IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2022 Term

_____________

No. 20-0706

_____________

STATE OF WEST VIRGINIA,

Plaintiff Below, Respondent,

V.

SCOTTY JOSEPH BYERS,

Defendant Below, Petitioner.

________________________________________________

Appeal from the Circuit Court of Wood County

The Honorable Jason Wharton, Judge

Criminal Action No. 19-F-125

VACATED AND REMANDED WITH INSTRUCTIONS

________________________________________________

Submitted: May 3, 2022

Filed: June 14, 2022

JUSTICE BUNN delivered the Opinion of the Court.

JUSTICE ARMSTEAD dissents and reserves the right to file a dissenting opinion. 

Graham B. Platz, Esq.

Crystal L. Walden, Esq.

Public Defender Services

Charleston, West Virginia

Attorneys for the Petitioner 

Patrick Morrisey, Esq.

Attorney General

Andrea Nease Proper, Esq.

Assistant Attorney General

Scott E. Johnson, Esq.

Assistant Attorney General

Charleston, West Virginia

Attorneys for the Respondent

FILED

June 14, 2022

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. “Due process of law as guaranteed by the State and Federal 

Constitutions requires that a party be accorded the right to be present in person or by 

counsel during all trial proceedings.” Syllabus point 2, Sisler v. Hawkins, 158 W. Va. 1034, 

217 S.E.2d 60 (1975).

3. A defendant has a due process right to be present at all critical stages 

of a criminal proceeding pursuant to Article III, Section 10 of the West Virginia 

Constitution and the Fifth Amendment of the United States Constitution.

4. “[West Virginia Code] 1931, 62-3-2 requires that one accused of a 

felony shall be present at every stage of the trial during which his interest[s] may be 

affected; and if anything is done at trial in the accused’s absence which may have affected 

him by possibly prejudicing him, reversible error occurs.” Syllabus point 3, State ex rel. 

Grob v. Blair, 158 W. Va. 647, 214 S.E.2d 330 (1975).
ii

5. A defendant has a due process right to be present at the imposition of 

sentence pursuant to Rule 43(a) of the West Virginia Rules of Criminal Procedure, West 

Virginia Code § 62-3-2 (1923), and both Article III, Section 10 of the West Virginia 

Constitution and the Fifth Amendment of the United States Constitution. This general rule 

is limited by the exceptions in Rule 43(b) and (c) of the West Virginia Rules of Criminal 

Procedure.

6. “This Court is not obligated to accept the State’s confession of error 

in a criminal case. We will do so when, after a proper analysis, we believe error occurred.” 

Syllabus point 8, State v. Julius, 185 W. Va. 422, 408 S.E.2d 1 (1991).

7. Upon a defendant’s timely objection, compelling a defendant to 

appear by video conference, rather than in person, at the imposition of sentence violates 

that defendant’s right to be present at a critical stage of the criminal proceedings.

8. “[A]n accused, by declaration and conduct, may waive a fundamental 

right protected by the Constitution [such as the common-law/statutory right of presence] if 

it is demonstrated that such waiver was made knowingly and intelligently.” Syllabus point 

7, in part, State ex rel. Grob v. Blair, 158 W. Va. 647, 214 S.E.2d 330 (1975).

9. When there has been a violation of a defendant’s due process right to 

be present at sentencing pursuant to Article III, Section 10 of the West Virginia 
iii

Constitution, such violation is reversible error unless the State can prove beyond a 

reasonable doubt that the violation was harmless.
1

Bunn, Justice:

Petitioner Scotty Joseph Byers (“Mr. Byers”) appeals from the August 14, 

2020 sentencing order of the Circuit Court of Wood County. On June 4, 2020, the circuit 

court held a sentencing hearing, with Mr. Byers and his counsel participating by video 

conference. During the hearing, Mr. Byers was sentenced on his convictions, pursuant to a 

plea agreement, of three counts of failure to register as a sexual offender and one count of 

fleeing from an officer. At the outset of the hearing, Mr. Byers, through counsel, informed 

the circuit court that he objected to appearing by video conference and wished to appear at 

his sentencing hearing in person. The circuit court noted the objection, overruled it, and 

proceeded to conduct the sentencing hearing with Mr. Byers and his counsel participating 

by video conference. On appeal, Mr. Byers contends that the circuit court erred in failing 

to allow him to be physically present for his sentencing hearing in violation of his right to 

be present at the imposition of his sentence pursuant to Rule 43 of the West Virginia Rules 

of Criminal Procedure, West Virginia Code § 62-3-2 (1923), and both the West Virginia 

and United States Constitutions.

Upon careful consideration of the briefs submitted on appeal, the appendix 

record, the parties’ oral arguments, and the applicable legal authority, we find that Mr. 

Byers’s right to be present at the imposition of his sentence was violated, and, under the 

circumstances of this case, this violation was not harmless error. Consequently, this Court 

vacates the circuit court’s August 14, 2020 sentencing order and remands this matter to the 

circuit court to hold a sentencing hearing consistent with the principles set forth herein. 
2

I.

FACTUAL AND PROCEDURAL HISTORY

In May 2019, a Wood County grand jury indicted Mr. Byers on two counts 

of failure to register as a sexual offender,

1 second offense, and one count of failure to 

appear2 as required for a preliminary hearing in Wood County Magistrate Court.3 In 

February 2020, Respondent State of West Virginia (“the State”) filed an information 

charging Mr. Byers with an additional count of failure to register as a sexual offender, first 

offense, and one count of fleeing from an officer on foot.

4 The State and Mr. Byers then 

entered into a plea agreement whereby Mr. Byers pleaded guilty to (1) two counts of failure 

to register as a sexual offender, first offense, as lesser included offenses to counts one and 

three of the indictment; (2) one count of failure to register as a sexual offender, first offense,

as charged in the information; and (3) one count of fleeing from an officer on foot as 

charged in the information. In exchange, the State agreed to (1) dismiss one count of failure 

to appear as contained in the indictment, (2) not prosecute Mr. Byers for any additional

failure to register offenses occurring before the entry of the plea, and (3) not prosecute Mr. 

