plain error in West Virginia

2026We have indicated that when “counsel did not ask for an instruction when given the opportunity to do so and did not object to the lack of an instruction, any error by the trial court is foreclosed from appellate review unless it rises to the level of plain error.” State v. Miller, 194 W.

2025However, this Court may use the plain error doctrine to correct “particularly egregious errors.” Id. at 18 , 459 S.E.2d at 129 (citation omitted).

2023Va. 294, 315-17 , 470 S.E.2d 613, 634-36 (1996) (discussing the “raise or waive” rule and the discretionary and limited application of the plain error doctrine); State v. Lively, 226 W.

2022“To satisfy the plain error standard, a court must find: (1) there was error in the trial court’s determination; (2) the error was plain or obvious; and (3) the error affected ‘substantial rights’ in that the error was prejudicial and not harmless.” State v. LaRock, 196 W.

2022“The plain-error doctrine . . . authorizes [an appellate court] to correct only ‘particularly egregious errors,’ . . . that ‘seriously affect the fairness, integrity or public reputation of judicial proceedings[.]’” United States v. Young, 470 U.S. 1, 15 , 105 S. Ct. 1038, 1046 , 84 L.

2022“The plain-error doctrine . . . authorizes [an appellate court] to correct only ‘particularly egregious errors,’ . . . that ‘seriously affect the fairness, integrity or public reputation of judicial proceedings[.]’” United States v. Young, 470 U.S. 1, 15 , 105 S. Ct. 1038, 1046 , 84 L.

2014Even then, errors not seasonably brought to the attention of the trial court will justify appellate court intervention only where substantial rights are affected.” LaRock, 196 W.Va. at 316 , 470 S.E.2d at 635 .4 We explained in LaRock: To satisfy the plain error standard, a court must find: (1) there was error in the trial court’s determination; (2) the error was plain or obvious; and (3) the error affected “substantial rights” in that the error was prejudicial and not harmless. [Miller,] 194 W.Va. at 18 , 459 S.E.2d at 129 , citing United States v. Olano, 507 U.S. 725 , 730–32, 113 S.Ct. 1770

2014Even then, errors not seasonably brought to the attention of the trial court will justify appellate court intervention only where substantial rights are affected.” LaRock, 196 W.Va. at 316 , 470 S.E.2d at 635 .4 We explained in LaRock: To satisfy the plain error standard, a court must find: (1) there was error in the trial court’s determination; (2) the error was plain or obvious; and (3) the error affected “substantial rights” in that the error was prejudicial and not harmless. [Miller,] 194 W.Va. at 18 , 459 S.E.2d at 129 , citing United States v. Olano, 507 U.S. 725 , 730–32, 113 S.Ct. 1770

2021This Court has repeatedly stated that “this Court’s application of the plain error rule in a criminal prosecution is not dependent upon a defendant asking the Court to invoke the rule.” State v. Myers, 204 W.

2013Importantly, however, petitioner does not explain the difference between the content of his expert’s diagram 4 Petitioner first claims plain error in his reply brief. 5 In Syllabus Point 1 of State v. Myers, 204 W.Va. 449 , 513 S.E.2d 676 (1998), we held that “[the] application of the plain error rule in a criminal prosecution is not dependent upon a defendant asking the Court to invoke the rule.

2023Va. 388 , 456 S.E.2d 469 (1995) (“A judgment of conviction will not be set aside because of improper remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused or result in manifest injustice.”). “[T]he doctrine of plain error with regard to objectionable closing remarks is sparingly applied” because “[t]here is obviously a considerable tactical advantage to be gained if counsel can remain silent and then press the point on appeal through the plain error doctrine.” State v. Grubbs, 178 W.

2022Petitioner urges us to apply the doctrine of plain error, but he faces an uphill climb as “the doctrine of plain error with regard to objectionable closing remarks is sparingly applied.” State v. Grubbs, 178 W.

2017In State v. Miller, 194 W.Va. 3, 18 , 459 S.E.2d 114, 129 (1995), we stated: “The ‘plain error’ doctrine grants appellate courts,in the interest of justice, the authority to notice error to which no objection has been made.” This Court has held: “To trigger application of the ‘plain error’ doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) -seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Syllabus Point 7, State v. Miller, supra. If these criteria are met this Court may correct the plain error if it

2017In State v. Miller, 194 W.Va. 3, 18 , 459 S.E.2d 114, 129 (1995), we stated: “The ‘plain error’ doctrine grants appellate courts, in the interest of justice, the authority to notice error to which no 23 objection has been made.” This Court has held: “To trigger application of the ‘plain error’ doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Syllabus Point 7, State v. Miller, supra. If these criteria are met this Court may correct the plain error if

2024The launching point for the majority’s new syllabus point is found in footnote eight of Finley, wherein the majority stated: 1 “We use the plain error doctrine “sparingly and only in those circumstances where substantial rights are affected, or the truth-finding process is substantially impaired, or a miscarriage of justice would otherwise result.” Syl. pt. 4, in part, State v. England, 180 W.

