State of West Virginia vs. Raymond B.

Charleston, WV - Criminal defense attorney represented Raymond B. with appealing two orders of the Circuit Court of Fayette County charge off violating the terms and conditions of his extended sex offender supervised release for (1) two counts of sexual assault in the first degree; (2) thirty-four counts of incest; (3) thirty-four counts of sexual abuse by a parent, guardian, or custodian; and (4) thirty-three counts of sexual assault in the second degree. The victim was petitioner's daughter who was under the age of fourteen at the time the alleged incidents occurred.

On March 23, 2010, petitioner pled guilty to one count of incest. The State dismissed the

remaining charges. The circuit court sentenced petitioner to five to fifteen years in prison for his

crime, to be followed by a twenty-year period of supervised release under West Virginia Code §

62-12-26(a), and registration as a sexual offender for life. The circuit court denied petitioner's

FILED

June 23, 2021

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2

motion to reconsider his sentence. On May 30, 2016, petitioner discharged his prison sentence and

began his period of supervised release.

On November 4, 2019, petitioner was arrested pursuant to a "Notice of Hold for Violation”

and a "Notice of Revocation” which charged petitioner with violating three conditions of his

supervised release: (1) Petitioner was terminated from an adult sex offender treatment program

due to his three failed sexual history polygraphs and his "overall lack of progress and motivation

for change;” (2) Petitioner failed to attend required counseling in September of 2019; and (3)

Petitioner failed to report or register a vehicle with his sex offender supervision officer.

On December 20, 2019, petitioner waived his right to a preliminary hearing. On December

23, 2019, petitioner filed a demand for a jury trial in his revocation proceeding under United States

v. Haymond, -- U.S. --, 139 S. Ct. 2369 (2019) (plurality opinion). The State filed a motion in

opposition, arguing that the application of Haymond, a federal case, to West Virginia's extended

supervised release statute was inappropriate because the United States Supreme Court clearly

limited the application of Haymond to the federal statute at issue in that case, 18 U.S.C. § 3583(k).

The State contended that petitioner's case should proceed for a hearing and that the circuit court

should apply the clear and convincing standard outlined in West Virginia Code § 62-12-26(g)

(2015).1

At a hearing on the matter, the parties addressed their respective positions regarding

Haymond's impact on the supervised release revocation process found in West Virginia Code §

62-12-26(g)(3). Following argument, the circuit court, on February 19, 2020, denied petitioner's

demand for a jury trial.

Thereafter, on June 17, 2020, a Fayette County Grand Jury indicted petitioner on four

counts of "failure to register.” On June 18, 2020, the circuit court held petitioner's contested

adjudicatory hearing. The circuit court found that petitioner violated the rules of his supervised

release by clear and convincing evidence. That same day, petitioner asked the court to move

directly to disposition. The circuit court heard recommendations from the parties as to the

appropriate disposition for petitioner's violations and then took disposition under advisement.

As noted above, on July 13, 2020, the circuit court entered two orders: an "Adjudicatory

Probation Revocation Order” and an "Order Relating to Disposition of Extended Supervised

Release Revocation.” In those orders, the circuit court found that petitioner violated three terms

and conditions of his supervised release and sentenced petitioner to fifteen years in prison under

West Virginia Code § 62-12-26(g)(3), to be followed by twenty-five years of extended supervised

release under West Virginia Code § 62-12-26(i).

1 The revocation of petitioner's extended sex offender supervised release is governed by

the 2015 version of West Virginia Code § 62-12-26. See 2015 Acts of the Legislature ch. 80. We

note that after petitioner violated the terms and conditions of his supervised release, the Legislature

substantially amended West Virginia Code § 62-12-26 during the 2020 Session, with the

amendments taking effect on May 17, 2020. See 2020 Acts of the Legislature, ch. 100. The

Legislature again amended the statute during the 2021 Session, with the amendments to take effect

on July 5, 2021. See Senate Bill 361. Neither of these amendments affect the outcome of this case.3

Petitioner now appeals. In Syllabus Point 1 of State v. Duke, 200 W. Va. 356, 489 S.E.2d

738 (1997), this Court held that,

When reviewing the findings of fact and conclusions of law of a circuit court

sentencing a defendant following a revocation of probation, we apply a threepronged standard of review. We review the decision on the probation revocation

motion under an abuse of discretion standard; the underlying facts are reviewed

under a clearly erroneous standard; and questions of law and interpretations of

statutes and rules are subject to a de novo review.

