IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2020 Term

_____________

No. 18-0481

_____________

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

JUSTICE JENKINS delivered the Opinion of the Court.

James T. Kratovil

Kratovil Law Offices PLLC

Charles Town, West Virginia

Attorney for the Petitioner

Patrick Morrisey 

Attorney General 

Lara K. Bissett

Assistant Attorney General

Charleston, West Virginia

Attorneys for the Respondent

FILED

June 1, 2020

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
i

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).
1

Jenkins, Justice:

Petitioner Kristafer Avery Bleck (“Mr. Bleck”) appeals from an order1 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 charge3

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. 
2

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.
3

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 
4

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

knowingly, and voluntarily.” 

On March 23, 2018, the pre-sentence5 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:
5

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.
6

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 
7

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. 
8

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.
9

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. 
10

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, 
11

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)).
12

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 
13

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).
14

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 
15

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. 
16

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 
17

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.