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State v. Jeffery A.

Supreme Court of West Virginia

September 5, 2017

State of West Virginia, Plaintiff Below, Respondent
v.
Jeffery A., Defendant Below, Petitioner

         Braxton County 15-F-42

          MEMORANDUM DECISION

         Petitioner Jeffery A.[1], by counsel Kevin W. Hugart, appeals the Circuit Court of Braxton County's September 14, 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 Gordon L. Mowen II, filed a response. On appeal, petitioner argues that the circuit court erred in sentencing him to an indeterminate sentence instead of imposing an alternative sentence and that his sentence is unconstitutionally disproportionate to the offense for which he was convicted.

         This 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.

         Between June of 2010 and December of 2014, petitioner engaged in multiple instances of sexual contact with R.F., an eleven-year-old child he provided care for as a babysitter. These instances of sexual contact included touching R.F.'s vagina and breasts and forcing R.F. to touch his penis, and perform oral sex upon him. Following R.F's disclosure of this abuse to a school counselor, petitioner was indicted on four counts of first-degree sexual assault, three counts of first-degree sexual abuse, and ten counts of sexual abuse by a parent, guardian, custodian, or person in a position of trust, during the October of 2015 term of court.

         In March of 2016, 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, in exchange for the dismissal of all other counts. However, the State reserved its right to argue for incarceration at the sentencing hearing and the parties agreed that sentencing would be left to the circuit court's discretion at the later sentencing hearing. The circuit court found that petitioner's plea and related waiver of his right to a trial was made knowingly, intelligently, and voluntarily. Petitioner's sentencing was deferred pending a sex offender evaluation and pre-sentence investigation report.

         In May of 2016, the circuit court held a sentencing hearing, during which petitioner argued for the imposition of probation. The circuit court found, based on his sex offender evaluation and pre-sentence investigation report, that petitioner would "be best served by correctional treatment in a correctional setting." The sex offender evaluation report indicated that petitioner admitted to the sexual contact with R.F. and blamed the victim for the abuse, stating that the victim "wanted it" and that he "caved to her advances because it [had] been a while since he felt the touch of a woman." The circuit court noted that placing petitioner on alternative sentencing would "depreciate the seriousness of the offense, " particularly given that he blamed the victim for his conduct. Ultimately, the circuit court denied petitioner's requests and imposed a term of incarceration of ten to twenty years by order dated September 14, 2016. The circuit court also imposed forty years of supervised release. It is from the sentencing order that petitioner appeals.

         We have 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.

         Petitioner first argues that the circuit court should have imposed an alternative sentence. In support of his argument, petitioner asserts that a variety of factors, including his poor health, "crime-free" lifestyle, and childhood trauma, among other issues, were not properly considered by the circuit court and that its sentencing order "unfairly disregards" this information. 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 term of incarceration between ten and twenty years.[2] Instead, petitioner argues that the discretion to impose an indeterminate sentence leads to unfair sentencing and to an effective "life sentence" for him because of his failing health.

         This Court has stated 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." Syl. Pt. 4, Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981). We have recognized that "[a]rticle III, Section 5 of the West Virginia Constitution, which contains the cruel and unusual punishment counterpart to the Eighth Amendment of the United States Constitution, has an express statement of the proportionality principle: 'Penalties shall be proportioned to the character and degree of the offence.'" Syl. Pt. 8, State v. Vance, 164 W.Va. 216, 262 S.E.2d 423 (1980). We have explained that

[p]unishment may be constitutionally impermissible, although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity, thereby violating West Virginia Constitution, Article III, Section 5 that prohibits a penalty that is not proportionate to the character and degree of an offense.

Syl. Pt. 5, State v. Cooper,172 W.Va. 266, 304 S.E.2d ...


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