2023Va. 3 , 459 S.E.2d 114 (1995). 8 7 The circuit court filed the related sentencing order on January 3, 2022. 8 We use the plain error doctrine “sparingly and only in those circumstances where substantial rights are affected, or the truth-finding process is substantially impaired, or a miscarriage of justice would otherwise result.” Syl. pt. 4, in part, State v. England, 180 W.

2010Pt. 7, State v. Miller, 194 W.Va. 3 , 459 S.E.2d 114 (1995); State v. Spence, 182 W.Va. 472, 481 , 388 S.E.2d 498, 507 (1989)("The plain error rule presupposes that the record is sufficiently developed to discern the error.").

2010Pt. 7, State v. Miller, 194 W.Va. 3 , 459 S.E.2d 114 (1995); State v. Spence, 182 W.Va. 472, 481 , 388 S.E.2d 498, 507 (1989)("The plain error rule presupposes that the record is sufficiently developed to discern the error.").

2020Consistent with our ruling in Drakes, we find the trial court in the instant matter erred by including “sudden excitement” and “heat of passion” in its voluntary manslaughter instruction. 7 This Court has held that “[a]lleged errors of a constitutional magnitude will generally trigger a review by this Court under the plain error doctrine.” State v. Salmons, 203 W.

2018For instance, “[a]lleged errors of a constitutional magnitude will generally trigger a review by this Court under the plain error doctrine.” Salmons, 203 W.

2022Plain error warrants reversal “solely in those circumstances in which a miscarriage of justice would otherwise result.” Id. at 18 , 459 S.E.2d at 129 (citing United States v. Frady, 456 U.S. 152 , 163 n.14 (1982)).

2022“Plain error warrants reversal ‘solely in those circumstances in which a miscarriage of justice would otherwise result.’ United States v. Frady, 456 U.S. 152 , 163 n. 14, 102 S.Ct. 1584 , 1592 n. 14, 71 L.Ed.2d 816 , 827 n. 14 (1982).” Id.

1998However, this Court’s application of the plain error rule in a criminal prosecution is not dependent upon a defendant asking the Court to invoke the rule. “[WJe may, sua sponte, in the interest of justice, notice plain error[.]” 2 State v. Hutchinson, 176 W.Va. 172, 177 , 342 S.E.2d 138, 142 (1986).

1998However, this Court’s application of the plain error rule in a criminal prosecution is not dependent upon a defendant asking the Court to invoke the rule. “[WJe may, sua sponte, in the interest of justice, notice plain error[.]” 2 State v. Hutchinson, 176 W.Va. 172, 177 , 342 S.E.2d 138, 142 (1986).

2020Va. 657, 659 , 520 S.E.2d 654, 662 (1999), this Court stated, “[i]n criminal cases, plain error is error which is so conspicuous that the trial judge and prosecutor were derelict in countenancing it, even absent the defendant’s timely assistance in detecting it.” 8 With the foregoing in mind, we proceed to apply the plain error doctrine to this issue.

2019Va. at 662 , 520 S.E.2d at 659 . 5 This Court has also considered whether, under the plain error doctrine, a lower court judgment in a civil case should be reversed.

2023Va. 294, 315-17 , 470 S.E.2d 613, 634-36 (1996) (discussing the “raise or waive” rule and the discretionary and limited application of the plain error doctrine); State v. Lively, 226 W.

2021Moreover, this Court has observed that “where there is a serious criminal conviction . . . it behooves the Court to conduct a plain error analysis on appeal, rather than dragging the proceedings out over many ensuing years.” State v. Lively, 226 W.

1995See Syl. pt. 6, in part, State v. Mayo, 191 W.Va. 79 , 443 S.E.2d 236 (1994), quoting Syl. pt. 4, State v. England, 180 W.Va. 342 , 376 S.E.2d 548 (1988) (the plain error “ ‘doctrine is to be used sparingly and only in those circumstances where substantial rights are affected, or the truth-finding process is substantially impaired, or a miscarriage of justice would otherwise result’”); Syl. pt. 5, State v. Wilson, 190 W.Va. 583 , 439 S.E.2d 448 (1993) (same).

1995See Syl. pt. 6, in part, State v. Mayo, 191 W.Va. 79 , 443 S.E.2d 236 (1994), quoting Syl. pt. 4, State v. England, 180 W.Va. 342 , 376 S.E.2d 548 (1988) (the plain error “ ‘doctrine is to be used sparingly and only in those circumstances where substantial rights are affected, or the truth-finding process is substantially impaired, or a miscarriage of justice would otherwise result’”); Syl. pt. 5, State v. Wilson, 190 W.Va. 583 , 439 S.E.2d 448 (1993) (same).

2004This Court has also noted, in State v. Knuckles, 196 W.Va. 416, 421 , 473 S.E.2d 131, 136 (1996) (per curiam), that “waiver necessarily precludes salvage by plain error review.” In rare instances however, this Court has used the plain error doctrine to review an error that was invited.