1 See W. Va. Code § 15-12-8(c) (2006). The counts of failure to register as a 

sexual offender stem from Mr. Byers’s 2002 Wood County conviction for third-degree 

sexual assault, which required lifetime registration as a sexual offender.

2 See W. Va. Code §§ 62-1C-17b(a) and (b) (1984).

3 This preliminary hearing was in reference to Case No. 18-M54F-00524, 

which appears from the record to relate to a charge for failure to register as a sexual 

offender. 

4 See W. Va. Code § 61-5-17(d) (2019).
3 

Byers for a pending but unrelated charge of possession with intent to distribute. Mr. Byers 

further agreed to pay restitution as determined by the circuit court and to be forthright and 

truthful regarding “all inquiries made pursuant to [the] agreement.” There were no 

agreements as to sentencing. The circuit court held a change of plea hearing wherein it 

accepted Mr. Byers’s guilty pleas as outlined above. At the conclusion of the hearing, Mr. 

Byers moved the circuit court to grant him alternative sentencing. The court took the 

motion under advisement. 

Following the acceptance of Mr. Byers’s pleas, the circuit court scheduled 

his sentencing hearing for April 22, 2020; however, the sentencing hearing was postponed 

due to the COVID-19 global pandemic. On May 6, 2020, the circuit court entered an order

relying on the judicial emergency orders entered by this Court,

5 and held that “in 

5 On March 16, 2020, this Court issued an administrative order directing the 

state courts to, except for emergency matters, hold hearings remotely through telephonic 

or video technology, if appropriate, or to postpone all hearings until after April 10, 2020,

due to public safety concerns about COVID-19. See Supreme Court of Appeals of West 

Virginia, Administrative Order (Mar. 16, 2020). Then, on March 22, 2020, we issued 

another administrative order declaring a judicial emergency from March 23, 2020 through 

April 10, 2020, “to protect the health and well-being of [C]ourt employees, litigants, 

witnesses, jurors, attorneys, and the general public[.]” See Supreme Court of Appeals of 

West Virginia, Administrative Order, Re: Judicial Emergency Declared (Mar. 22, 2020). 

This administrative order set forth certain guidelines as to how court proceedings should 

be handled during the judicial emergency. Id. On April 3, 2020, this Court amended the 

March 22, 2020 administrative order and extended the judicial emergency through May 1, 

2020. See Supreme Court of Appeals of West Virginia, Administrative Order, Re: Judicial 

Emergency Declared, Amended Order (Apr. 3, 2020). A final amended order was issued 

on April 22, 2020, which extended the judicial emergency once more through May 15, 

2020. See Supreme Court of Appeals of West Virginia, Administrative Order, Re: Judicial 

Emergency Declared, Second Amended Order (Apr. 22, 2020).
4 

accordance with the Constitution of West Virginia, rules of procedure, the West Virginia 

Code, applicable case law precedent[,] and the [administrative orders]” the matter and any 

related hearings were continued to the May 2020 term of court. The circuit court further 

ordered that “this matter will return for scheduling purposes upon the lifting of the West 

Virginia Supreme Court declaration of Judicial Emergency at a date and time to be 

determined.” 

After the judicial emergency was lifted, the sentencing hearing was 

rescheduled for June 4, 2020.

6 At the June 4, 2020 sentencing hearing, the circuit court 

noted for the record the following appearances: Mr. Byers appeared by video conference 

from the North Central Regional Jail; Mr. Byers’s counsel appeared by video conference, 

from a different location than Mr. Byers; and the circuit court judge, the assistant 

prosecuting attorney, and a Wood County adult probation officer were physically present 

in the courtroom.7 The circuit court advised Mr. Byers that, upon his request, it would 

afford him the opportunity to speak with his attorney privately during the hearing by 

6 The record does not indicate how or when the sentencing hearing was 

rescheduled to June 4, 2020, or whether Mr. Byers was informed prior to the sentencing 

hearing that he was being compelled to appear through video conference rather than in 

person. 

7

 The circuit court notified the parties that there was another defendant on the 

video conference who was waiting for the next hearing, which would occur through the 

same connection. The circuit court equated the other defendant’s presence to an individual 

physically sitting in the back of the courtroom. No parties objected to the other defendant’s 

presence, and his presence is not an issue on appeal. 
5 

disconnecting all other parties.

8 Mr. Byers, through counsel, objected to appearing by video 

conference. The following exchange occurred:

[MR. BYERS’S COUNSEL]: Your Honor, to start off, first I 

would just like to have noted for the record Mr. Byers’s 

objection to appearing by video. He obviously wanted to 

appear in person, but as the [c]ourt is aware, because of the 

pandemic situation, many hearings, including this one, are 

being done by video. We wanted that noted for the record. 

THE COURT: The objection is noted for the record. The 

[c]ourt believes that under the system that has been made 

available by the [S]upreme [C]ourt which is the Skype For 

Business that we are utilizing today, the [c]ourt is affording 

[Mr. Byers] the ability to speak privately with his [c]ounsel at 

any time which is needed. 

The [c]ourt has had that occur in previous cases and it has 

worked quite well and I am comfortable proceeding by video 

conference. So[,] the objection is noted, but overruled. 

Without further explanation for its ruling, the circuit court proceeded with the sentencing 

hearing. 

