Date: May 5, 2026

Conditional Pleas Do Not Create Appellate Finality: West Virginia Criminal Appeals Require Sentence as the Final Judgment

I. Introduction

In State of West Virginia v. Richard A. Hensley Jr. (Apr. 30, 2026), the Supreme Court of Appeals of West Virginia dismissed a defendant’s attempted appeal from a pre-sentencing “plea and conviction order” entered after a conditional no-contest plea designed to preserve appellate review of an adverse suppression ruling.

Parties. The State of West Virginia (respondent) prosecuted Richard A. Hensley Jr. (petitioner/defendant) for multiple counts of wanton endangerment involving a firearm.

Key issue. Whether the Court had appellate jurisdiction under West Virginia Code § 58-5-1(c) (2022) to review a preserved suppression issue when the defendant had been convicted by conditional plea but had not yet been sentenced.

Context. The circuit court accepted the conditional plea, expressly contemplated an appeal, and continued sentencing pending the Supreme Court’s review. The Supreme Court asked for supplemental briefing on whether the appealed order was final or otherwise appealable.

II. Summary of the Opinion

The Court held it lacked jurisdiction because the appealed order was not a “final judgment” within the meaning of West Virginia Code § 58-5-1(c). It dismissed the appeal without prejudice, explaining that in criminal cases the “final judgment” for purposes of appeal is the sentence.

The Court issued a new, clarifying syllabus point:

“Before invoking this Court's appellate jurisdiction in a criminal action under West Virginia Code § 58-5-1(c) (2022), a defendant must be convicted and sentenced; the sentence constitutes the ‘final judgment’ from which a defendant may appeal.”

The decision also makes clear that compliance with Rule 11(a)(2) (conditional pleas) and State v. Hosea does not itself create appellate jurisdiction before sentencing.

III. Analysis

A. Precedents Cited (and How They Drove the Result)

Nat'l Union Fire Ins. Co. v. Westlake Chem. Corp. (Syl. Pt. 1) (quoting Syl. Pt. 2, in part, Smith v. Andreini) anchored the threshold principle that the Court’s appellate power must come from the Constitution or legislative grant. This set up the Court’s move to the controlling jurisdictional statute, not the criminal rules.
James M.B. v. Carolyn M. supplied the Court’s framework for identifying and enforcing the “rule of finality,” including that (i) courts must examine their own jurisdiction and (ii) appeals generally lie only from final decisions. The Court relied on James M.B. both for the definition of finality and for the idea that exceptions are “rare.”
State ex rel. Universal Underwriters Ins. Co. v. Wilson and Chrystal R.M. v. Charlie A.L. supported the de novo standard for jurisdiction/statutory interpretation, reinforcing that the question was legal and antecedent to merits review.
State v. Hosea provided the state-law requirements for accepting conditional pleas under W. Va. R. Crim. P. 11(a)(2) (case dispositiveness, reviewability without a full trial, and on-the-record findings). The Court used Hosea to acknowledge that the parties followed proper conditional-plea procedure—yet emphasized that proper procedure does not override the statutory final-judgment requirement.
State v. Proctor, quoting State v. Greene, was used for the waiver rule: unconditional guilty pleas waive antecedent, nonjurisdictional defects, while conditional pleas preserve specified issues only if Rule 11(a)(2) is followed. This supported the policy value of conditional pleas but did not supply jurisdiction.
State v. Lilly (Cleckley, J., concurring), quoted in State v. Hosea, provided the judicial-economy rationale: conditional pleas can prevent “lengthy trial merely to preserve” pretrial issues. Again, the Court treated this as policy context, not as a jurisdictional key.
Federal finality authorities—Flanagan v. United States and United States v. Hollywood Motor Car Co., Inc.—were cited (via James M.B.) to describe finality as a longstanding bar on piecemeal appellate review. The Court later used Flanagan again to reinforce that under the analogous federal statute, finality in criminal matters requires conviction and sentence.
Coleman v. Sopher reinforced the “usual prerequisite” of a final judgment that “ends this case,” further narrowing the possibility that a plea-and-conviction order could qualify as appealable when sentencing is outstanding.
On exceptions, the Court referenced Durm v. Heck's, Inc. (quoting Thompson v. Betts) to describe the collateral order doctrine’s three-part test, and concluded that (even assuming the doctrine could apply in criminal cases) a suppression ruling does not meet the “effectively unreviewable” prong because it can be reviewed after final judgment.
Berman v. United States supplied the decisive definition: “Final judgment in a criminal case means sentence. The sentence is the judgment.” The Court imported this concept to interpret what “final judgment” means in West Virginia criminal appeals under § 58-5-1(c).
West Virginia criminal cases—State v. Simon and State v. Doom—were cited to show prior usage treating sentencing orders as “final,” even if the Court had not previously made the rule explicit as a jurisdictional prerequisite.
Finally, State v. Sims was cited to illustrate why sentencing-first avoids piecemeal appeals: after sentencing, additional issues (e.g., voluntariness of the plea, legality of the sentence) may also be raised in a single direct appeal.