2004This Court has also noted, in State v. Knuckles, 196 W.Va. 416, 421 , 473 S.E.2d 131, 136 (1996) (per curiam), that “waiver necessarily precludes salvage by plain error review.” In rare instances however, this Court has used the plain error doctrine to review an error that was invited.

2025Va. at 659, 906 S.E.2d at 312.1 To show that this plain error affected his substantial rights, Mr. Lewis must “demonstrate the jury verdict in his . . . case was actually affected by the assigned but unobjected to error.” Syl. pt. 3, in part, State v. Marple, 197 W.

2023Va. 496 , 503 n.10, 490 S.E.2d 315 , 322 n.10 (1997) (resolving case on the substantial rights prong of the plain error doctrine); State v. Marple, 197 W.

2022Having recognized that it was appropriate to notice the lower court’s plain error, we went on to explain that [w]here it appears from the record that the process established by the Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes for the disposition of cases involving children adjudicated to be abused or neglected has been substantially disregarded or frustrated, the . . . case [will be] remanded for compliance with that process[.] Id. (quoting Syl.

2022Having recognized that it was appropriate to notice the lower court’s plain error, we went on to explain that [w]here it appears from the record that the process established by the Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes for the disposition of cases involving children adjudicated to be abused or neglected has been substantially disregarded or frustrated, the . . . case [will be] remanded for compliance with that process[.] Id. (quoting Syl.

2022Va. 170, 180 , 744 S.E.2d 280, 290 (2013) (“[T]his Court takes notice of the plain error permeating the disposition wherein the circuit court terminated the parental rights on the basis of allegations and issues which were never properly made subject of the adjudication.”).

2022Va. 170, 180 , 744 S.E.2d 280, 290 (2013) (“[T]his Court takes notice of the plain error permeating the disposition wherein the circuit court terminated 2 According to the dispositional hearing transcript, the court noted several missing orders in the case’s file and specifically noted that there was no adjudicatory order entered. 3 The father voluntarily relinquished his parental rights.

2022Va. 898 , 909 n.16, 806 S.E.2d 822 , 833 n.16 (2017) (“We also decline to invoke the plain error doctrine . . . as we have previously held that ‘the plain error rule should be exercised only to avoid a miscarriage of justice.’” (quoting Syl.

2019Va. 898 , 908 n.16, 806 S.E.2d 822 , 832 n.16 (2017) (“We also decline to invoke the plain error doctrine regarding this alleged error[.]”); State v. Fleming, 237 W.

2017For instance, his brief provides “the [defendant] should not be forced into Harmless or Plain Error analysis . . . for his counsel’s failure to make a simple and necessary objection.” Further, the brief provides that Defendant Peterson “had to object and fight for himself for the majority of the trial as clearly trial counsel did not know the case.” While not specifically raised in this appeal, our cases have made clear that a “claim of ineffective assistance of counsel is generally not ripe for direct appellate review.” State v. Hutchinson, 215 W.Va. 313 , 323 599 S.E.2d 736, 746 (2004).

2017For instance, his brief provides “the [defendant] should not be forced into Harmless or Plain Error analysis . . . for his counsel’s failure to make a simple and necessary objection.” Further, the brief provides that Defendant Peterson “had to object and fight for himself for the majority of the trial as clearly trial counsel did not know the case.” While not specifically raised in this appeal, our cases have made clear that a “claim of ineffective assistance of counsel is generally not ripe for direct appellate review.” State v. Hutchinson, 215 W.Va. 313 , 323 599 S.E.2d 736, 746 (2004).

2025Va. 583 , 439 S.E.2d 448 (1993) (“‘“The plain error doctrine contained in Rule 30 and Rule 52(b) of the West Virginia Rules of Criminal Procedure is identical.

1995See Syl. pt. 6, in part, State v. Mayo, 191 W.Va. 79 , 443 S.E.2d 236 (1994), quoting Syl. pt. 4, State v. England, 180 W.Va. 342 , 376 S.E.2d 548 (1988) (the plain error “ ‘doctrine is to be used sparingly and only in those circumstances where substantial rights are affected, or the truth-finding process is substantially impaired, or a miscarriage of justice would otherwise result’”); Syl. pt. 5, State v. Wilson, 190 W.Va. 583 , 439 S.E.2d 448 (1993) (same).

2023Va. 388 , 456 S.E.2d 469 (1995) (“A judgment of conviction will not be set aside because of improper remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused or result in manifest injustice.”). “[T]he doctrine of plain error with regard to objectionable closing remarks is sparingly applied” because “[t]here is obviously a considerable tactical advantage to be gained if counsel can remain silent and then press the point on appeal through the plain error doctrine.” State v. Grubbs, 178 W.

2013In Syllabus Point 5 of State v. Sugg, 193 W.Va. 388 , 456 S.E.2d 469 (1995), we held that “[a] judgment of conviction will not be set aside because of improper remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused or result in manifest injustice.” We find no clear error because petitioner was not unduly prejudiced by the State’s comments and because no manifest injustice resulted as a result of the comments.