FILED
August 27, 2021
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
State of West Virginia,
Plaintiff Below, Respondent
vs.) No. 20-0244 (Cabell County 14-F-47)
Russell A. Black,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Russell A. Black, by counsel Timothy P. Rosinsky, appeals the February 19,
2020, order of the Circuit Court of Cabell County denying his motion for correction or reduction of
sentence under Rule 35 of the West Virginia Rules of Criminal Procedure. The State of West
Virginia, by counsel Karen C. Villanueva-Matkovich, filed a response in support of the circuit
court’s order. On appeal, petitioner argues that the circuit court erred in denying his Rule 35 motion
and in applying the wrong standard to find that he violated the terms and conditions of his
supervised release.
The Court has considered 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.
The underlying facts regarding petitioner’s crimes are not readily apparent from either the
parties’ briefs or the appendix record on appeal. What is clear is that, in March of 2014, petitioner
was indicted on four counts of third-degree sexual assault. In November of 2015, petitioner entered
a plea agreement whereby he agreed to plead guilty to one count of third-degree sexual assault in
exchange for the State’s agreement to dismiss the remaining charges. The circuit court sentenced
petitioner to one to five years of incarceration and imposed thirty years of supervised release
pursuant to West Virginia Code § 62-12-26 (2015). Due to time already served, petitioner was
released from incarceration later in November of 2015 and began his supervised release.
The State filed a petition to revoke petitioner’s supervised release in August of 2016 based
upon his eleven violations of the terms of that release. Petitioner admitted to the violations, and the
circuit court imposed five years of incarceration. Petitioner discharged that sentence in January of
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2019 and was released. The State then filed a second petition to revoke petitioner’s supervised
release in May of 2019, alleging that petitioner engaged in multiple violations, including failing to
remain in contact with his supervised release officer, failing to report purchasing a tablet and a cell
phone, and having pornographic images on his unreported devices.
In June of 2019, the circuit court held a hearing on the State’s motion to revoke petitioner’s
supervised release and heard testimony from petitioner and his supervised release officer. Petitioner
admitted that he missed an appointment with his supervised release officer but blamed his absence
on his hospitalization due to a broken neck. Petitioner further admitted to purchasing both a cell
phone and a tablet without immediately reporting them to his supervised release officer. Lastly,
petitioner admitted that there were pornographic images on his cell phone. However, petitioner
testified as to mitigating circumstances, which he believed lessened the severity of these violations.
Specifically, petitioner testified that, several years prior, he married his wife over the internet. He
further testified that he had only met his wife once and had recently become aware that she was in
the pornography business. Petitioner stated that he and his wife shared a Google account, which
provided his wife access to his phone. Petitioner claimed that his wife put pictures of herself on
petitioner’s phone, opened social media accounts in his name, and perused adult dating and
pornography websites, which appeared on petitioner’s phone via the shared Google account.
Petitioner testified that he did not report the devices to his supervised release officer because he
knew he would be in violation of the terms and conditions of his supervised release and was unable
to delete the material from his phone. Petitioner further admitted that he initially refused to give his
cell phone password to the supervised release officer when she located him in order to hide these
violations.
Ultimately, the circuit court found as follows:
Mr. Black, the problem that you have is that you’re addicted to pornography, it’s
just that simple. And you have been suckered by this supposed wife. I doubt you are
actually married to her. . . . This clearly is pornographic material that you are not
allowed to have. And even if you think that this is your wife, this is a number of
different women in different extremely graphic sexual poses [and] activity. That is
all a violation of your supervision. You are a registered sex offender. We did this a
few years ago when I sent you back to prison for five years because you hadn’t
stopped. And I don’t know how else to stop you but to send you back to prison again,
and maybe you will get the message, maybe you won’t. I doubt it because I truly
think you are a sex addict, as I said. You continue to use computers and phones and
everything else in order to feed your habit. So at this time I am going to revoke your
supervision. I’m going to sentence you to 10 years and send you back.
The circuit court memorialized its findings in a July 9, 2019, order. The circuit court found “by a
preponderance of the evidence” that petitioner violated the terms of his supervised release by failing
to appear for monthly check-in appointments, failing to declare his purchase of a new cell phone
and tablet, possessing pornographic material on his cell phone and tablet, temporarily withholding
the password for said devices from his supervised release officer, failing to declare the existence of
social media accounts in his name, and failing to attend his sex offender treatment. Accordingly,
the circuit court sentenced petitioner to ten years of incarceration for these violations.