Mr. Byers’s counsel was given the opportunity to give a brief statement to 

the court. Counsel focused on Mr. Byers’s “great interest” in a substance abuse program, 

stemming from his struggles with drug and alcohol abuse over a significant period, which 

played a part in his prior offenses. In support for his previous motion for alternative 

sentencing, including probation or home confinement, Mr. Byers’s counsel highlighted that 

8 The circuit court did not explain any additional logistics regarding the 

resumption of the hearing should Mr. Byers request a private conversation with his counsel. 
6

Mr. Byers recently had been affected by several events motivating him to remain drug and 

alcohol free, and emphasized that Mr. Byers would follow any conditions mandated by the 

court. Mr. Byers also testified on his own behalf and expressed remorse for his actions. He

voiced many of the same sentiments as his counsel regarding his drug and alcohol abuse 

and requested placement at a rehabilitation facility for treatment.

The State informed the court that it objected to probation or any other 

alternative sentencing. In support of its position, the State argued that Mr. Byers was 

already receiving leniency because two of the counts for failure to register had been 

reduced to lesser included offenses. The State also asserted that Mr. Byers had a history of 

criminal conduct and that his previous probation violations suggested that he would neither 

comply with probation nor refrain from engaging in additional criminal conduct. The State 

further requested that the circuit court run each of Mr. Byers’s sentences consecutively. 

After considering the arguments of both parties, the circuit court sentenced 

Mr. Byers as follows: for each count of failing to register as a sexual offender, first offense, 

not less than one nor more than five years of incarceration and for one count of fleeing 

from an officer, 216 days of incarceration.

9 The circuit court ordered the sentences for one 

9 The circuit court also recommended that Mr. Byers be permitted to 

participate in the Residential Substance Abuse Treatment for State Prisoners program while 

in the custody of the West Virginia Division of Corrections. However, after being informed 

by Mr. Byers that he had previously participated in the program and would be unable to do 

so again, the circuit court rescinded the recommendation. 
7

count of failure to register as a sexual offender and one count of fleeing from an officer to 

run concurrently with a credit of 216 days. The remainder of the sentences were ordered to 

run consecutively. On August 14, 2020, the circuit court entered a sentencing order 

memorializing its decision.10 This appeal followed. 

II.

STANDARD OF REVIEW

This Court has previously articulated the general 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). Here, Mr. Byers asserts that the circuit 

court violated his right to be present at his sentencing hearing. Because this issue involves 

statutory, constitutional, and rules analyses, our review is plenary. See Phillip Leon M. v. 

Greenbrier Cnty. Bd. of Educ., 199 W. Va. 400, 404, 484 S.E.2d 909, 913 (1996) 

(“Because interpretations of the West Virginia Constitution, along with interpretations of 

statutes and rules, are primarily questions of law, we apply a de novo review[.]”); Syl. pt. 

1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995) (“Where the issue 

on an appeal from the circuit court is clearly a question of law or involving an interpretation 

10 An original sentencing order was entered on August 4, 2020. On August 

14, 2020, the circuit court entered an amended order to correct errors relating to counts one 

and two of the information. 
8

of a statute, we apply a de novo standard of review.”). With these governing standards in 

mind, we will consider the parties’ arguments.

III.

DISCUSSION

On appeal, Mr. Byers raises two assignments of error: the circuit court 

committed reversible error by (1) sentencing him over video conference in violation of 

Rule 43(a) of the West Virginia Rules of Criminal Procedure and West Virginia Code § 62-

3-2 and (2) sentencing him over video conference in violation of the Fifth Amendment of 

the United States Constitution and Article III, Section 10 of the West Virginia Constitution. 

In addressing these related issues, we will first discuss Mr. Byers’s right to be present at 

sentencing. Next, we will consider whether Mr. Byers’s right to be present at sentencing 

was violated. Finally, we will address whether Mr. Byers waived his right to be present at 

sentencing and conduct a harmless error analysis. 

A. Mr. Byers’s Right to Be Present at Sentencing

We begin our analysis by examining a defendant’s right to be present at the 

sentencing stage of a criminal proceeding. This Court has previously recognized that “[t]he 

right of a criminal defendant to be present at every critical stage of the proceedings against 

him or her has a foundation in common, statutory, and constitutional law.”11 State ex rel. 

11 In Syllabus point 5 of In re Tax Assessments Against Pocahontas Land 

Corp., 158 W. Va. 229, 210 S.E.2d 641 (1974) we held that “[w]hen it is not necessary in 
9

Redman v. Hedrick, 185 W. Va. 709, 713, 408 S.E.2d 659, 663 (1991). See also State v. 

Sites, 241 W. Va. 430, 443, 825 S.E.2d 758, 771 (2019) (“The general right of a criminal 

defendant to be present during courtroom proceedings is addressed through the 

interpretation of the state constitution, a Court rule[,] and statute.”).

First, we examine a defendant’s right to be present pursuant to the West 

Virginia and United States Constitutions. This Court has previously held that a defendant 

has the right to be present at all critical stages in a criminal proceeding pursuant to Article 

III, Section 14 of the West Virginia Constitution.

12 Here, Mr. Byers contends that he has a 

the decision of a case to determine a constitutional question, this Court will not consider 

or determine such question.” However, we find it necessary to examine the issue utilizing 

a Constitutional, statutory, and rules-based analysis. In several cases examining a 

defendant’s right to be present, this Court has considered the issue under the Constitution, 

the statute, and/or the rule. See generally State v. Coleman, No. 18-0731, 2020 WL 919301, 

at *2 (W. Va. Feb. 26, 2020) (memorandum decision); State v. Brown, 210 W. Va. 14, 552 

S.E.2d 390 (2001) (per curiam); State v. Hicks, 198 W. Va. 656, 482 S.E.2d 641 (1996)

(per curiam); but see State v. Sites, 241 W. Va. 430, 444, 825 S.E.2d 758, 772 (2019) (“In 

the instant case, the issue of the trial court’s response to the seven jury questions may be 

disposed of on non-constitutional grounds under Rule 43(a).”).

