1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia,

Plaintiff B elow
, Respondent

v s

. ) No. 1 9

- 0 315 (Fayette County 18

- F

- 71 and 18

- F

- 168 )

Bryan Keith Allen

, Defendant Below, Petitioner



### MEMORANDUM DECISION

Petitioner Bryan Keith Allen , by counsel Matthew D. Brummond

, appeals the February 28

, 2019

, Sentencing and Commitment Order of the Circuit Court of Fayette County , challenging the constitutionality of his sentence. The State of West Virginia, by counsel Mary Beth Niday , filed a

respon se in support of the circuit court’s order. Petitioner filed a reply.

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 brief s, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,

a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

This matter stems from multiple indictments against petitioner that were returned by the Fayette County G rand J ur y on May 10, 2018, May 11, 2018, and September 11, 2018 , and that were based upon criminal conduct that occurred in August 2017

. On May 10, 2018, t he g rand j ury returned an i ndictment 1 that char ged petitioner with two counts of wanton endangerment involving a firearm; one count of discharging a firearm within 500 feet of a dwelling; and one count of injury to property for having fired a gun within 500 feet of the dwelling house of Rick Burgess, resulting in substantial risk of death or serious bodily injury to Rick and Barbara Burgess. On May 11, 2018,

the g rand j ury returned a multi

- count indict ment 2 against petitioner for fleeing from an officer in a vehicle and causing bodily injury; fleeing from an officer in a vehicle while under the influence

1 Indictment 18

- F

- 70 stemmed from petitioner’s criminal activity on or about August 14,

2017

. 2 Indictment 18

- F

- 71 stemmed from petitioner’s criminal activity on or about August 14,

2017

. 

### FILED June 18, 2020

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2

of alcohol; fleeing from an officer in a vehicle with reckless disregard; driving while in an impaired

st ate ; driving while license suspended; disorderly conduct; and obstructing an officer. Also on May 11, 2018

, the g rand j ury returned an indictment 3 against petitioner and two co

- defendants for

incident s that occurred on or about August 28, 2017.

On Septem ber 11, 2018, the g rand j ury returned a superseding indictment 4 for the August 28, 2017

, crimes , charging petitioner with conspiracy to commit a felony ; attempted robbery in the first degree ; malicious assault ; attempted murder ; wanton endangerment involving a firearm ; and assault in the commission of a felony

. T he superseding indictment provided that petitioner and

two co

- defendants presented a firearm

, which was used to shoot victim, Ang e lia Jones, and demanded an unspecified amount of money from h er against her will. Ms. Jones was struck in the face by petitioner and his co

- defendants and was shot in the stomach.

Petitioner rejected a plea offer from the State for the fleeing charge and proceed ed to trial. On the second day of trial, photographs of petitioner with a bloodied face from his arrest were found scattered around the courthouse and the circuit court declared a mistrial. Subsequently, petitioner proceeded to a joint jury trial with one of his co

- defendant s on the robbery indictment.

Following a two

- day trial, a jury convicted petitioner of conspiracy to commit a felony; attempted robbery in the first degree; unlawful assault, a lesser

- included offense of malicious assault; and assault during the commission of a felony. Thereafter, pet itioner entered into a plea agreement regarding the two remaining indictments, which was accepted on February 5, 2019. Per the plea agreement, petitioner pled guilty to fleeing from an officer in a vehicle and causing bodily injury. 5

The circuit court he ld a sentencing hearing on February 22, 2019 . During the hearing , the circuit court acknowledged that petitioner took some responsibility for his actions of being at the

scene
, but attempt ed to minimize his involvement and mislead the court about who had shot the

victim. The circuit court also noted that petitioner had been subsequent ly charge d with committing violence upon another inmate at the Southern Regional Jail. The circuit court found that to grant petitioner “probation on these offenses would duly depreciate the seriousness of the offenses. Also, you’re not, do not appear to be a sufficient candidate for alternative sentencing.” Thus, the circuit court sentenced petitioner as follows: one to five years in prison for conspiracy to commit a

3 I ndictment 18

- F

- 72 stemmed from petitioner’s criminal activity on or about August 28,

2017

.

4 Indictment 18

- F

- 168

.

5 As a result of petitioner’s pl ea of guilty, the remaining counts of 18

- F

- 71 were dismissed

and 18

- F

- 70 was dismissed in its entirety.3

felony; 6 sixty years for attempted robbery; 7 one to five years for unlawful assault; 8 two to ten years for assault during the commission of a felony; 9 and one to three years for fleeing from an officer in a vehicle and causing bodily harm. 10 All sentences were order ed to run concurrently except that the circuit court directed that the sentence for attempted armed robbery run consecutive ly to the

other sentences. This appeal followed.

On appeal

, p etitioner does not challenge his convictions but

, instead

, argues that the circuit court committed plain error when it sentenced him to an effective sentence of sixty

- three to seventy years in prison for exercising his constitutional right to a jury trial.

