State of West Virginia v. Scotty Joseph Byers

• Court: West Virginia Supreme Court
• Decided: June 14, 2022
• Docket: 20-0706
• Status: Separate

Opinion

FILED June 14, 2022 released at 3:00 p.m. No. 20-0706 – State v. Scotty Joseph Byers. EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA Armstead, Justice, dissenting

In this matter in which Petitioner challenges his criminal sentence on the

grounds that he was required to appear at sentencing via video conference, the majority

finds that 1) the circuit court committed error by denying Petitioner’s request to physically

appear at his sentencing hearing, and 2) this error is subject to a harmless error analysis.

Because I believe that even if the majority is correct that error did occur, such error was

harmless, I respectfully dissent. Petitioner did not suffer any prejudice as a result of

appearing at the sentencing hearing via video conference. In fact, the circuit court imposed

a lighter sentence than that sought by the State and had compelling reasons to reject

Petitioner’s request for an alternative sentence.

As noted by the majority, when the circuit court held Petitioner’s sentencing

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

in the early stages, of the COVID-19 pandemic. While this Court’s May 6, 2020, COVID-

related order provided that “[i]n-person hearings may commence on or after May 18,

2020[,]” it also indicated that “remote hearings and proceedings are still permitted and

encouraged, if appropriate.” See Supreme Court of Appeals of West Virginia,

Administrative Order, Resumption of Operations (May 6, 2020). I further note that the

majority relies on a number of cases that were decided before the COVID-19 pandemic in

support of its conclusion that 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

1 a critical stage of the criminal proceedings. I believe these cases, decided prior to the

COVID-19 pandemic, provide little guidance on how courts should balance a criminal

defendant’s right to be present with the need for reasonable restrictions, necessitated by

COVID-19, to protect the health of such defendants as well as all persons involved in the

proceedings. 1 While I believe the COVID-19 pandemic justified certain remote

proceedings in criminal cases where sufficient safeguards were taken to protect the

Constitutional rights of the accused, even if the majority is correct that, in this case, the

circuit court erred by not allowing the Petitioner to appear in person at sentencing, I believe

such error was harmless.

This Court has provided that “harmless error [is] firmly established by

statute, court rule and decisions as salutary aspects of the criminal law of this State.” Syl.

Pt. 4, in part, State ex rel. Grob v. Blair, 158 W. Va. 647, 214 S.E.2d 330 (1975). The

United States Supreme Court has recognized that “[m]ost errors, including constitutional

ones are subject to harmless error analysis.” Sullivan v. Louisiana, 508 U.S. 275, 278,

1 It is possible that in balancing circumstances surrounding the COVID-19 pandemic with a defendant’s right to appear at a sentencing hearing in-person, it would be permissible for a court to conduct the hearing by video conference as long as sufficient safeguards were provided to the defendant. See Gibson v. Commonwealth of Kentucky, No. 2020-SC-0250- MR, 2021 WL 3828558, *4 (Ky. Aug. 26, 2021) (“[Defendant] was not at a greater disadvantage than anyone else involved in the hearing. With all parties participating remotely, every member had the same difficulties observing each other’s demeanor and gaining the kind of information only available with face-to-face confrontations. Finally, the pandemic created a strong, albeit temporary, public interest in ensuring the safety of all parties involved by requiring remote participation. Consequently, the trial did not err by holding his sentencing hearing remotely.”). 2 (1993). Where there is “‘grave doubt’ regarding the harmlessness of errors affecting

substantial rights,” reversal is required. O’Neal v. McAninch, 513 U.S. 432, 437 (1995).

In arguing that the error in this case was not harmless, Petitioner notes that

he did not receive the alternative sentence he requested during the sentencing hearing and

that the outcome may have been different if he was allowed to appear in person. In his

brief to this Court, Petitioner provides that “[s]entencing was Petitioner’s last opportunity

to convince the trial court he was serious about his recovery. . . . Petitioner and counsel

developed a plan to request alternative sentencing and Petitioner was very motivated to

fight for his sobriety.”

Further, Petitioner argues that the State has failed to offer any proof that his

virtual sentencing did not cause him to receive a harsher sentence. In essence, Petitioner

asserts that it is impossible to conclude with certainty what sentence the circuit court would

have imposed if he had been permitted to attend the hearing in person.

By contrast, the State asserts that Petitioner’s appearance by video

conference was harmless beyond a reasonable doubt. The State notes that Petitioner’s

primary argument during sentencing was that his history of criminal misconduct was the

result of his substance addiction.2 During sentencing, it was revealed that Petitioner had

completed a treatment program during his previous incarceration and that he nevertheless

continued to have substance abuse issues. The State asserts that the circuit court would not

2 Procedurally, the circuit court assured Petitioner that, in the event he wished to speak privately with his counsel, (who was also participating via video conference), the court would accommodate such request. 3 have been swayed by Petitioner’s physical presence at sentencing because of the

undisputed fact that he had previously undergone substance abuse treatment that had not

been successful. Further, the State emphasizes that the circuit court did not impose the

maximum sentence and denied the State’s request to run all of the sentences consecutively.

Instead, the State asserts that the “circuit court analyzed the sentencing issues in this case

and the Petitioner’s physical presence would not have altered the circuit court’s sentence

of him.”

Upon review, I find that Petitioner’s arguments for why the sentence may

have been different if he was physically present during the sentencing hearing do not have

merit. I agree with the State that the circuit court considered all of the relevant factors in

imposing the sentence it reached. The circuit court had two compelling reasons for

rejecting Petitioner’s request for an alternative sentence. First, Petitioner had previously

completed a substance abuse treatment program and he nevertheless continued to have a

substance abuse problem. Second, as noted by the State during the sentencing hearing,

Petitioner had been granted probation in 2002 but had violated the terms of that probation.

The State asserted that if Petitioner received an alternative sentence there was no

indication, based on his previous history, that he would comply with the terms of the

alternative sentence. Additionally, one factor weighing heavily in favor of finding that the

error in this matter was harmless is that the circuit court did not impose the sentence

requested by the State; instead, it ran a portion of Petitioner’s sentence concurrently.

4 Based on all of the foregoing, I would find that the error in this case was

harmless beyond a reasonable doubt. Therefore, I respectfully dissent.