12 This Court generally has addressed the right to be present in the context of 

the main trial proceeding and in assessing the right to confrontation. See e.g., Hicks, 198 

W. Va. at 660, 482 S.E.2d at 645 (discussing whether an ex parte conversation between the 

court clerk and jurors about overheard spectator comments constituted a critical stage); 

State v. Boyd, 160 W. Va. 234, 247, 233 S.E.2d 710, 719 (1977) (concerning a defendant’s 

absence at a hearing in the judge’s chambers after an objection was made to the defense 

attorney’s remarks to the jury during closing argument); State ex rel. Grob v. Blair, 158 

W. Va. 647, 661, 214 S.E.2d 330, 338 (1975) (finding that a defendant’s “absence at the in 

camera hearing constituted a denial of his right to confront as [sic] accuser secured to him 

by Article III, Section 14 of the West Virginia Constitution”). This Court explicitly held in 

Syllabus point 6 of Boyd, in part, 160 W. Va. 234, 233 S.E.2d 710, that a “defendant has a 
10

right to be present pursuant to the due process clause under Article III, Section 10 of the 

West Virginia Constitution13 and the Fifth Amendment of the United States Constitution.14

As with Article III, Section 14 of the West Virginia Constitution, we have similarly held 

that “[d]ue process of law as guaranteed by the State and Federal Constitutions requires 

that a party be accorded the right to be present in person or by counsel during all trial 

proceedings.”15 Syl. pt. 2, Sisler v. Hawkins, 158 W. Va. 1034, 217 S.E.2d 60 (1975). See 

also State v. Allen, 193 W. Va. 172, 175, 455 S.E.2d 541, 544 (1994) (“[D]ue process of 

law under the Federal Constitution requires that a defendant be accorded the right to be 

present in person or by counsel at every stage of his trial.” (internal quotations omitted)).

Furthermore, in State v. Crabtree, 198 W. Va. 620, 629, 482 S.E.2d 605, 614 (1996), we 

found that “the Fifth and Sixth Amendments to the United States Constitution, establishes 

[sic] a criminal defendant’s right to be present at all critical stages of a trial.” In accordance 

right under Article III, Section 14 of the West Virginia Constitution to be present at all 

critical stages in the criminal proceeding[.]” 

13 West Virginia Constitution Article III, Section 10 provides that “[n]o 

person shall be deprived of life, liberty, or property, without due process of law, and the 

judgment of his peers.” Id.

14 In relevant part, the Fifth Amendment of the United States Constitution 

provides that “[n]o person shall be . . . deprived of life, liberty, or property, without due 

process of law[.]” Id.

15 Sisler involved a civil matter where a defendant was denied the right to 

represent and defend himself. Sisler v. Hawkins, 158 W. Va. 1034, 1039, 217 S.E.2d 60, 

64 (1975). The defendant was placed in jail for contempt of court and did not take part in 

the trial of the matter. Id. As such, this Court found that “[i]t [was] clear that the appellant 

. . . ha[d] not been afforded due process of law as guaranteed by the Fifth and Fourteenth 

Amendments to the United States Constitution and Article III, Section 10 of the

Constitution of West Virginia.” Id.
11

with the preceding authority, we hold that a defendant has a due process right to be present 

at all critical stages of a criminal proceeding pursuant to Article III, Section 10 of the West 

Virginia Constitution and the Fifth Amendment of the United States Constitution. We have

previously recognized that the imposition of sentence is a critical stage of a criminal 

proceeding. See State v. Tex B.S., 236 W. Va. 261, 264, 778 S.E.2d 710, 713 (2015) (“A 

defendant is constitutionally guaranteed the right to be present at any stage of the criminal 

proceeding that is critical to its outcome, if his or her presence would contribute to the 

fairness of the procedure. . . . This includes the right to be present upon the imposition of 

sentence.”).

16

Next, we consider a defendant’s right to be present pursuant to statutory 

authority. West Virginia Code § 62-3-2 (1923) provides, in relevant part, that “[a] person 

16 Federal courts have also recognized that sentencing is a critical stage of a 

criminal proceeding. See Paul v. United States, 734 F.2d 1064, 1067 (5th Cir. 1984) (“Both 

the Federal Rules of Criminal Procedure, see Fed. R. Crim. P. 35 and 42, and the 

Constitution, see United States v. Huff, 512 F.2d 66, 71 (5th Cir. 1975), guarantee the right 

of the defendant to be present at his sentencing.”); Warrick v. United States, 551 A.2d 

1332, 1334 (D.C. 1988) (“A criminal defendant’s right to be present at the time sentence 

is imposed, and to be heard as to what the punishment shall be, is a fundamental one which 

implicates the due process clause. See United States v. Gagnon, 470 U.S. 522, 526, 105 

S. Ct. 1482, 1484, 84 L.Ed.2d 486 (1985) (per curiam); Snyder v. Massachusetts, 291 U.S. 

97, 105-06, 108, 54 S. Ct. 330, 332, 333, 78 L.Ed. 674 (1934)[, overruled on other grounds

by Malloy v. Hogan, 378 U.S. 1 (1964)]; United States v. Villano, 816 F.2d 1448, 1452 

(10th Cir. 1987) (en banc).”). See also State v. Koopmans, 550 N.W.2d 715, 720 (Wis. Ct. 

App. 1996), aff’d, 563 N.W.2d 528 (Wis. 1997) (“A defendant has a due process right to 

be present at a sentencing hearing and to be afforded the right of allocution. State v. Varnell, 

153 Wis.2d 334, 340, 450 N.W.2d 524, 527 (Ct.App.1989).”).
12

indicted for [a] felony shall be personally present during the trial therefor.”17 In Syllabus 

point 3 of Grob, 158 W. Va. 647, 214 S.E.2d 330, we found that 

[West Virginia Code] 1931, 62-3-2 requires that one accused 

of a felony shall be present at every stage of the trial during 

which his interest may be affected; and if anything is done at 

trial in the accused’s absence which may have affected him by 

possibly prejudicing him, reversible error occurs.