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In September of 2019, petitioner filed a “motion to reconsider” pursuant to Rule 35 of the
West Virginia Rules of Criminal Procedure. Petitioner argued that the United States Supreme
Court’s decision in United States v. Haymond, 139 S. Ct. 2639 (2019) (plurality opinion),
established that petitioner was entitled to a jury trial on the issue of whether he had violated the
terms and conditions of his supervised release. Alternatively, petitioner argued that the circuit court
could modify his sentence to no greater than the underlying sentence imposed following his plea to
one count of third-degree assault—one to five years of incarceration.
The circuit court held a hearing on petitioner’s Rule 35 motion in January of 2020. By order
entered on February 19, 2020, the circuit court denied petitioner’s motion, finding that Haymond
was distinguishable from the instant case, that the Haymond case was limited in its application, and
that the statute governing petitioner’s supervised release was not implicated by Haymond. This
appeal followed.
This Court has previously held as follows:
In reviewing the findings of fact and conclusions of law of a circuit court
concerning an order on a motion made under Rule 35 of the West Virginia Rules of
Criminal Procedure, we apply a three-pronged standard of review. We review the
decision on the Rule 35 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.
Syl. Pt. 1, State v. Head, 198 W. Va. 298, 480 S.E.2d 507 (1996).
On appeal, petitioner first argues that the circuit court erred in denying his Rule 35 motion
in light of Haymond. Briefly, we note that, in Haymond, the United States Supreme Court addressed
the revocation of a registered sex offender’s supervised release for possession of child pornography,
among other violations. The Supreme Court held that 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,’” is unconstitutional. 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);
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.’”
State v. Raymond B., No. 20-0605, 2021 WL 2580715 at *2 (W. Va. Jun. 23, 2021)(memorandum
decision) (quoting Roman-Oliver v. Joyner, No. 7:19-CV-50-REW, 2019 WL 6696417, at *4 (E.D.
Ky. Dec. 9, 2019)).
At the outset, we note that we need not reach a decision on whether Haymond applies to
petitioner’s case, that is, we need not decide whether petitioner is entitled to a jury trial on whether
he committed the violation on which he is charged because he admitted to violating the terms and
conditions of his supervised release below. Petitioner’s argument is based upon on his mistaken
belief that his supervised release could not have been revoked unless a jury found, beyond a
reasonable doubt, that he violated the terms and conditions thereof. However, a jury trial on this
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issue was not necessary given petitioner’s admission to several violations, including missing his
monthly check-in appointments, failing to report his purchase of both a tablet and a cell phone,
temporarily refusing to provide a password to these devices, and possessing pornography on these
devices. While petitioner provided testimony as to circumstances he believed mitigated these
violations, he nevertheless admitted that they were, in fact, violations. As such, a jury need not have
reached a decision on this issue.
However, even assuming that petitioner did not admit to these violations, this Court has
previously addressed Haymond and rejected its applicability to the revocation of supervised release.
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 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.
Given the foregoing, we find petitioner’s reliance on Haymond for the proposition that he is entitled
to a jury trial on his supervised release revocation to be misplaced. Accordingly, we find that the
circuit court did not err in denying petitioner’s Rule 35 motion.
Petitioner next argues that the circuit court applied the incorrect standard in revoking his
supervised release. Petitioner notes that the circuit court’s July 9, 2019, order revoking his
supervised release and imposing a ten-year sentence provides that the circuit court’s findings were
based upon “a clear preponderance of the evidence.” However, West Virginia Code § 62-12-
26(g)(3) (2015), requires that the circuit court revoke supervised release based on “clear and
convincing” evidence, a more stringent standard. As such, petitioner avers that the order must be
reversed and remanded on this basis.
As noted above, petitioner admitted to violating the terms and conditions of his supervised
release during the proceedings below. Therefore, the clear and convincing standard has been met,
and any misstatement by the circuit court as to the appropriate standard is harmless. Moreover, the
record demonstrates that sufficient evidence existed to find that petitioner violated the terms and
conditions of his supervised release under a clear and convincing standard. Counsel for petitioner
specifically stated that petitioner’s failure to report the cell phone and pornography contained
therein were “technical violation[s], and it is a violation. We’re here to stipulate and admit to it.”
Petitioner did not deny several of the alleged violations but, instead, simply offered his self-serving
testimony in his defense, speaking to what he believed to be mitigating circumstances. The State
presented the testimony of petitioner’s supervised release officer, who also spoke to petitioner’s
numerous violations. We find this evidence sufficient to satisfy the clear and convincing standard
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required under West Virginia Code § 62-12-26(g)(3) (2015), and find that petitioner is entitled to
no relief in this regard.
For the foregoing reasons, the circuit court’s February 19, 2020, order is hereby affirmed.
Affirmed.
ISSUED: August 27, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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