State of West Virginia v. Bruce Edward Bird, Jr. ( 2023 )

FILED
June 13, 2023
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
State of West Virginia,
Plaintiff Below, Respondent
vs.) No. 22-0119 (Clay County CC-08-2015-F-22)
Bruce Edward Bird, Jr.,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Edward Bird, Jr. appeals the order of the Circuit Court of Clay County, entered
on January 13, 2022, sentencing him to consecutive determinate sentences of fifty years each for
his convictions of two counts of first-degree robbery in violation of West Virginia Code § 61-2-
12(a). Mr. Bird’s convictions are based on pleas he entered pursuant to an agreement with the
State.1 On appeal, Mr. Bird argues that his sentence is unconstitutional, and that he received
ineffective assistance of counsel leading to the entry of his pleas. Upon our review, we determine
that oral argument is unnecessary and that a memorandum decision is appropriate. See W. Va. R.
App. Proc. 21.
Mr. Bird was indicted in July 2015 on one count of robbery and one county of conspiracy
to commit robbery. When he appeared for a pretrial hearing in November 2015, Mr. Bird’s counsel
advised the court that Mr. Bird had reached an agreement with the State under which he would
plead guilty to the robbery count charged in the indictment, and he would plead “no contest” to an
additional count of robbery charged in an information filed that day, after Mr. Bird waived
indictment. In exchange for his agreement to plead, the State agreed that it would not prosecute
Mr. Bird for conspiracy or for a third, uncharged felony that was based on the robbery of a gas
station close in time to the robberies charged by indictment and information.
The circuit court allowed Mr. Bird to offer his plea at that hearing. The State explained that
it would prove, concerning the first count, that Mr. Bird used a machete to threaten gas station
employees and steal money from the gas station. It explained that, concerning the second count, it
would prove that Mr. Bird used a knife to threaten a later victim from whom he stole narcotics.
The State further asserted that Mr. Bird committed these robberies with a co-conspirator who had
already offered testimony about the events. The circuit court engaged Mr. Bird in a thorough plea
colloquy, and Mr. Bird assured the court that he understood the charges against him, was fully
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Mr. Bird was first sentenced for this conviction in January 2016. The order on appeal
memorializes Mr. Bird’s re-sentencing for purposes of appeal. Petitioner appears by counsel Jared
S. Frame. The State appears by Attorney General Patrick Morrisey and Assistant Attorney General
Courtney M. Plante.
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aware of his rights, and was satisfied with his representation. The court accepted Mr. Bird’s guilty
plea to the robbery for which he was indicted and his nolo contendre plea, by way of information,
to the additional robbery.
Mr. Bird appeared for his sentencing hearing the following January. At the hearing, Mr.
Bird’s counsel advised the court that he believed that Mr. Bird “had given an indication to another
counsel” that he wished to withdraw his plea. The court asked Mr. Bird if he wanted the court to
consider allowing him to withdraw his plea, and he responded, “I would rather just proceed with
this and get it over with.” The sentencing proceeded, with the State recommending that Mr. Bird
be given consecutive sentences, but also recommending that the second term of imprisonment be
suspended in favor of five years of supervised probation. The circuit court advised the parties that
it had reviewed Mr. Bird’s presentence investigation report and found that Mr. Bird had a
“significant criminal history” and that the robberies elevated the seriousness of Mr. Bird’s criminal
endeavors. The court declined to accept the State’s recommendation that the second sentence be
suspended, and it sentenced Mr. Bird to an aggregate determinate term of one-hundred years, as
described above.
Mr. Bird argues, first, that his sentence is unconstitutional because it is not proportionate
to his offenses. It is settled that “[s]entences imposed by the trial court, if within statutory limits
and if not based on some unpermissible factor, are not subject to appellate review.” Syl. Pt. 4, State
v. Goodnight, 169 W. Va. 366, 287 S.E.2d 504 (1982). That guideline is tempered, however, by
the Eight Amendment’s “‘proportionality principle: “Penalties shall be proportioned to the
character and degree of the offence.”’ Syllabus point 8, State v. Vance, 164 W.Va. 216, 262 S.E.2d
423 (1980).” Syl. Pt. 4, in part, State v. Booth, 224 W. Va. 307, 685 S.E.2d 701 (2009). We apply
two tests to evaluate the proportionality of a sentence. “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.” State v. Cooper, 172 W. Va. 266, 272, 304 S.E.2d 851, 857 (1983). The second
is an objective inquiry, requiring us to give consideration “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.”
