections, for 

the purpose of diagnosis and classification for a period not to exceed sixty days[.] 
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substance of it that it was done with the intention that it be for the [c]ourt’s eyes only.” 

Accordingly, the court declined to provide a copy of this report to the parties. 

In addressing whether petitioner was entitled to receive a copy of the report, counsel for 

petitioner indicated that the examination was requested to determine whether “any argument . . . 

could be made for diminished capacity.” Counsel stated that if the report addressed that issue, he 

and petitioner would like to review it. The court stated, “I didn’t sense the report was going to 

that issue, it was going more or less to psychological evaluation that would aid a judge in 

determining what the course of rehabilitation should be.” The court reiterated that it did not want 

to “betray [the] professionals by releasing information especially submitted to [the court] with 

the assumption it would be for the [c]ourt’s eyes only[,]” but it offered to allow the parties to 

brief the issue of whether the report should be released for petitioner’s review. Petitioner’s 

counsel declined the opportunity and stated, “I think we are prepared to move forward.” 

Petitioner addressed the court at sentencing. Petitioner expressed remorse and “ask[ed] 

that you please let me get my [twenty-]year plea back.” Further, petitioner expressed his “belie[f] 

that the offer [he] was first given of [twenty] years is fair, but the [thirty] years I am currently 

being offered is extreme for what I have done.” The court noted the “exceedingly violent” 

manner in which petitioner committed the first robbery in particular and sentenced him to 

concurrent thirty-year terms of incarceration for each first-degree robbery conviction. 

Petitioner’s sentence was memorialized in a July 26, 2017, sentencing order. For purposes of the 

instant appeal, the court reentered its sentencing order on October 31, 2017, and it is from this 

order that petitioner appeals. 

On appeal, petitioner argues that his plea was involuntarily entered because he wanted 

new counsel and “he believes he originally had a twenty[-]year plea.” Petitioner also argues that 

his thirty-year sentence is unconstitutionally disproportionate based on the fact that his 

codefendant received a ten-year sentence for one robbery. Finally, petitioner claims that the 

circuit court erred in failing to release his psychiatric examination report. Petitioner states that 

“since such information pertains to [him], he believes he should be entitled to review the same.” 

With respect to petitioner’s first assignment of error, this Court outlined the procedures a 

circuit court should employ to ensure the voluntariness of a plea in Call v. McKenzie, 159 W.Va. 

191, 220 S.E.2d 665 (1975). Specifically, 

the trial judge should interrogate such defendant on the record with regard to his 

intelligent understanding of the following rights, some of which he will waive by 

pleading guilty: 1) the right to retain counsel of his choice, and if indigent, the 

right to court appointed counsel; 2) the right to consult with counsel and have 

counsel prepare the defense; 3) the right to a public trial by an impartial jury of 

twelve persons; 4) the right to have the State prove its case beyond a reasonable 

doubt and the right of the defendant to stand mute during the proceedings; 5) the 

right to confront and cross-examine his accusers; 6) the right to present witnesses 

in his own defense and to testify himself in his own defense; 7) the right to appeal 

the conviction for any errors of law; 8) the right to move to suppress illegally 
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obtained evidence and illegally obtained confessions; and, 9) the right to 

challenge in the trial court and on appeal all pre-trial proceedings. 

Id. at 191-192, 220 S.E.2d at 667, Syl. Pt. 3. Additionally, when a defendant pleads guilty 

pursuant to a plea bargain, “the trial court should spread the terms of the bargain upon the record 

and interrogate the defendant concerning whether he understands the rights he is waiving by 

pleading guilty and whether there is any pressure upon him to plead guilty other than the 

consideration admitted on the record.” Id. at 192, 220 S.E.2d at 667-68, Syl. Pt. 4. Finally, 

[a] trial court should spread upon the record the defendant’s education, 

whether he consulted with friends or relatives about his plea, any history of 

mental illness or drug use, the extent he consulted with counsel, and all other 

relevant matters which will demonstrate to an appellate court or a trial court 

proceeding in Habeas corpus that the defendant’s plea was knowingly and 

intelligently made with due regard to the intelligent waiver of known rights. 

