Jeffery A., 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.
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.
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.
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.
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.
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.
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. 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.
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