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, se ntencing order followi ng 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 ci rcuit 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 deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21

of the Rules of A ppellate Procedure.

On September 20, 2016, petitioner was indict ed on one count each of first-degree robbery, burglary, assault during the commission of a felony, a nd 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 du ring 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 pr etrial conference on Decembe r 12, 2016, at which petitioner’s counsel noted, for the record, that petitioner had that day received a plea offer from the State.

1 Petitioner’s counsel filed a brief in accordan ce with Rule 10(c)( 10)(b) of the West Virginia Rules of Appellate Procedure, which prov ides 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 c lient’s interests.” 

### FILED
November 21, 2018

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 Under the terms of the offer, petitioner would pl ead guilty to each first-degree robbery charge and be sentenced to concurrent thirty-year te rms 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 wa s told was [twenty] from the beginning.” The court provided petitioner time to consider the ag reement 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 woul d 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 foll owing week when the parties could reappear to discuss the plea negotiations. 2 The court further invited petiti oner to reduce his oral motion to writing.

On December 19, 2016, the parties appeared befo re the court and announced that a plea agreement had been reached, with slightly di fferent 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 lesserterm 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 se ntence 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?” Petiti oner responded in the affirma tive. 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 di scovery and the strength of th e 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?

2 Petitioner’s counsel informed the court that , until petitione r’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 r eceived that discovery material. Counsel further explained that he anticipat ed receiving that discove ry 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 ar e the same.” The court inquired of petitioner, “[I]s this what you understand.” Petitioner stated, “Yes.”3 Petitioner responded, “Yes, Your Honor.” Petitioner also confirmed that no one had “promised or suggested that [he] would be rewarded in a ny fashion, other than the plea agreement, if [he came] in here to plead guilty.”

Further, the court advised petitioner of th e rights he would waiv e 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 wa nt 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 right s, 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 th ey 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 ha ve 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 orde red 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 pe riod 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 petitione r’s psychiatric and diagnostic ev aluation, 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 th at “[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

4 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 cl assification for a period not to exceed sixty days[.]4 substance of it that it was done with the inten tion 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 th e report, counsel for petitioner indicated that the examination was requ ested to determine whet her “any argument . . . could be made for diminished capacity.” Counsel stat ed that if the report a ddressed that issue, he and petitioner would like to revi ew it. The court stated, “I di dn’t sense the report was going to that issue, it was going more or less to psyc hological evaluation that would aid a judge in determining what the course of re habilitation should be.” The court reiterated that it did not want to “betray [the] professionals by releasing informa tion 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 sentenci ng. Petitioner expressed remorse and “ask[ed] that you please let me get my [t wenty-]year plea back.” Further, petitioner expressed his “belie[f] that the offer [he] was first give n 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 incarcerati on for each first-degree robbery conviction.

Petitioner’s sentence was memorialized in a Ju ly 26, 2017, sentencing order. For purposes of the instant appeal, the court reentered its sentenci ng order on October 31, 2017, and it is from this order that petit ioner appeals.

On appeal, petitioner argues th at 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 fa iling to release his psyc hiatric examination report. Petitioner states that “since such information pertains to [him], he believ es he should be entitled to review the same.”

With respect to petitioner’s first assignment of error, this Court out lined 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 couns el 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 st and 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 illegally5 obtained evidence and illegally obtain ed 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. Add itionally, 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 whethe r he understands the rights he is waiving by pleading guilty and whether there is any pres sure 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 re latives about his pl ea, 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 th e circuit court failed to comply with Call ; rather, petitioner complains that his pl ea was not voluntarily entered because he had requested new counsel and “he thought he had a twenty[-]year plea.” Petitioner ac knowledges that “the current record does not document a twenty[-]year plea o ffer[,]” but he, nonetheless, contends that the

circuit court should have been alerted to the fact that “som ething was awry” with counsel’s representation or petitio ner’s understanding of the plea agreement. The reco rd, 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 opport unity 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 assign ment 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 ar gues that he should be sentenced to an effective twenty-year term becau se his codefendant in one of the robberies was sentenced to ten ye ars 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). Artic le III, Section 5 of the West Virginia

5 Petitioner also claims that his plea offer was increased from twenty years to thirty years because the police officer who arrested him main tained 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.6 Constitution “contains the cruel and unusual punish ment counterpart to the Eighth Amendment of the United States Constitution, [and] has an expr ess statement of the proportionality principle: ‘Penalties shall be proportioned to the characte r and degree of the offe n[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 thos e 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-defendant s 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]our ts consider many factors such as each codefendant’s respective involvement in the crim inal transaction (inclu ding who was the prime mover), prior records, rehabilita tive 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, petitione r implicitly acknowledges that he and his codefendant are not similarly situated by rec ognizing 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 partic ipate. The circuit court also disc ussed petitioner’s lengthy criminal history and considered the presentence invest igation and psychiatric evaluation reports in concluding that concurrent thir ty-year sentences were appropriat e. We find that petitioner has

failed to establish that he and his codefendant ar e similarly situated. As a result, we find no error in the circuit court’s imposition of concurre nt thirty-year terms of incarceration.

In support of petitioner’s final assignment of error concerning the circuit court’s decision not to release his psyc hological 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 mi ght seriously disrupt a program of rehabilitation, sources of information obtained upon a promise of confidentiality or any other information wh ich, 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 opportuni ty to comment on the report, and, in the

6 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 tes timony or other information relating to any alleged factual inaccuracy contai ned 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 dia gnostic 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 ava ilable presentence report made regarding

the defendant.

171 W.Va. at 416, 299 S.E.2d at 27, Syl. Pt. 4. No tably, 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 correc tional authorities for inma te 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 hi s psychological evaluation re port. 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 presen tence investigation report, except to the extent

that it contains confid ential 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 re fusal to disclose a presentence report or diagnostic evaluation or po rtions thereof is with in 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 petiti oner. 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 adde d their psychological testing and diagnostic impressions.” 7 Petitioner was concerned solely with an y findings within the report that would allow him to argue for diminished capacity. The circuit court responded th at 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 sh ould 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 repor t’s contents, and because petitioner declined the opportunity to argue fo r 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 cour t’s October 31, 2017, rese ntencing order is hereby affirmed.

7 At sentencing, petitioner acknowledged prior r eceipt of the presentence investigation report and offered “no add itions or corrections.”8 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 sit ting by temporary assignment