B. Legal Reasoning

Jurisdiction must be statutory/constitutional, not merely procedural. The Court treated Rule 11(a)(2) as a mechanism for preserving issues, not as a source of jurisdiction. Its opening move—via Nat'l Union Fire Ins. Co. v. Westlake Chem. Corp. and Smith v. Andreini—frames the analysis: jurisdiction cannot be presumed from sound practice or party agreement.
The controlling grant is West Virginia Code § 58-5-1(c). That statute permits a defendant to appeal “from a final judgment ... in which there has been a conviction.” The Court read “final judgment” as a jurisdictional prerequisite.
Finality in criminal cases requires sentencing. Using James M.B. v. Carolyn M. to define finality (nothing left to do but execute the judgment), and Berman v. United States to specify what “final judgment” means in criminal matters, the Court concluded that conviction alone is not final; sentencing is the act that ends the case on the merits for appellate purposes.
Conditional pleas preserve issues “on appeal from the judgment,” but do not accelerate finality. The Court emphasized the text of Rule 11(a)(2)—reservation of issues “on appeal from the judgment”—and reconciled it with § 58-5-1(c) by identifying the “judgment” in a criminal case as the sentence.
The appealed order itself confirmed non-finality. The plea and conviction order expressly continued the matter, contemplated further hearings, and deferred sentencing pending the Supreme Court’s resolution—features inconsistent with a final judgment.
No applicable exception applied. The Court noted the “rare” exceptions referenced in James M.B. (e.g., prohibition, certified questions), and rejected collateral-order treatment because suppression rulings are reviewable after final judgment, thus failing the “effectively unreviewable” element (citing Durm v. Heck's, Inc.).

C. Impact

Bright-line jurisdictional rule for criminal appeals. The new syllabus point removes ambiguity: even after a conditional plea, the defendant must be sentenced before appealing under § 58-5-1(c).
Changes plea practice logistics. Circuit courts may no longer “pause” sentencing simply to allow immediate appellate review of a preserved suppression issue. The proper sequence is: conditional plea (if appropriate) → sentencing (final judgment) → appeal.
Reinforces anti-piecemeal policy. By forcing post-sentencing appeals, the rule encourages consolidation of all appealable issues (suppression, voluntariness, legality of sentence), as highlighted via State v. Sims.
Likely procedural downstream effects. Defendants and courts may more frequently use post-sentencing mechanisms (e.g., bond/stay practices) to avoid serving a sentence while a preserved suppression issue is on appeal—without attempting to manufacture interlocutory appellate jurisdiction.

IV. Complex Concepts Simplified

Appellate jurisdiction: The legal authority of an appellate court to hear a case. If the statute requires a “final judgment” and there is none, the appellate court must dismiss even if the issue is important.
Rule of finality / final judgment: The principle that appeals generally must wait until the trial court has finished the case. In criminal cases, this opinion clarifies that “finished” means the defendant has been convicted and sentenced.
Conditional plea (W. Va. R. Crim. P. 11(a)(2)): A guilty or no-contest plea that preserves a specific pretrial ruling (like suppression) for appeal, if the court and State approve and certain findings are made (per State v. Hosea). It preserves an issue for appeal; it does not itself create an immediate right to appeal before final judgment.
Suppression ruling: A decision on whether evidence was unlawfully obtained and must be excluded. Such rulings are typically reviewed on direct appeal after final judgment.
Collateral order doctrine: A narrow exception allowing appeal of certain interlocutory orders that conclusively decide an important, separate issue that would be effectively unreviewable later. The Court indicated a suppression ruling is reviewable later, so it does not qualify here.
Dismissed “without prejudice”: The appeal is dismissed now, but the defendant may appeal later after sentencing, because the merits were not decided.

V. Conclusion

State v. Hensley establishes a clear jurisdictional rule: in West Virginia criminal cases appealed under West Virginia Code § 58-5-1(c), a defendant must be convicted and sentenced before the Supreme Court of Appeals can exercise appellate jurisdiction, even where the defendant entered a proper conditional plea under W. Va. R. Crim. P. 11(a)(2). The decision strengthens the rule against piecemeal appeals, aligns West Virginia finality with the federal conception articulated in Berman v. United States, and clarifies that conditional pleas preserve issues for appeal only once a true “final judgment” exists—i.e., the sentence.