Jeremy M., by counsel Jason T. Gain, appeals the Circuit
Court of Harrison County's February 17, 2016, order
sentencing him to a term of incarceration of ten to twenty
years for his conviction of one count of sexual abuse by a
parent, guardian, custodian, or person in a position of
trust. The State, by counsel David A. Stackpole,
filed a response. Petitioner filed a reply. On appeal,
petitioner argues that the circuit court erred in sentencing
him to an indeterminate sentence instead of a determinate
sentence and that the second count of the indictment was
facially deficient. Alternatively, petitioner argues that
West Virginia Code § 61-8D-5(a) is overly broad as
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,
this 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.
January of 2014 and June of 2014, petitioner was alleged to
have engaged in multiple instances of sexual contact with
both S.M., a thirteen-year-old babysitter who provided care
for children in the home, and M.M., petitioner's
ten-year-old child. Petitioner was alleged to have penetrated
S.M.'s vagina with his penis, touched S.M.'s vagina
with his finger, and attempted to touch M.M.'s vagina
with his finger. Following interviews with police concerning
these incidents, petitioner fled to the State of Colorado
before ultimately being extradited back to West
Virginia. During the May of 2015 term of court,
petitioner was indicted on eighteen counts of various sexual
crimes, including eight counts of sexual abuse by a parent,
guardian, custodian, or person in a position of trust
relating to S.M.; five counts of third-degree sexual abuse
relating to S.M.; three counts of third-degree sexual assault
relating to S.M.; one count of first-degree sexual abuse
relating to M.M.; and one count of sexual abuse by a parent,
guardian, custodian, or person in a position of trust in
relation to M.M.
October of 2015, petitioner entered into a plea agreement
whereby he agreed to plead guilty to one count of sexual
abuse by a parent, guardian, custodian, or person in a
position of trust as alleged in the second count of the
indictment, while the remaining counts would be dismissed.
Sentencing was left to the circuit court's discretion. At
the plea hearing, petitioner admitted to having a sexual
relationship with S.M., a child to whom he was in a position
of trust, while he was above the age of eighteen.
February of 2016, the circuit court held a sentencing
hearing, during which petitioner argued for the imposition of
probation. Petitioner also argued, alternatively, for a
determinate sentence. The circuit court found that
petitioner's presentence investigation report included a
significant criminal history in addition to his high risk for
recidivism. Ultimately, the circuit court denied
petitioner's requests and imposed a term of incarceration
of ten to twenty years to run consecutively to his current
term of incarceration from an unrelated conviction. The
circuit court also imposed forty years of supervised release.
It is from the sentencing order that petitioner appeals.
previously established the following standard of review:
"In reviewing the findings of fact and conclusions of
law of a circuit court . . ., we apply a three-pronged
standard of review. We review the decision . . . 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." Syllabus Point 1, State
v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).
Syl. Pt. 1, in part, State v. Georgius, 225 W.Va.
716, 696 S.E.2d 18 (2010). Upon our review, we find no error
in the proceedings below.
the Court finds no merit to petitioner's argument that
the circuit court should have imposed a determinate sentence
instead of an indeterminate one. In support of his argument,
petitioner asserts that a variety of factors, including the
award of good-time credits, application of the parole
statute, and the goals of indeterminate sentencing, among
other issues, lead to an unsustainable absurdity if West
Virginia Code § 61-8D-5(a) were interpreted to allow
circuit courts to impose indeterminate sentences.
See Syl. Pt. 2, Newhart v. Pennybacker, 120
W.Va. 774, 200 S.E. 350 (1938) ("Where a particular
construction of a statute would result in an absurdity, some
other reasonable construction, which will not produce such
absurdity, will be made.). We do not agree.
we have held that "'[s]entences imposed by the trial
court, if within statutory limits and if not based on some
[im]permissible factor, are not subject to appellate
review.' Syllabus point 4, State v. Goodnight,
169 W.Va. 366, 287 S.E.2d 504 (1982)." Syl. Pt. 2,
State v. Booth, 224 W.Va. 307, 685 S.E.2d 701
(2009). Here, petitioner does not allege that his sentence is
outside the bounds of the applicable statute or based on any
impermissible factor. Indeed, petitioner readily admits that
West Virginia Code § 61-8D-5(a) allows for imposition of
a sentence between ten and twenty years. Instead,
petitioner argues that the discretion to impose an
indeterminate sentence leads to an absurdity, in part,
because every individual sentenced under this statute would
receive the same sentence regardless of the severity of their
crimes. We do not find this argument persuasive because
petitioner admits that his sentence was imposed within the
applicable statutory guidelines and was not based on any
impermissible factor. Thus, it is not subject to appellate
the Court finds that petitioner waived his arguments that the
second count of the indictment was facially deficient or
that, alternatively, West Virginia Code § 61-8D-5(a) is
overly broad. It is well-established law in our State
that a criminal defendant has the right to appeal a criminal
conviction. See Syl., in part, State ex rel.
Bratcher v. Cooke, 155 W.Va. 850, 188 S.E.2d 769 (1972)
(holding that "[o]ne convicted of a crime is entitled to
the right to appeal that conviction and where he is denied
his right to appeal such denial constitutes a violation of
the due process clauses of the state and federal
constitutions and renders any sentence imposed by reason of
the conviction void and unenforceable."). However, the
right to appeal is limited in the context of a guilty plea.
We explained in State v. Sims, 162 W.Va. 212, 215,
248 S.E.2d 834, 837 (1978) that "[a]n appeal ordinarily
does not lie in a criminal case from a judgment of conviction
rendered upon a plea of guilty." Such appeals are
generally limited to cases in which "an issue is raised
as to the voluntariness of the guilty plea or the legality of
the sentence." Id. at 212, 248 S.E.2d at 835,
Syl. Pt. 1, in part.
we have explained that a "defendant waives significant
constitutional rights by entering into a plea agreement . . .
." State ex rel. Forbes v. Kaufman, 185 W.Va.
72, 77, 404 S.E.2d 763, 768 (1991); see also State v.
Greene, 196 W.Va. 500, 505, 473 S.E.2d 921, 926 (1996)
(stating that "[i]f any principle is well settled in
this State, it is that, in the absence of special
circumstances, a guilty plea waives all antecedent
constitutional and statutory violations save those with
jurisdictional consequences."); Tollett v.
Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235
(1973) (stating that when criminal defendant openly in court
admits he is guilty of offense charged, "he may not
thereafter raise independent claims relating to the
deprivation of constitutional rights that occurred prior to
the entry of the guilty plea."). Notably, once a
criminal defendant waives constitutional rights, "he
cannot be heard to complain thereafter." Call v.
Mckenzie, 159 W.Va. 191, 195-96, 220 S.E.2d 665, 669-70
a thorough review of the record on appeal and the arguments
of counsel, we find that petitioner waived his right to
appeal the issues raised herein. It is undisputed that
petitioner pled guilty to one count of sexual abuse by a
parent, guardian, custodian, or person in a position of trust
as alleged in the second count of the indictment. Petitioner
does not challenge the voluntariness of his guilty plea, the
legality of his sentence, or any of his counsel's advice
prior to ...