Id. (quoting Syl. Pt. 5, Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981)).
Having considered Mr. Bird’s sentence under each of these tests, we find that the circuit court did
not err in sentencing.2
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When considering these principles, we are additionally mindful that “‘[w]hile 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.’ Syllabus point 4, Wanstreet v. Bordenkircher, 166 W.Va.
523, 276 S.E.2d 205 (1981).” State v. Booth, 224 W. Va. 307, 308, 685 S.E.2d 701, 703, Syl. Pt.
3. Mr. Bird was sentenced for his convictions of aggravated robbery, a crime for which there is no
statutory maximum.
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Mr. Bird was twenty-nine years old when sentenced in 2016, and he disputes the circuit
court’s characterization of his criminal history as “significant.” Having independently reviewed
Mr. Bird’s presentence investigation report, we agree that his criminal history is comprised largely
of misdemeanor offenses and traffic violations. We do not, however, disagree with the circuit
court’s description that it is “significant.” Prior to the robbery charges to which Mr. Bird pled, he
accumulated no fewer than twenty criminal charges. More importantly, we agree with the circuit
court that the events of 2015 showed a dramatic and concerning escalation in Mr. Bird’s conduct.
The robberies to which Mr. Bird pled occurred within days of one another, and though the
robberies appeared to be propelled by significant addiction, it is also apparent that Mr. Bird did
not act on spontaneous impulses. Not only did he act in concert with others, but he also, for
example, purchased the machete for the first robbery four days before committing the robbery.
Moreover, the presentence investigation report describes a third robbery (for which Mr. Bird was
not charged) that occurred close in time to the others. The presentence investigation report further
showed that Mr. Bird reported that he began using drugs at a young age, that he began to use them
intravenously in 1999, and that he had been using drugs (including heroin, “crank,” and various
narcotics) almost continuously since that time. This admission, coupled with the uncontroverted
evidence that the robberies to which Mr. Bird pled were violent and drug-fueled, provides a
substantial basis for the sentence imposed by the circuit court. When considering these details
under the subjective test, we do not find that the sentence shocks the conscience. Furthermore, Mr.
Bird addresses the objective test only tersely. Though he offers State v. Buck, 173 W. Va. 243, 314
S.E.2d 406 (1984) and State v. Cooper, 172 W. Va. 266, 304 S.E.2d 851 (1983) as supporting
precedent, he acknowledges that the appellants in those cases had, respectively, no criminal history
as an adult or only one prior arrest. He additionally acknowledges that the Cooper appellant used
no weapon in the commission of his crime. As detailed above, these circumstances are not
comparable to those of Mr. Bird. We find no error.
We turn to Mr. Bird’s second assignment of error, in which he argues that his counsel was
ineffective. He argues several bases to support this assignment, but his primary focus is on his
assertion that his counsel failed to challenge the validity of a confession that he gave to officers
investigating the robberies. Because the confession was left unchallenged, Mr. Bird argues that
circumstances “basically forced him into the plea agreement,” which, he argues, was not
adequately explained to him. This matter is before us on Mr. Bird’s direct appeal of his re-
sentencing order. We have explained:
It is the extremely rare case when this Court will find ineffective assistance
of counsel when such a charge is raised as an assignment of error on a direct appeal.
The prudent defense counsel first develops the record regarding ineffective
assistance of counsel in a habeas corpus proceeding before the lower court, and
may then appeal if such relief is denied. This Court may then have a fully developed
record on this issue upon which to more thoroughly review an ineffective assistance
of counsel claim.
Syl. Pt. 10, State v. Triplett, 187 W. Va. 760, 421 S.E.2d 511 (1992). Mr. Bird has offered no
reason that this is among the rare cases in which we would consider his claim of ineffective
assistance of counsel on direct appeal and we, therefore, decline to do so. Nevertheless, having
reviewed Mr. Bird’s plea colloquy, wherein he repeatedly assured the circuit court that he was
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satisfied with his representation, we offer Mr. Bird the caution that he faces a substantial hurdle to
develop evidence that would persuade a habeas court that his counsel did not adequately represent
his interests.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: June 13, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
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