1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia, 

Plaintiff Below, Respondent 

vs.) No. 19-0315 (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 

response 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 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 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 Grand Jury 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, the grand jury 

returned an indictment1that charged 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 grand jury returned a multi-count indictment2against 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 VIRGINIA
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of alcohol; fleeing from an officer in a vehicle with reckless disregard; driving while in an impaired 

state; driving while license suspended; disorderly conduct; and obstructing an officer. Also on May 

11, 2018, the grand jury returned an indictment3against petitioner and two co-defendants for 

incidents that occurred on or about August 28, 2017. 

On September 11, 2018, the grand jury returned a superseding indictment4for 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. The superseding indictment provided that petitioner and 

two co-defendants presented a firearm, which was used to shoot victim, Angelia Jones, and 

demanded an unspecified amount of money from her 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 proceeded 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-defendants 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, petitioner 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 held 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 attempted to minimize his involvement and mislead the court about who had shot the 

victim. The circuit court also noted that petitioner had been subsequently charged 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

Indictment 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 plea of guilty, the remaining counts of 18-F-71 were dismissed 

and 18-F-70 was dismissed in its entirety.
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felony;6sixty years for attempted robbery;7one to five years for unlawful assault;8two to ten years 

for assault during the commission of a felony;9and one to three years for fleeing from an officer 

in a vehicle and causing bodily harm.10 All sentences were ordered to run concurrently except that 

the circuit court directed that the sentence for attempted armed robbery run consecutively to the 

other sentences. This appeal followed.

On appeal, petitioner 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 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).” Syl. Pt. 2, in part, State v. Eilola, 226 W. Va. 

698, 704 S.E.2d 698 (2010). Furthermore, “‘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).” 

Eilola, 226 W. Va. at 699, 704 S.E.2d at 699, syl. pt. 1. Petitioner argues that the circuit court’s 

sentencing order is 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 affects 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 vindictively in 

penalizing 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 (1986) (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.
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right, instead noting that the circumstances of each 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 courts must also consider “the need for flexibility and 

discretion in the sentencing 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 court 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 

evidence 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 reflects

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 shooting, misconduct 

which the sentencing court may consider since it reflects 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 sentencing 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 if 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, however, 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 the 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.”)
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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