Further, "'[t]he 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).” Syl. Pt. 1, State v. James, 227 W.

Va. 407, 710 S.E.2d 98 (2011).

Petitioner raises three assignments of error on appeal. Petitioner first argues that under

Haymond, the State was required to afford him a jury trial on his probation revocation.

In Haymond, the United States Supreme Court addressed the revocation of a registered sex

offender's supervised release for possession of child pornography and other violations.

Specifically, the Supreme Court considered the constitutionality of 18 U.S.C. § 3583(k), which

"mandates a minimum five-year term of imprisonment for certain supervised release violations

committed by defendants who are 'required to register under the Sex Offender Registration and

Notification Act[.]'” United States v. Salazar, 784 F. App'x 579, 581 (10th Cir. 2019), cert. denied,

140 S. Ct. 1232 (2020) (quoting 18 U.S.C. § 3583(k) and Haymond, 139 S. Ct. at 2374). A fourjustice plurality found that a portion of 18 U.S.C. § 3583(k) was unconstitutional. Haymond, 139

S. Ct. at 2386 (Breyer, J., concurring). Importantly, the Haymond Court emphasized that "its

decision was limited to § 3583(k) and its mandatory minimum provision.” Roman-Oliver v.

Joyner, No. 7:19-CV-50-REW, 2019 WL 6696417, at *4 (E.D. Ky. Dec. 9, 2019).

We first note that, while 18 U.S.C. § 3583(k) is similar to West Virginia Code § 62-12-26,

the two statutes are not the same. For example, unlike 18 U.S.C. § 3583(k), West Virginia Code §

62-12-26 significantly limits the types of offenses that qualify for extended supervised release and

does not require a court to impose a mandatory period of incarceration for specific violations of

supervised release. Second, and more importantly, petitioner was not sentenced under 18 U.S.C. §

3583(k); thus, the Supreme Court's ruling in Haymond expressly does not apply to petitioner's

case. Third, we have previously considered this issue and rejected it. In State v. Edward B., No.

19-1026, 2020 WL 7231608, at *4 (W. Va. Dec. 7, 2020) (memorandum decision), we said:

The Haymond plurality "emphasized” that its decision did not address all

supervised release proceedings but, rather, was "limited to § 3583(k)—an unusual

provision enacted little more than a decade ago—and the Alleyne [v. United States,

570 U.S. 99 (2013)] problem raised by its 5-year mandatory minimum term of

imprisonment.” Haymond, 139 S. Ct. at 2383. West Virginia Code § 62-12-26, the

supervised release statute under which petitioner's supervised release was revoked,

was not addressed in Haymond nor is it similar to § 3583(k). Most notably, West 4

Virginia Code § 62-12-26 does not require imposition of a minimum term of

incarceration "triggered by judge-found facts,” which the Haymond plurality found

problematic. 139 S. Ct. at 2383-84. Thus, petitioner has failed to demonstrate any

error under Haymond, let alone one that is clear or obvious.

In light of the above, petitioner's reliance on Haymond for the proposition that he is entitled to a

jury trial on his probation revocation is clearly misplaced. Accordingly, we reject petitioner's first

assignment of error and find that the circuit court properly ruled that petitioner was not entitled to

a jury trial regarding whether he violated the terms of his extended supervised release.

In petitioner's second assignment of error he argues that his sentence for violating his

supervised release – fifteen years in prison and twenty-five years of supervised release – is

disproportionate to his original sentence of five to fifteen years in prison and twenty-years of

supervised release. Thus, he claims his sentence violates constitutional proportionality principles.

See Syl. Pt. 7, State v. Vance, 164 W. Va. 216, 262 S.E.2d 423 (1980) ("A criminal sentence may

be so long as to violate the proportionality principle implicit in the cruel and unusual punishment

clause of the Eighth Amendment to the United States Constitution.”); see also W. Va. Const. art.

III, § 5 ("Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishment inflicted. Penalties shall be proportioned to the character and degree of the offence. .

. .”).

Two tests are employed in determining whether a sentence violates the proportionality

principles found in Article III, Section 5 of the West Virginia Constitution:

The first is subjective and asks whether the sentence for the particular crime shocks

the conscience of the court and society. If a sentence is so offensive that it cannot

pass a societal and judicial sense of justice, the inquiry need not proceed further.