Id. at 192, 220 S.E.2d at 668, Syl. Pt. 5. 

The record demonstrates that the circuit court questioned petitioner as required under 

Call. Indeed, petitioner does not argue that the circuit court failed to comply with Call; rather, 

petitioner complains that his plea was not voluntarily entered because he had requested new 

counsel and “he thought he had a twenty[-]year plea.” Petitioner acknowledges that “the current 

record does not document a twenty[-]year plea offer[,]” but he, nonetheless, contends that the 

circuit court should have been alerted to the fact that “something was awry” with counsel’s 

representation or petitioner’s understanding of the plea agreement. The record, however, is clear 

that petitioner understood he was facing a thirty-year cap on his sentence, not a twenty-year cap. 

Moreover, the record reflects that petitioner did not take the opportunity to reduce his request for 

new counsel to writing and, by the time he appeared for sentencing, was satisfied with counsel’s 

representation. Accordingly, we find no merit to petitioner’s claim that his plea was involuntarily 

entered.5

 In support of petitioner’s second assignment of error that his sentence is 

unconstitutionally disproportionate to the crimes committed, petitioner argues that, because “he 

committed twice the amount of robberies” as his codefendant committed, “he [should] be 

sentenced to twice the amount of prison time.” In other words, petitioner argues that he should be 

sentenced to an effective twenty-year term because his codefendant in one of the robberies was 

sentenced to ten years of incarceration. 

 This Court reviews sentencing orders “under a deferential abuse of discretion standard, 

unless the order violates statutory or constitutional commands.” Syl. Pt. 1, State v. Tyler, 211 

W.Va. 246, 565 S.E.2d 368 (2002) (citation omitted). Article III, Section 5 of the West Virginia 

                                                            

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Petitioner also claims that his plea offer was increased from twenty years to thirty years 

because the police officer who arrested him maintained a “personal grudge” against petitioner. 

As petitioner acknowledges, however, the record does not reflect that he was ever offered a 

twenty-year sentence. Thus, there is no merit to this claim. 
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Constitution “contains the cruel and unusual punishment counterpart to the Eighth Amendment 

of the United States Constitution, [and] has an express statement of the proportionality principle: 

‘Penalties shall be proportioned to the character and degree of the offen[s]e.’” Syl. Pt. 3, 

Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981) (citation omitted). “While 

our constitutional proportionality standards theoretically can apply to any criminal sentence, they 

are basically applicable to those sentences where there is either no fixed maximum set by statute 

or where there is a life recidivist sentence.” Id. at 523, 276 S.E.2d at 207, Syl. Pt. 4.6

Furthermore, “disparate sentences of co-defendants that are similarly situated may be considered 

in evaluating whether a sentence is so grossly disproportionate to an offense that it violates our 

constitution.” State v. Cooper, 172 W.Va. 266, 271-72, 304 S.E.2d 851, 856 (1983). But, 

“[d]isparate sentences for codefendants are not per se unconstitutional.” Syl. Pt. 2, State v. Buck, 

173 W.Va. 243, 314 S.E.2d 406 (1984). Rather, “[c]ourts consider many factors such as each 

codefendant’s respective involvement in the criminal transaction (including who was the prime 

mover), prior records, rehabilitative potential (including post-arrest conduct, age and maturity), 

and lack of remorse. If codefendants are similarly situated, some courts will reverse on disparity 

of sentence alone.” Id. at 244, 314 S.E.2d at 407, Syl. Pt. 2. 

 Although petitioner argues that he and his codefendant, who participated in the second 

robbery petitioner was convicted of committing, are similarly situated, he offers no facts to 

support such a conclusion. In fact, petitioner implicitly acknowledges that he and his 

codefendant are not similarly situated by recognizing that he “committed twice the amount of 

robberies” as his codefendant. At sentencing, the circuit court highlighted the “exceedingly 

violent” manner in which petitioner committed the first robbery – a robbery in which petitioner’s 

codefendant did not participate. The circuit court also discussed petitioner’s lengthy criminal 

history and considered the presentence investigation and psychiatric evaluation reports in 

concluding that concurrent thirty-year sentences were appropriate. We find that petitioner has 

failed to establish that he and his codefendant are similarly situated. As a result, we find no error 

in the circuit court’s imposition of concurrent thirty-year terms of incarceration. 

