Joseph Edward Corbin, III, by counsel William T. Rice,
appeals the Circuit Court of Hampshire County's March 22,
2016, order sentencing him to two consecutive prison terms of
one to fifteen years following his guilty plea to two counts
of delivery of a controlled substance (heroin). The State of
West Virginia, by counsel Gordon L. Mowen, II, filed a
response in support of the circuit court's order. On
appeal, petitioner argues that the circuit court imposed an
illegal sentence when it ordered his prison terms to run
consecutively to one another.
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.
September of 2015, petitioner was indicted on three counts of
delivery of a controlled substance, pursuant to West Virginia
Code § 60A-4-401(a). Thereafter, petitioner entered an
agreement with the State whereby he agreed to plead guilty to
two counts of delivery of a controlled substance, and the
State agreed to dismiss the remaining count of the indictment
and not pursue a separate criminal charge of illegally
defeating a drug screen. The plea agreement specifically
provided that "[t]he State will be recommending
consecutive sentences of not less than one (1) nor more than
fifteen (15) years in the State Penitentiary. . . . However,
sentencing will be left in the discretion of the Court."
January of 2016, the circuit court held a plea hearing. At
that hearing, the circuit court engaged in a plea colloquy
with petitioner. During that colloquy, petitioner
affirmatively stated that he understood that sentencing was
left to the discretion of the circuit court. Further, the
State reported for the record that it would recommend
consecutive sentences of one to fifteen years in prison,
under the terms of the plea agreement. At the conclusion of
the colloquy and factual basis for the plea, petitioner
entered his guilty plea orally and in writing.
February of 2016, the circuit court held a sentencing
hearing. Petitioner moved for probation with a condition that
he complete substance abuse treatment. The State noted that
petitioner had "a substantial criminal history, albeit .
. . none of them are felony convictions."
State also noted that petitioner failed a drug screen while
incarcerated, and it was unclear how he obtained drugs while
incarcerated. Pursuant to the plea agreement, the State
recommended consecutive prison terms of one to fifteen years
with one prison term suspended with five years of supervised
release. In rebuttal, petitioner argued that concurrent
prison terms would be more appropriate than consecutive terms
under the facts of this case. At the conclusion of the
hearing, the circuit court ordered petitioner to serve two
consecutive prison terms of one to fifteen years. However,
the circuit court suspended the second prison term and
ordered that petitioner instead serve five years of
supervised release. This appeal followed.
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. 3,
State v. Georgius, 225 W.Va. 716, 696 S.E.2d 18
(2010). In this case, petitioner was convicted of two counts
of delivery of a controlled substance. West Virginia Code
§ 60A-4-401(a)(i) states that if
[a]ny person who violates this subsection with respect to [a]
controlled substance classified in Schedule I or II, which is
a narcotic drug, is guilty of a felony and, upon conviction,
may be imprisoned in the state correctional facility for not
less than one year nor more than fifteen years, or fined not
more than twenty-five thousand dollars, or both.
Moreover, "[w]hen a defendant has been convicted of two
separate crimes, before sentence is pronounced for either,
the trial court may, in its discretion, provide that the
sentences run concurrently, and unless it does so provide,
the sentences will run consecutively." Syl. Pt. 3,
Keith v. Leverette, 163 W.Va. 98, 254 S.E.2d 700
clear from the record on appeal that petitioner's
consecutive prison terms of one to fifteen years for two
counts of delivery of a controlled substance are within
statutory limits. The circuit court was within its discretion
to run those sentences consecutively. Further, petitioner
does not argue that his sentence is based on any
impermissible factor. Instead, petitioner claims that his
sentence is excessive and disproportionate to his crimes.
Petitioner's argument ignores our holding on the
applicability of constitutional proportionality standards:
"While 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." Syl. Pt. 4, Wanstreet v.
Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981). The
crimes for which petitioner was sentenced have a fixed
statutory maximum set by statute and there was no life
recidivism imposed in this case.
we find that petitioner's sentence was within the maximum
statutory limit and not based on any impermissible factor.
Consequently, we find that petitioner's sentence is not
reviewable on appeal.
foregoing reasons, the circuit court's March 22, 2016,