When it cannot be said that a sentence shocks the conscience, a disproportionality

challenge is guided by the objective test we spelled out in Syllabus Point 5 of

Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981):

In determining whether a given sentence violates the proportionality

principle found in Article III, Section 5 of the West Virginia

Constitution, consideration is given to the nature of the offense, the

legislative purpose behind the punishment, a comparison of the

punishment with what would be inflicted in other jurisdictions, and

a comparison with other offenses within the same jurisdiction.

State v. Cooper, 172 W. Va. 266, 272, 304 S.E.2d 851, 857 (1983).

As set forth above, the circuit court found that petitioner violated the terms of his

supervised release in three ways: First, petitioner allegedly failed to register his vehicle with the

State Police within ten days. Second, the circuit court found that petitioner missed sex offender

therapy sessions. Third, the circuit court found that petitioner failed a polygraph test and was not

fully "invested” in sex offender treatment. Petitioner argues that these three minor violations do

not warrant a prison term of fifteen years followed by twenty-five years of supervised release. 5

We disagree and find that petitioner's fifteen-year prison sentence and twenty-five-year

period of supervised release are not disproportionate to his initial sentence or criminal conduct.

"While our constitutional proportionality standards theoretically can apply to any criminal

sentence, they are basically applicable to those sentences where there is either no fixed maximum

set by statute or where there is a life recidivist sentence.” Wanstreet, 166 W. Va. at 523, 276 S.E.2d

at 207, Syl. Pt. 4. Here, the circuit court sentenced petitioner to a fixed maximum sentence (five

to fifteen years in prison) under West Virginia Code § 62-12-26(g)(3), which provided that a court

may

[r]evoke a term of supervised release and require the defendant to serve in

prison all or part of the term of supervised release without credit for time previously

served on supervised release if the court, pursuant to the West Virginia Rules of

Criminal Procedure applicable to revocation of probation, finds by clear and

convincing evidence that the defendant violated a condition of supervised release,

except that a defendant whose term is revoked under this subdivision may not be

required to serve more than the period of supervised release.

Petitioner was also sentenced to twenty-five years of extended supervision under West Virginia

Code § 62-12-26(a), which provided:

(a) Notwithstanding any other provision of this code to the contrary, any

defendant convicted after the effective date of this section of a violation of [§ 61-

8-12] of this code or a felony violation of the provisions of [§ 61-8B-1 et seq., §

61-8C-1 et seq., and § 61-8D-1 et seq.] of said chapter shall, as part of the sentence

imposed at final disposition, be required to serve, in addition to any other penalty

or condition imposed by the court, a period of supervised release of up to fifty years:

Provided, That the period of supervised release imposed by the court pursuant to

this section for a defendant convicted after the effective date of this section . . . of

a violation of [§ 61-8B-3 or § 61-8B-7] of this code and sentenced pursuant to [§

61-8B-9a] of said article, shall be no less than 10 years: Provided, however, That a

defendant designated after the effective date of this section . . . as a sexually violent

predator pursuant to the provisions of [§ 15-12-2a] of this code shall be subject, in

addition to any other penalty or condition imposed by the court, to supervised

release for life: Provided further, That pursuant to the provisions of [§ 62-12-26(g)]

of this section, a court may modify, terminate, or revoke any term of supervised

release imposed pursuant to [§ 62-12-26(a)] of this section.

Furthermore, West Virginia Code § 62-12-26(i) provided that, upon revocation, the length of any

further term of supervised release "shall not exceed the term of supervised release authorized by

this section less any term of imprisonment that was imposed upon revocation of supervised

release.” Petitioner faced a maximum term of fifty years of extended supervised release, minus the

five to fifteen years of imprisonment, leaving thirty-five years of supervised release, minus what

he had served. Therefore, the twenty-five-year term of supervised release imposed upon petitioner

by the circuit court fell within the maximum possible sentence and is, therefore, not subject to this