 In support of petitioner’s final assignment of error concerning the circuit court’s decision 

not to release his psychological examination report, he relies on State v. Byrd, 163 W.Va. 248, 

256 S.E.2d 323 (1979), and Hackl v. Dale, 171 W.Va. 415, 299 S.E.2d 26 (1982). In Byrd, we 

held that 

[w]here a presentence report has been prepared and presented the court 

shall, upon request, permit the defendant, or his counsel if he is so represented, 

prior to imposition of sentence, to read the report exclusive of any 

recommendation as to sentence, but not to the extent that in the opinion of the 

court the report contains diagnostic opinion which might seriously disrupt a 

program of rehabilitation, sources of information obtained upon a promise of 

confidentiality or any other information which, if disclosed, might result in harm, 

physical or otherwise, to the defendant or other persons and the court shall afford 

the defendant or his counsel an opportunity to comment on the report, and, in the 

                                                            

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The crime of first-degree robbery has no fixed maximum sentence. See W.Va. Code § 

61-2-12. 
7 

discretion of the court, to introduce testimony or other information relating to any 

alleged factual inaccuracy contained in the presentence report. 

163 W.Va. at 248-49, 256 S.E.2d at 323, Syl. Pt. 1. 

 In Hackl, we held that 

[i]n the absence of extraordinary circumstances a trial court which directs 

a criminal defendant to presentence diagnostic procedures under the provision of 

W.Va. Code, 62-12-7a, or sentences a defendant to the penitentiary, should 

include with the commitment order copies of any psychological or other 

diagnostic reports together with any available presentence report made regarding 

the defendant. 

171 W.Va. at 416, 299 S.E.2d at 27, Syl. Pt. 4. Notably, we did not direct that the defendant 

receive a copy of the report in Hackl; rather, we directed that the psychological or diagnostic 

report be provided to correctional authorities for inmate classification purposes. Id. at 419, 299 

S.E.2d at 30. Nonetheless, petitioner asserts that when read together, Byrd and Hackl compel the 

conclusion that he is entitled to a copy of his psychological evaluation report. We disagree and 

find no error. 

 In State v. Plumley, 184 W.Va. 536, 401 S.E.2d 469 (1990), we stated that “[g]enerally, a 

defendant has a right to read and review his presentence investigation report, except to the extent 

that it contains confidential or harmful information[,]” and that a diagnostic evaluation 

performed under West Virginia Code § 62-12-7a “is to be treated in the same manner as a 

presentence report.” Id. at 542, 401 S.E.2d at 475. But “[t]he refusal to disclose a presentence 

report or diagnostic evaluation or portions thereof is within the sound discretion of the trial court, 

and consequently, must be accorded great deference.” Id. We find no abuse of discretion in the 

circuit court’s refusal to provide the psychiatric evaluation report to petitioner. The circuit court 

summarized portions of the report, noting that “something tells me they took the PSI and copied 

it word-for-word to a degree and then added their psychological testing and diagnostic 

impressions.”7

 Petitioner was concerned solely with any findings within the report that would 

allow him to argue for diminished capacity. The circuit court responded that the report did not 

speak to that issue, but was “more or less [a] psychological evaluation that would aid a judge in 

determining what the course of rehabilitation should be.” The court, however, offered petitioner 

the opportunity to brief the issue of whether he should receive a copy of the report. Critically, 

petitioner declined that opportunity and stated, “I think we are prepared to go forward [with 

sentencing].” Because the court addressed the report’s contents, and because petitioner declined 

the opportunity to argue for release of the report, we find no error in the court’s decision to 

preserve the confidentiality of the report. 

For the foregoing reasons, the circuit court’s October 31, 2017, resentencing order is 

hereby affirmed. 

                                                            

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At sentencing, petitioner acknowledged prior receipt of the presentence investigation 

report and offered “no additions or corrections.” 
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Affirmed. 

ISSUED: November 21, 2018 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Elizabeth D. Walker 

Justice Tim Armstead 

Justice Evan H. Jenkins 

Justice Paul T. Farrell sitting by temporary assignment