See also State v. Martin, 120 W. Va. 229, 230, 197 S.E. 727, 727-28 (1938) (“Under [West 

Virginia Code § 62-3-2], which has been in effect since the organization of the state, this 

court has consistently held that in felony cases, the accused must be present in his own 

proper person from the inception of the trial upon the indictment to the final judgment, 

inclusive, when anything is done affecting him, and the record must show his presence.”).

Thus, there is a statutory right to be present at a critical stage of a criminal proceeding. 

17 As this Court previously noted, 

[t]he statute, which predates Rule 43(a) [of the West 

Virginia Rules of Criminal Procedure], is not inconsistent with 

that rule; therefore, we may look to the statute and decisions 

interpreting it for guidance. See Syl. pt. 5, State v. Wallace, 205 

W. Va. 155, 517 S.E.2d 20 (1999) (“The West Virginia Rules 

of Criminal Procedure are the paramount authority controlling 

criminal proceedings before the circuit courts of this 

jurisdiction; any statutory or common-law procedural rule that 

conflicts with these Rules is presumptively without force or 

effect.”).

Sites, 241 W. Va. 430 at 443 n.22, 825 S.E.2d at 771 n.22.
13

Finally, the West Virginia Rules of Criminal Procedure explicitly require that 

a defendant be present and include sentencing as a critical stage. Rule 43(a) of the West 

Virginia Rules of Criminal Procedure mandates that “[t]he defendant shall be present at 

the arraignment, at the time of plea, at every stage of the trial including the impaneling of 

the jury and the return of the verdict, and at the imposition of sentence, except as otherwise 

provided by this rule.”18 Id. (emphasis added). See also State v. Barker, 176 W. Va. 553, 

18 There are certain exceptions to the general rule as set forth in Rule 43(b) 

and (c) of the West Virginia Rules of Criminal Procedure. See W. Va. R. Crim. P. 43(b) 

and (c). Rule 43 (b) and (c) of the West Virginia Rules of Criminal Procedure provide as 

follows:

(b) Continued Presence Not Required. — The further 

progress of the trial to and including the return of the verdict 

shall not be prevented and the defendant shall be considered to 

have waived the right to be present whenever a defendant, 

initially present:

(1) Is voluntarily absent after the trial has commenced 

(whether or not the defendant has been informed by the court 

of the obligation to remain during the trial); or

(2) After being warned by the court that disruptive 

conduct will cause his or her removal from the courtroom, 

persists in conduct which is such as to justify exclusion from 

the courtroom.

(c) Presence Not Required. — A defendant need not be 

present in the following situations:

(1) A corporation may appear by counsel for all 

purposes.

(2) In prosecutions for offenses punishable by fine or by 

imprisonment for not more than one year or both, the court, 

with the written consent of the defendant, may permit 
14

556, 346 S.E.2d 344, 347 (1986) (per curiam) (“The right of an accused to be present at 

every stage of a criminal trial is also protected by W. Va. R. Crim. P. 43.”). Based upon 

the foregoing authority, we now hold that a defendant has a due process right to be present 

at the imposition of sentence pursuant to Rule 43(a) of the West Virginia Rules of Criminal 

Procedure, West Virginia Code § 62-3-2 (1923), and both Article III, Section 10 of the 

West Virginia Constitution and the Fifth Amendment of the United States Constitution.

This general rule is limited by the exceptions in Rule 43(b) and (c) of the West Virginia 

Rules of Criminal Procedure. Having determined that a right to be present at sentencing 

exists, we must consider whether the right was violated in the present matter. 

B. Violation of Right to Be Present at Sentencing

We now address whether the circuit court’s refusal to allow Mr. Byers to 

appear in person at his sentencing hearing was a violation of Mr. Byers’s right to be present.

In the case sub judice, Mr. Byers was not completely absent from his sentencing hearing, 

but was compelled by the circuit court to appear by video conference. Therefore, we are 

arraignment, plea, trial[,] and imposition of sentence in the 

defendant’s absence.

(3) At a conference or argument upon a technical 

question of law not depending upon facts within the personal 

knowledge of the defendant.

(4) At a reduction of sentence under Rule 35.

Id. However, no party argues that any of these exceptions apply in this case. 
15

asked to determine if appearing by video conference is equivalent to appearing physically 

in person for the purposes of a defendant’s right to be present at the imposition of sentence.

The State has conceded that the circuit court erred in sentencing Mr. Byers 

via video conference. As a general rule, “[t]his Court is not obligated to accept the State’s 

confession of error in a criminal case. We will do so when, after a proper analysis, we 

believe error occurred.” Syl. pt. 8, State v. Julius, 185 W. Va. 422, 408 S.E.2d 1 (1991). 

See also State v. Allah Jamaal W., 209 W. Va. 1, 4 n.6, 543 S.E.2d 282, 285 n.6 (2000) 

(“Mere confession of error by the State, of course, does not dictate the hand of this Court 

nor the outcome of this case.” (internal quotations and citations omitted)). In other words, 

“confessions of error do not automatically entitle a party to a reversal[;] reversal is required 

when it can be ascertained that the errors confessed are supported by law.” State v. Berrill, 

196 W. Va. 578, 587, 474 S.E.2d 508, 517 (1996) (internal quotations and citations 

omitted).

Because this is a question that has not been previously addressed by this 

Court, we consider case law from other jurisdictions addressing the question of whether 

video conferencing equates to presence in the context of a sentencing hearing.19 The United 

19 Rule 43(a) of the West Virginia Rules of Criminal Procedure is 

substantially similar to and patterned after Rule 43(a) of the Federal Rules of Civil 

Procedure. See Sites, 241 W. Va. at 444, 825 S.E.2d at 772. This Court often looks to 

federal court decisions for guidance when applying or construing a rule of this Court that 

is patterned after a federal rule. See State v. Hedrick, 204 W. Va. 547, 554, 514 S.E.2d 397, 

404 (1999) (“Consequently, because the relevant provisions of W. Va. R. Crim. P. 46 are 
16

States Court of Appeals for the Sixth Circuit examined a similar issue in United States v. 

Williams, 641 F.3d 758 (6th Cir. 2011). In Williams, the court first acknowledged a 

defendant’s right to be present at sentencing. 641 F.3d at 764. The Williams Court then 

observed that 

[t]hree different courts of appeal have addressed 

whether electronic “presence” by video conference at 

sentencing satisfies the requirements of Rule 43(a), and all 

have concluded that it does not. See United States v. Torres–

Palma, 290 F.3d 1244, 1248 (10th Cir. 2002); United States v. 

Lawrence, 248 F.3d 300, 304 (4th Cir. 2001); United States v. 

Navarro, 169 F.3d 228, 239 (5th Cir. 1999). Consistent with 

the results reached by our sister circuits, we agree that a district 

court may not conduct a sentencing hearing by video 

conference.

641 F.3d at 764. The court reasoned that “Rule 43 requires that the defendant be present, 

which simply cannot be satisfied by anything less than physical presence in the courtroom.” 

Id. Furthermore, the Williams Court explained that 

substantially the same as Rule 46 of the Federal Rules, we look to the federal courts for 

guidance.”). We further note that while the majority of the decisions of federal courts we 

examine herein dispose of the issue pursuant to the Federal Rules of Criminal Procedure, 

“[t]he rights protected by Rule 43 include the defendant’s constitutional . . . Due Process 

rights, and the common law right to be present.” United States v. Navarro, 169 F.3d 228, 

236 (5th Cir. 1999). See also United States v. Gregorio, 497 F.2d 1253, 1259-60 (4th Cir. 

1974)[, overruled on other grounds by United States v. Rhodes, 32 F.3d 867, 873 (4th Cir.

1994)] (“Our analysis of the policies behind Rule 43’s right of presence is fully applicable 

to defendant’s due process claim. Indeed, we note one distinguished commentator’s 

statement that Rule 43 implements the sixth amendment right of confrontation and 

embodies the common-law privilege of presence as well as the due process right of the 

accused to be present.” (internal quotations and citation and footnote omitted)); United 

States v. Rolle, 204 F.3d 133, 137 (4th Cir. 2000) (“Rule 43 has traditionally been 

understood to codify both a defendant’s constitutional right and his common law right to 

presence. Accordingly, its protective scope is broader than the constitutional right alone.”

(internal quotations and citations omitted)). Consequently, under the circumstances of the 

present matter, we will consider federal court decisions interpreting federal Rule 43. 
17

[b]eing physically present in the same room with another has 

certain intangible and difficult to articulate effects that are 

wholly absent when communicating by video conference. As 

written, [Rule 43] reflects a firm judgment in favor of physical 

presence and does not permit the use of video conferencing as 

a substitute.

641 F.3d at 764-65. See also United States v. Lawrence, 248 F.3d 300, 304 (4th Cir. 2001) 

(stating that federal Rule 43 reflects the policy that “virtual reality is rarely a substitute for 

actual presence and that, even in an age of advancing technology, watching an event on the 

screen remains less than the complete equivalent of actually attending it”); United States 

v. Navarro, 169 F.3d 228, 236 (5th Cir. 1999) (finding that presence meant physical 

presence and not “within sight and call”); United States v. Fagan, 464 F. Supp. 3d 427, 

430 (D. Me. 2020) (footnotes omitted) (“From thirty years of federal sentencing, I can 

attest to the importance of seeing the defendant in the same room at sentencing. Physical 

presence makes unavoidable the recognition that—in sentencing—one human being sits in 

judgment of another, with a dramatic impact on the future of a living, breathing person, not 

just a face on a screen.”).

20

Based upon these federal authorities and the similarities between our Rule 

43 and its federal counterpart, we hold that upon a defendant’s timely objection, compelling 

20 At least one other state court has also found that appearance by video 

conference violates a defendant’s right to be present at sentencing. In People v. Heller, 891 

N.W.2d 541 (Mich. Ct. App. 2016), the court explained that “sentencing is a critical stage 

of a criminal proceeding at which a defendant has a constitutional right to be present, 

People v. Mallory, 421 Mich. 229, 247, 365 N.W.2d 673 (1984), and virtual appearance is 

not a suitable substitute for physical presence.” 891 N.W.2d at 543.
18

a defendant to appear by video conference, rather than in person, at the imposition of 

sentence violates that defendant’s right to be present at a critical stage of the criminal 

proceedings. In this case, there is no dispute that the circuit court required Mr. Byers to 

appear at his sentencing hearing by video conference. Consequently, Mr. Byers’s right to 

be present at the imposition of his sentence was violated. We must next examine whether 

Mr. Byers waived his right to be present at the imposition of his sentence, and if not, 

whether the violation was harmless. 

C. Waiver and Harmless Error Analysis

This Court’s conclusion that Mr. Byers’s right to be present at his sentencing 

hearing was violated is not the end of our analysis. First, the right to be present at a critical 

stage of a criminal proceeding is not absolute; it may be waived. This Court has held that 

“an accused, by declaration and conduct, may waive a fundamental right protected by the 

Constitution [such as the common-law/statutory right of presence] if it is demonstrated that 

such waiver was made knowingly and intelligently.” Syl. pt. 7, in part, Grob, 158 W. Va. 

647, 214 S.E.2d 330. See also State v. Stone, 200 W. Va. 125, 130, 488 S.E.2d 400, 405 

(1997) (per curiam) (“Because the record shows that Mr. Stone orally waived his right to 

be present when the sentence order was entered, we find no merit in this assignment of 

error.”); State v. Hicks, 198 W. Va. 656, 663, 482 S.E.2d 641, 648 (1996)(“[W]aiver must 

be knowingly and intelligently made and the fact that it was so made must be conclusively

demonstrated on the record.”). 
19

In the present matter, Mr. Byers, through counsel, timely and explicitly 

objected to being compelled to appear by video conference for his sentencing hearing. 

Thus, the record is clear that Mr. Byers did not waive his right to be present at a critical 

stage of his proceedings. See State v. Eden, 163 W. Va. 370, 378, 256 S.E.2d 868, 873 

(1979) (“The record here discloses no evidence that indicates the petitioner’s knowing and 

intelligent waiver of his right to be present at trial.”). 

Second, because Mr. Byers did not waive his right to be present at sentencing, 

we must determine whether the violation of Mr. Byers’s right was harmless. We have

consistently found that a violation of the requirement that a defendant be present at all 

critical stages of the criminal proceeding is subject to the harmless error analysis.

21 See

e.g., Syl. pt. 6, Boyd, 160 W. Va. 234, 233 S.E.2d 710 (“The defendant has a right under 

Article III, Section 14 of the West Virginia Constitution to be present at all critical stages 

in the criminal proceeding; and when he is not, the State is required to prove beyond a 

reasonable doubt that what transpired in his absence was harmless.”). While Boyd

21 On appeal, Mr. Byers asks this Court to adopt a per se error rule regarding 

a violation of a defendant’s right to be present at the imposition of sentence. For the reasons 

set forth herein, we decline to adopt that standard. 

Furthermore, both parties’ respective briefings before this Court cite to 

numerous federal cases that use a harmless error analysis and require that the government 

“demonstrate to the [c]ourt with certainty that the error at sentencing did not cause the 

defendant to receive a more severe sentence.” United States v. Williams, 641 F.3d 758, 765 

(6th Cir. 2011) (internal quotations and citations omitted). As explained herein, this Court 

consistently utilizes a beyond a reasonable doubt harmless error standard to assess 

violations of constitutional rights. Accordingly, we decline to adopt the federal “with 

certainty” standard for assessing whether an error was harmless. 
20

specifically held that a violation of Article III, Section 14 of the West Virginia Constitution 

is subject to the harmless error analysis, we have applied the same standard to the violation 

of Constitutional rights in general. See Syl. pt. 5, Grob, 158 W. Va. 647, 214 S.E.2d 330

(“Failure to observe a constitutional right constitutes reversible error unless it can be shown 

that the error was harmless beyond a reasonable doubt.”). Accordingly, we now hold that 

when there has been a violation of a defendant’s due process right to be present at 

sentencing pursuant to Article III, Section 10 of the West Virginia Constitution, such 

violation is reversible error unless the State can prove beyond a reasonable doubt that the 

violation was harmless.

In conducting a harmless error analysis, the inquiry is fact specific. See State 

v. Blake, 197 W. Va. 700, 709, 478 S.E.2d 550, 559 (1996) (“Assessments of harmless 

error are necessarily content-specific.”); State v. Guthrie, 194 W. Va. 657, 677, 461 S.E.2d 

163, 183 (1995) (“We look at each of the defendant’s contentions separately because our 

review for harmless error is fact specific.”); McDougal v. McCammon, 193 W. Va. 229, 

239, 455 S.E.2d 788, 798 (1995) (“The outcome of the harmless error analysis is fact 

specific.”). Consequently, we examine the specific circumstances in this matter to 

determine whether the violation was harmless beyond a reasonable doubt. 

Under the facts of this case, we find that the State has failed to meet its burden 

to establish beyond a reasonable doubt that Mr. Byers would not have received a lower 

sentence had he been physically present at the sentencing hearing. The Supreme Court of 
21

Kentucky has recently considered a similar issue. In Gibson v. Commonwealth of Kentucky,

No. 2020-SC-0250-MR, 2021 WL 3828558 (Ky. Aug. 26, 2021), the defendant appealed 

a decision denying his motion to withdraw his guilty plea. Id. at *1. In particular, the 

defendant contended that by “conducting his sentencing hearing remotely [the lower court] 

violated his constitutional rights[.]” Id. Similar to the present matter, the defendant pleaded

guilty pursuant to a plea agreement and was set to be sentenced in May of 2020. Id.

However, “March 2020 brought the first wave of the COVID-19 pandemic to the 

Commonwealth, slowing and even closing essential government functions in Kentucky.” 

Id. Because there was a judicial state of emergency administrative order in effect during 

the time the defendant was to be sentenced, the lower court held the sentencing hearing 

remotely. Id.

The Gibson Court noted that there were constitutional and rules-based

implications of a defendant’s right to be present at all critical stages of a criminal 

proceeding. Id. at *3. The court also noted that constitutional error is subject to a harmless 

error analysis. Id. The Gibson Court then examined the circumstances present and found 

that “at the time of [the defendant’s] sentencing on May 4, 2020, the Commonwealth of 

Kentucky was responding to the first wave of the COVID-19 pandemic.” Id. at *4. 

Specifically, because of COVID-19, the Supreme Court of Kentucky had issued 

Administrative Order 2020-22 on April 14, 2020 which specified that “[a]ll participants to 

a proceeding, including parties and attorneys, must be allowed to participate remotely. 

Judges must use available telephonic and video technology to conduct all hearings, unless 
22

the parties are unable to participate remotely.” Id. (internal quotations and citations 

omitted). Moreover, the court noted that the defendant’s sentencing hearing by video 

conference (1) allowed all participants to see and hear one another; (2) the defendant’s 

family was able to testify on his behalf; and (3) the trial judge was able to hear from the 

deceased victim’s family. Id. Furthermore, the defendant “was not at a greater disadvantage 

than anyone else involved in the hearing” because all parties participated remotely and 

“every member had the same difficulties observing each other’s demeanor and gaining the 

kind of information only available with face-to-face confrontations.” Id. Under these facts 

the Gibson Court found that reversal was not necessary. Id.

In the present matter, though, the circumstances are distinguishable from

Gibson. First, while there is no doubt that when the circuit court held Mr. Byers’s 

sentencing hearing on June 4, 2020, the State of West Virginia was still in the midst of the 

COVID-19 pandemic, this Court did not have a judicial emergency administrative order in 

place at that time.22 Importantly, the circuit court had previously continued the sentencing 

22 Upon the record before us, there is also no indication that there was a local 

Wood County judicial emergency order in place at the time of Mr. Byers’s sentencing 

hearing. We note that this Court had issued a resumption of operations administrative order 

that was in place at that time, which set forth the guidelines and protocols for the 

resumption of court operations after the judicial emergency was lifted. In the administrative 

order we stated that “in consultation with local and state public health officials, [we had] 

evaluated the continued need for a judicial emergency in light of ongoing COVID-19 

mitigation efforts, and determined that certain court business may resume upon the 

expiration of the judicial emergency[.]” Supreme Court of Appeals of West Virginia, 

Administrative Order, Resumption of Operations (May 6, 2020). We further directed that 
23

hearing because of the judicial emergency and concluded that it would schedule the 

sentencing hearing only after the judicial emergency order had been lifted. Additionally, 

once Mr. Byers raised his objection during the hearing, the circuit court gave no indication

that it was compelling Mr. Byers’s remote appearance because of concerns arising from

the COVID-19 global pandemic. Rather, the circuit court noted that it trusted “the [video

conferencing] system that ha[d] been made available by the [S]upreme [C]ourt” and that it 

believed in using the system, “the [c]ourt [was] affording [Mr. Byers] the ability to speak 

privately with his [c]ounsel at any time which is needed.” Indeed, the fact that the video 

conference system worked well was the only reason given by the circuit court when 

depriving Mr. Byers of his right to be present at sentencing. Also, we find it significant that 

unlike the Gibson case, Mr. Byers and his counsel were the only individuals who appeared 

by video conference. The circuit court judge, the assistant prosecuting attorney, and a 

to the extent they do not impermissibly infringe upon the 

constitutional rights of a party or litigant, any West Virginia 

state or local rules, including but not limited to criminal rules, 

civil rules, or administrative rules, that limit or preclude a 

judicial officer or court clerk’s ability to utilize remote, 

telephonic[,] or video technology to limit in-person contact are 

suspended. Such suspension shall survive the expiration of the 

judicial emergency, and will remain in effect until otherwise 

ordered. 

Id. (emphasis added). The attached protocols indicated that “[h]earings involving 

incarcerated individuals should still utilize video conferencing to reduce the risk of a 

COVID-19 outbreak in a regional jail or corrections facility.” Id. (emphasis added). 

However, “[t]he word ‘should,’ in most contexts, is precatory, not mandatory.” United 

States v. Rogers, 14 F. App’x 303, 305 (6th Cir. 2001) (citation omitted). Additionally, 

there is simply no indication in the record that the circuit court was relying on this language 

when it compelled Mr. Byers to appear by video conference over his objection. 
24

Wood County adult probation officer were physically present in the courtroom. Further, 

Mr. Byers and his counsel were in separate locations. 

The circuit court did not accept Mr. Byers’s request for alternative sentencing 

and ran all but one of Mr. Byers’s sentences consecutively.

23 The State simply asserts that 

“[t]he circuit court would not have been swayed by [Mr. Byers’s] physical presence at 

sentencing in light of the undisputed fact that [he] had undergone substance abuse treatment 

in the past that was unsuccessful.” Other than this blanket statement and noting that the 

circuit court ran two of the four sentences concurrent to each other, as well as giving time 

served on the one count of fleeing from an officer, the State fails to cite to any evidence in 

the record indicating that the circuit court would not have given a more lenient sentence 

had Mr. Byers been physically present. Without any specific argument from the State based 

on the unique facts of this case, we are left to simply speculate as to the sentence Mr. Byers

might have received had he been physically present. Under these circumstances, we must 

conclude that the State has failed to demonstrate beyond a reasonable doubt that the error 

here was harmless.24 Therefore, Mr. Byers’s right to be present at the imposition of his 

23 Whether Mr. Byers’s sentence is appropriate is not an issue on appeal 

before this Court. We leave the ultimate sentencing determination to the sound discretion 

of the circuit court to be imposed in accordance with the principles set forth in this opinion. 

24 As we have found that Mr. Byers’s constitutional right to be present was 

violated, the State was required to show beyond a reasonable doubt that any error was 

harmless. We also have recognized that 

the standard of review in determining whether an error is 

harmless depends on whether the error was constitutional or 
25

sentence was violated, and, under the specific facts of the matter before us, this violation 

was not harmless. Consequently, we vacate Mr. Byers’s sentence and remand for 

resentencing.

IV.

CONCLUSION

For the reasons set forth above, this Court vacates the August 14, 2020 order 

sentencing Mr. Byers and remands this matter to the Circuit Court of Wood County for a 

new sentencing hearing in accordance with the principles set forth herein.25

 Vacated and Remanded with Instructions. 

nonconstitutional. . . . As to error not involving the erroneous 

admission of evidence, we have held that nonconstitutional 

error is harmless when it is highly probable the error did not 

contribute to the judgment.

State v. Guthrie, 194 W. Va. 657, 684, 461 S.E.2d 163, 190 (1995). We find that even 

under this lower standard for a nonconstitutional error, under the circumstances of this 

matter, the error was not harmless.

25 Upon review of the circuit court’s sentencing order of August 14, 2020, 

we believe there to be a typographical error indicating that Mr. Byers was convicted of two

counts of failure to appear pursuant to the indictment rather than two counts of failure to

register as a sexual offender pursuant to the indictment. As such, on remand we direct the 

circuit court also to correct this typographical error in its new sentencing order.