Court's review. 6

We also find that petitioner's sentence is not constitutionally disproportionate. As noted

above, the Court has established two tests to determine constitutional proportionality. Petitioner's

sentence passes the first or subjective test. Petitioner's sentence, five to fifteen years in prison and

twenty-five years of extended supervised release, does not shock the conscience. Petitioner was

indicted on 103 sex-related crimes against his biological daughter who was under the age of

fourteen when the crimes were alleged to have occurred. However, petitioner was allowed to plead

guilty to only one felony count, incest, and the remaining charges were dismissed. Moreover,

during the adjudicatory revocation hearing, the State argued for consecutive sentencing on the

ground that petitioner "showed no motivation throughout his . . . treatment” as evidenced by his

going to the home of a juvenile female whom he made very uncomfortable, by his failure to take

his treatment program seriously, and by blaming his victim for his behavior. Petitioner also failed

to appear for counseling appointments and to register his vehicle with the West Virginia State

Police. "Both this Court and the Supreme Court of the United States have recognized the

importance of protecting the public from sexual offenders, which necessitates the need for harsh

deterrent punishments.” State v. Hoyle, 242 W. Va. 599, 612, 836 S.E.2d 817, 830 (2019).

Petitioner's sentence also satisfies the second or objective proportionality test. Regarding

the nature of petitioner's offense, he sexually violated his daughter when she was under the age of

fourteen. Thus, the nature of petitioner's crime does not call into question the proportionality of

petitioner's sentence. As for the legislative intent of West Virginia Code § 62-12-26, we have said

that this statute "reflects the legislative intent to impose a new and additional penalty to the

sentence of a person” who sexually victimizes children. State v. James, 227 W. Va. 407, 418, 710

S.E.2d 98, 109 (2011). "[A]ny sentence short of death, including life without parole, for serious

crimes against the person, passes constitutional muster.” State v. Woodall, 182 W. Va. 15, 25, 385

S.E.2d 253, 263 (1989) (internal quotations admitted) (citing Rummel v. Estelle, 445 U.S. 263

(1980)). Finally, "[b]oth this Court and the Supreme Court of the United States have recognized

the importance of protecting the public from sexual offenders, which necessitates the need for

harsh deterrent punishments.” Hoyle, 242 W. Va. at 612, 836 S.E.2d at 830. As for comparisons

between petitioner's sentence and those imposed in West Virginia and in other jurisdictions,

petitioner fails to address them. Thus, he has waived any argument in that regard.

Petitioner's third and final argument is that the circuit court erred when, during the

adjudicatory hearing, it allowed into evidence the results of petitioner's polygraph examinations.

Petitioner notes that, at his adjudicatory hearing, the State moved to admit the results of the

polygraph examinations he was required to take due to comments he made at a group therapy

session. The circuit court granted the State's motion. Petitioner objected and asserted that, under

West Virginia Code § 62-11D-2, polygraph examinations of sex offenders on supervised release

are not admissible for purposes of adjudication. Section 62-11D-2(b) provides that any sex

offender required to undergo a polygraph examination

shall, at his or her expense, submit to at least one polygraph examination each year

to answer questions relating to his or her compliance with conditions of supervision,

including conditions related to treatment. Additional examinations may be

required, not to exceed a total of five. The results of any examination are not

admissible in evidence and are to be used solely as a risk assessment and treatment 7

tool. Examination results shall be made available to the person under supervision,

upon request.

In allowing the polygraph results to come into evidence via the testimony of petitioner's

probation officer, the circuit court stated as follows: "Well, whether [petitioner] took the polygraph

and complied with the terms and conditions, and whether he passed it, if it was relevant for the

continuing conditions, then it was relevant to the inquiry.” The court added:

If passing the polygraph is a condition for the requirement of the continuation of

therapy, then whether he passed it or not is relevant to that inquiry. It's not relevant

for other purposes, for impeachment or credibility, or whether he's a liar or

untruthful, or any of that. It's just that it happened and could go with therapy. Why

or why not? So it had to come in to prove that fact or not prove that fact.

So it will be admitted—should be allowed to admit whether the polygraph was

passed or allow him to continue treatment.

Petitioner's probation officer then testified that petitioner failed certain polygraph examinations

and, therefore, was precluded from attending group sessions.

We find that the circuit court did not err in admitting evidence that petitioner failed

polygraph examinations for the limited purpose of establishing his risk level and eligibility for

continued treatment under the adult sex offender treatment program. Importantly, continuing

treatment was an essential term and condition of his supervised release. Thus, the court admitted

the polygraph results into evidence solely for the purpose of determining whether petitioner would

be able to complete the program, and not for the purposes whether he was telling the truth.

Therefore, we find no error.

Accordingly, for the foregoing reasons, we affirm both of the circuit court’s orders dated July 13, 2020.



Affirmed