This Court reviews sentencing orders “‘ under a deferential abu se 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).” Syl. Pt. 2, in part, State v. Eilola , 226 W. Va. 698, 704 S.E.2d 698 (2010). Fur thermore, “‘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 .’ Syllabus Point 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).”

Eilola , 226 W. Va. at 699, 704 S.E.2d at 699, syl. pt. 1. Petitioner argues that the circuit court’s sentencing order i s based upon an impermissible factor and violates constitutional commands

.

Petitioner concedes that trial counsel did not object to his sentence below , but urges this

Court to review his alleged vindictive sentence under the plain error doctrine. “To trigger application of the ‘plain error’ doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously af fects the fairness, integrity, or public reputation of the judicial proceedings.” Syl. Pt. 7, State v. Miller , 194 W. Va. 3, 459 S.E.2d 114 (1995). Petitioner argues that his sentence is unconstitutional because the circuit court acted vindictive ly in

pen alizing petitioner for exercising his right to a trial by jury instead of accepting a plea deal. We

find that the plain error doctrine does not apply and, thus , we refuse to disturb the circuit court’s sentencing order.

The United States Supreme Court has “held that the Due Process Clause of the Fourteenth Amendment prevented increased sentences when that increase was motivated by vindictiveness on the part of the sentencing judge.” Texas v. McCullough, 475 U.S. 134, 137 (198 6 ) (citing North

Carolina v. Pearce

, 395 U.S. 711(1969)

. However, the Supreme Court has cautioned that due process is not offended every time a defendant receives a harsher sentence after exercising a legal

6 Count one of Indictment 18

- F

- 168.

7 Count two of Indictment 18

- F

- 168.

8 Count three of Indictment 18

- F

- 168.

9 Count six of Indictment 18

- F

- 168.

10 Indictment 18

- F

- 71.4

right, instead noting that the circumstances of e ach case must be examined “to ‘guard against vindictiveness in the resentencing process.’” (quoting Chaffin v. Stynchcombe , 412 U.S. 17, 25 (1973)). The Chaffin court found that court s must also consider “the need for flexibility and

discretion in the sent encing process.” Id. at 25. 11

Petitioner maintains that the circuit court specifically stated that he was being penalized for exercising his constitutional right to a jury trial ; however

, his argument is premised on an isolated statement by the circuit cou rt about probation. Reviewing the record on appeal, we disagree with petitioner’s summation. While it is unconstitutional for a trial court to punish a defendant for exercising his constitutional right to proceed to a trial by jury, the overwhelming

eviden ce in this case clearly demonstrates that the circuit court did not punish petitioner for proceeding to trial . Rather, the court found that “to grant [petitioner] probation on these offenses would duly depreciate the seriousness of the offenses. Also, you’re not, do not appear to be a sufficient candidate for alternative sentencing.” The transcript from the sentencing hearing reflect s that the circuit court was concerned about petitioner’s failure to accept responsibility. Although petitioner initially showed remorse, he attempted to minimize his involvement and mislead the

court as to who possessed and fired the firearm, injuring both the victim and one co

- defendant. He also beat another inmate after being arrested on the charges surrounding the shooti ng, misconduct which the sentencing court may consider since it reflect s upon the defendant’s rehabilitative potential and the veracity of his or her acceptance of responsibility. Thus, the record from the sentencing hearing demonstrates that the sentencin g judge did not punish petitioner for pursuing

his constitutional rights. We, thus, find that the circuit court did not err in sentencing petitioner

.

For the foregoing reasons, we affirm.

Affirmed.

11 Petitioner claims that the circuit court specifically stated that the sentence was vindictive.

The United States Supreme Court of Appeals has held that i f a defendant can show that a “‘reasonable likelihood,’ . . . that the increase in sentence is the product of actual vindictiveness

, ” then his amended sentence is presumed to have been vindictive. Alabama v. Smith , 490 U.S. 794, 799 (1989) (internal citation omitted) . Notably, howeve r, the presumption is not easily obtained

and it “ does not apply in situations where the possibility of vindictiveness is . . . speculative, particularly since the presumption may often ‘operate in the absence of any proof of an improper

motive and thus

. . . block a legitimate response to criminal conduct.” McCullough , 475 U.S. at 139. Absent the presumption, a defendant’s claim becomes more difficult to prove. If a defendant fails to show a reasonable likelihood of actual vindictiveness, then he retains t he burden of proving his claim and must prove actual vindictiveness by the sentencing judge

. Then, the State must “rebut the presumption that an increased sentence . . . resulted from vindictiveness [

. ] ” Wasman v. United

States , 468 U.S. 559, 569 (1984). We conclude that petitioner has failed to demonstrate a
“reasonable likelihood” of actual vindictiveness. See Smith, 490 U.S. at 799. (“Where there is no such reasonable likelihood, the burden remains upon the defendant to prove actual vindictiveness.”)5

ISSUED: June 18, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison