1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia, Plaintiff Below, Respondent

vs. ) No. 18

- 0813 ( Marshall County 18

- F

- 45 & 46 )

Jason McClain Phillips

, Defendant Below, Petitioner



### MEMORANDUM DECISION

Petitioner Jason McC lain Phillips, by counsel Brett M. Ferro, appeals the Circuit Court of Marshall County’s August 24, 2018, order sentencing him to an effective term of two to eight years of incarceration following the entry of his guilty plea to one count of third or subse quent offense driving while revoked for driving under the influence of alcohol (“DUI”) and one count third or subsequent offense domestic battery. The State of West Virginia , by counsel Scott E. Johnson, filed a response in support of the circuit court’s o rder . On appeal, petitioner argues that the circuit court committed plain error in considering an impermissible factor at sentencing and abused its discretion in sentencing him to consecutive, rather than concurrent, prison terms

.

This Court has conside red 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 circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

In July of 2018 , the Marsh all County Grand J ury returned a three

- count indictment against petitioner charging him with one count of third or subsequent offense driving under the influence of alcohol, one count of third or subsequent offense driving while revoked for DUI

, and one co unt of third or subsequent offense domestic battery. On July 27 , 2018, petitioner entered into a plea agreement with the State wherein he pled guilty to one count of third or subsequent offense driving while revoked for DUI and one count of third or subseq uent offense domestic battery in exchange for the State’s agreement to dismiss the remaining count in the indictment and refrain from filing a recidivist information.

Petitioner’s sentencing hearing was held on August 22 , 2018. At the sentencing hearing,

p etitioner requested assistance in seeking treatment for his issues with alcohol abuse. Counsel for 

### FILED
January 17, 2020

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2

petitioner argued that the circuit court should sentence petitioner to home incarceration for the third or subsequent offense driving while revoked for DUI charge and suspend his sentence for the other charge. The State requested that the circuit court sentence petitioner to consecutive sentences of incarceration given petitioner’s long history of alcohol abuse and criminal activity. Specifically, the State n oted that petitioner had an eleven

- page criminal history, including between eight and ten misdemeanors and at least two prior felonies. The State advised the court that petitioner’s blood alcohol content was .224 at the time he was arrested for the domesti c battery charge, which was described as “very severe.” Petitioner’s blood alcohol content when he was arrested for driving under the influence was also high at .231. The State argued that, despite admitting to struggling with alcohol abuse issues for near ly twenty years, petitioner had only sought the assistance of Alcoholics Anonymous meetings twice during that time and further opined that “the only reason he’s seeking help now is because he’s facing two felony charges that he pled to, and he’s looking at a significant amount of [prison] time.” The circui t court also considered the pre sentence investigation report and a letter from petitioner’s mother pleading for leniency. On its own, the circuit court brought up petitioner’s Facebook pages, read several posts, and asked petitioner whether he had authored them. Petitioner conceded that he had authored the posts, but claimed that he did not take Facebook seriously and that the posts were jokes. The circuit court clarified “I’m not sentencing you based on th ese. I wanted to see who you are and who you portrayed yourself to be.”

The circuit court sentenced petitioner to not less than one nor more than three years of incarceration for the third or subsequent offense driving while revoked for DUI charge and no t less than one nor more than five years of incarceration for the third or subsequent offense domestic battery charge based upon the “totality of the circumstances,” further noting that this was petitioner’s third conviction for driving while revoked for D UI and that he was “going to kill somebody.” Petitioner’s sentences were memorialized in the circuit court’s August 24 , 2018, sentencing order, and it is from this order that he appeals.

This Court reviews sentencing orders “under a deferential abuse o f discretion standard, unless the order violates statutory or consti tutional commands.” Syl. Pt. 1, in part, State v.

Adams , 211 W. Va. 231, 565 S.E.2d 353 (2002). We have also held that “[s]entences imposed by the trial court, if within statutory limits a nd if not based on some [im]permissible factor, are not subject to appellate review.” 1 Syl. Pt. 4, State v. Goodnight , 169 W. Va. 366, 287 S.E.2d 504 (1982).

On appeal, petitioner argues that the circuit court committed plain error by considering petit ioner’s Facebook pages at sentencing. According to petitioner, the Facebook pages were impermissibly considered as they were outside the purview of Rule 32 of the West Virginia

Rules of Criminal Procedure. Petitioner contends that Rule 32 (b) does not permi t a circuit court

to c onsider anything beyond the pre sentence investigation conducted by a probation officer. 2

1 It is undisputed that petitioner’s sentences were within statutory limits.

2 In relevant part, Rule 32(b)(1) sets forth that

(continued . . .)3

Petitioner claims that the circuit court’s comment that it was sentencing petitioner based upon the totality of the circumstances meant that the Facebook pages were included in its consideration

, and that his rights were substantially affected because the circuit court ordered his sentences to run consecutively rather than concurrently

. Lastly, petitioner argues that the fairness of the sentencing hearing was seriously affected because he was not able to “cross

- examine” the court regarding the Facebook pages. Based on the foregoing, petitioner concludes that the circuit court committed plain error and that his sentences should be vacated.

Because petitioner’ s counsel did not object to the circuit court’s references to petitioner’s Facebook pages below, his counsel relies upon a plain error analysis. This Court has long held

that the “ ‘plain error’ doctrine grants appellate courts, in the interest o f justice, the authority to notice error to which no objection has been made.” State v. Miller , 194 W. Va. 3, 18, 459 S.E.2d 114, 129 (1995). “To trigger [ the ] application of the ‘plain error’ doctrine, there must be (1) an error; (2) that is plain; (3) th at affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Id. at 6, 459 S.E.2d at 117, syl. pt. 7.

We find no merit to petitioner’s claim that the circuit court committed plai n error in reviewing petitioner’s Facebook page s in preparation for his sentencing hearing

. Petitioner’s reliance upon Rule 32 of the West Virginia Rules of Criminal Procedure is misplaced. Although this rule sets forth when a probat ion officer shall prepa re a pre sentence investigation report and what the contents of the report should be, 3 it in no way can be construed to mean that the circuit

(b) Presen tence Investigation and Report.

(1) When Made. The probation officer shall make a presentence investigation and submit a report to the court before the sentence is imposed, unless:

(A) the defendant waives a presentence investigation and report;

(B) the court finds that the information in the record enables it to m eaningfully exercise its sentencing authority; and

(C) the court explains on the record its finding that the information in the record enables it to meaningfully exercise its sentencing authority.

Petitioner concedes that the circuit court “could, and ma ybe even should, have directed the [c]ourt’s probation officer to review any [Facebook] pages.”

3 Rule 32(b)(4) provides that the presentence report must contain

(A) information about the defendant’ s history and characteristics, including

infor mation con cerning the defendant’ s court and criminal record, occupation, family background, education, habits and associations, mental and physical condition, the names, relationships, ages and condition of those dependent upon

(continued . . .)4

court may only consider the pre sentence investigation report. To the contrary, we have previously noted that

[a] s a general matter, “[t]he rules of evidence

. . . do not strictly apply at sentencing hearings.” State v. Combs , No. CA200 0

– 03

– 047, 2005 WL 941133, at *2 (Ohio Ct.App.2005). . . . Moreover, “[a] trial court has wide discretion in the sources and types of e vidence used in determining the kind and extent of punishment to be imposed. And a sentencing court is not restricted by the federal constitution to the information received in open court.” Elswick v. Holland , 623 F.Supp. 498, 504 (S.D.W.Va.1985) (citation s omitted).

State ex rel. Dunlap v. McBride , 225 W. Va. 192, 202, 691 S.E.2d 183, 193 (2010). Accordingly, petitioner’s claim that the circuit court was limi ted to only considering the pre sentence investigation report at sentencing is without merit.

We conclude that no error occurred. Contrary to petitioner’s claim that the circuit court considered the Facebook posts under the “totality of the circumstances,” the circuit court clearly stated “I’m not sentencing you based on these [Facebook posts]. I want ed to see who you are and who you portrayed yourself to be.” Moreover, the record is rife with examples of the permissible

fact or s considered by the circuit court in sentencing petitioner. Petitioner noted his nearly

twenty

- year battle with alcohol abuse a nd his mere two attempts to address these issues. Further, the State presented petitioner’s eleven

- page criminal history, including eight to ten misdemeanors and at least two prior felonies. The State also advised the court of petitioner’s

blood alcohol co ntent at the time of his arrests for two of the underlying charges , which was very high on both occasions. In considering an appropriate sentence, the circuit court opined “[y]ou’ve got an 11

- page Triple I. Apparently whatever any other judge or magistrate . . . has done hasn’t been enough to specifically deter you from anything.” 4 The circuit court also noted

the defendant for support and any circ umstances that, be cause they affect the

defendant’ s behavior, may be helpful in imposing sentence, determining the propriety and conditions of release on probation, or determining correctional

treatment;

(B) a victim impact statement, pursuant to Chapter 61, Article 11A, Section 3 of the West Virginia Code of 1931, as amended, unless the court orders otherwise, if the defendant, in committing a felony or misdemeanor, caused physical, psychological or economic injury or death of the victim; and

(C) any oth er information required by the court.

4 The Interstate Identification Index, or “Triple I,” is “an index

- pointer system that allows
for the exchange of criminal history records (‘rap sheets’ ). The [Triple I] stores the criminal history records of Federal o ffenders and those offenders submitted by participating and

(continued . . .)5

that petitioner was “going to kill somebody, ” given his continued driving under the influence of

alcohol. Based upon the totality of these circumstan ces, the circuit court sentenced petitioner to

an effective two

- to

- eight

- year sentence, which was within statutory limits. To the extent that petitioner argues that his sentences should have been ordered to run concurrently rather than consecutively, we no te that

“‘“[w] hen a defendant has been convicted of two separate crimes, before sentence is pronounced for either, the trial court may, in its discretion, provide that the sentences run concurrently, and unless it does so provide, the sentences

will run consecutively.” Syllabus point 3, Keith v. Leverette , 163 W.Va. 98, 254 S.E.2d 700 (1979).’ Syllabus Point 3, State v. Allen , 208 W.Va. 144, 539 S.E.2d 87 (1999).” Syl. Pt. 7, State ex rel. Farmer v. McBride , 224 W.Va. 469, 686 S.E.2d 609 (2009).

Syl. Pt. 4, State v. Marcum , 238 W. Va. 26, 792 S.E.2d 37 (2016). As such, it was entirely within the circuit court’s discretion to order that petitioner’s sentences run consecutively. We find no error given th e circuit court’s clear comment that it was not senten cing petitioner based upon the Facebook posts and the strength of the factors actually relied upon by the court in sentencing petitioner.

Because we find no error, we need not address the remaining factors of the plain error doctrine analysis. Neverthel ess, even assuming for the sake of argument that there was an error that was plain and affected his substantial rights, petitioner’s claims still fail as he fails to prove that the circuit court’s consideration of his Facebook pages “ seriously affect[ed] t he fairness, integrity, or public reputation of the judicial proceedings .” Here, petitioner conceded that he was given an opportunity to address the circuit court’s questions regarding his Facebook pages, including the ability to deny that he authored the posts. Further, petitioner concedes that the circuit court could have, and “ maybe should have,” directed the probation officer to look at petitioner’s Facebook pages to determine whether that information warranted inclusion in the

pre sentence investigation report, see n. 2, which clearly was within the court’s consideration. Lastly, as noted above, there were significant factors apart from petitioner’s Facebook posts which supported his sentence. Accordingly, if any error occurred, we find it to be harmless

.

For the foregoing reasons, the circuit court’s August 24 , 2018

, sentencing order is hereby

affirmed

.

Affirmed.

non

‐ participating [Triple I] States.” Privacy Impact Assessment for the Fingerprint Identification
Records System (FIRS) Integrated Automated Fingerprint Identification System (IAFIS) Outsourcing for Noncriminal Justice Purposes

- Channeling, https://www.fbi.gov/services/information

- management/foipa/privacy

- impact

- assessments/firs

iafis (last visited September 30, 2019).6

ISSUED: January 17, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice E van H. Jenkins

Justice John A. Hutchison