Clarification of Sentencing Enhancements Under West Virginia Code §60A-4-408: Fact of Prior Conviction and PSR Objections

Introduction

The Supreme Court of Appeals of West Virginia in State of West Virginia v. Heather L. Hewitt, No. 23-413 (Apr. 22, 2025), addressed a critical procedural and substantive question under West Virginia Code §60A-4-408: what proof is required to double penalties for a “second or subsequent” controlled‐substance offense, and what role does the presentence report (PSR) play when enhancing a sentence. The petitioner, Heather L. Hewitt, had pled guilty to conspiracy to deliver methamphetamine and delivery of fentanyl. At sentencing, the circuit court doubled her term based on a prior felony drug conviction reflected in a PSR. Hewitt challenged the legality of the enhanced sentence, arguing that the record lacked sufficient information about her earlier offense. The Court affirmed the sentencing order, clarifying both the statutory requirement of §60A-4-408 and the procedural rule on PSR objections.

Summary of the Judgment

The Supreme Court of Appeals unanimously held that:

1. West Virginia Code §60A-4-408 requires only the fact of a prior controlled‐substance felony conviction to authorize doubling of penalties on a subsequent conviction.
2. The petitioner did not preserve any challenge to the accuracy or admissibility of the prior conviction information in her PSR, having failed to file timely objections under Rule 32(b)(6) of the West Virginia Rules of Criminal Procedure.
3. The circuit court properly accepted the PSR as fact, granted its sentencing enhancement discretion under §60A-4-408, and imposed consecutive enhanced terms totaling sixty‐six to ninety years of imprisonment.

Accordingly, the Court affirmed the sentencing order without requiring oral argument, finding no error in either law or procedure.

Analysis

1. Precedents Cited

• State v. Sims, 162 W.Va. 212, 248 S.E.2d 834 (1978) – Established that a direct appeal lies from a guilty plea when there is a question as to voluntariness or the legality of the sentence.
• State v. Rutherford, 223 W.Va. 1, 672 S.E.2d 137 (2008) – Confirmed that §60A-4-408 enhancement requires only the fact of a prior qualifying conviction before imposition of the subsequent sentence.
• State v. Bleck, 243 W.Va. 293, 843 S.E.2d 775 (2020) – Emphasized the necessity of timely objection to the presentence report under Rule 32(b)(6) as a prerequisite to challenging its contents at sentencing.

These cases collectively informed the Court’s conclusion that the statutory threshold for enhancement is minimal and that procedural safeguards demand early objections to PSR content.

2. Legal Reasoning

The Court’s reasoning bifurcates into statutory interpretation and procedural rule enforcement:

1. Statutory Interpretation of §60A-4-408
   Subsection (a) authorizes up to “twice the term otherwise authorized” for a “second or subsequent” Chapter 60A felony. Subsection (b) defines “second or subsequent” based solely on the existence of a prior narcotics‐related conviction. The Court reiterated Rutherford’s holding that nothing more—such as proof of substance type, quantity, or date—is mandated by the statute.
2. Procedural Requirements for PSR
   West Virginia Rule of Criminal Procedure 32(b)(6)(B) requires the defendant to file objections to any material information in the PSR before sentencing. Rule 32(b)(6)(C) then allows the court to accept the report as fact where objections are absent or resolved. Here, Hewitt raised no challenge to the PSR’s recounting of her 2009 felony “obtaining a controlled substance by fraud,” which included her admission of stealing a prescription for sixty Roxicodone tablets. Absent any objection, the circuit court properly relied on the PSR in doubling her sentence.

3. Impact

This decision carries significant implications:

• Sentencing courts are reminded that §60A-4-408 enhancements rest only on the fact of a prior conviction, streamlining proof requirements.
• Defense counsel must vigilantly review and, if necessary, object to PSR content to preserve appellate challenges to any prior‐conviction enhancements.
• The decision reinforces the binding effect of Rutherford and Bleck, producing greater predictability in controlled‐substance sentencing practice.

Complex Concepts Simplified

• Presentence Report (PSR): A document prepared by probation officers detailing a defendant’s background, criminal history, and other relevant facts. It guides a judge in sentencing.
• Recidivist Information: A formal charging instrument seeking enhanced penalties for repeat offenders under statutes like W.Va. Code §61-11-18. In this case, the State agreed not to file one in exchange for a plea.
• Determinate vs. Indeterminate Sentence: A determinate sentence specifies fixed minimum and maximum terms (e.g., two to thirty years); an indeterminate sentence provides only minimum and maximum bounds without fixed release dates.
• Sentence Enhancement: The legal process by which a defendant’s penalty is increased—here, up to double—due to prior convictions.

Conclusion

State v. Hewitt affirms that under West Virginia Code §60A-4-408, proof of a prior controlled‐substance felony conviction suffices to permit sentence doubling, and that procedural rules require timely objections to the PSR to contest any enhancement facts. The ruling underscores defense counsel’s obligation to scrutinize PSR details and preserves the legislature’s intent to streamline recidivist sentencing by focusing on the existence of past convictions rather than their granular specifics. As a result, both sentencing judges and practitioners gain clarity on the interplay between substantive enhancement statutes and procedural sentencing safeguards in West Virginia’s controlled‐substance jurisprudence.