Anthony Slater, by counsel Kevin B. Postalwait, appeals the
Circuit Court of Jackson County's November 2, 2016, order
sentencing him to confinement in the penitentiary for not
less than one nor more than three years. The State of West
Virginia, by counsel Benjamin F. Yancey III, filed a response
in support of the circuit court's order. On appeal,
petitioner argues that the circuit court erred in denying his
request for alternative sentencing or for incarceration in
the regional jail and that his sentence is disproportionate
to his crime.
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 order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.
February 23, 2016, petitioner was indicted on one count of
delivery of a controlled substance. He entered into a plea
agreement with the State whereby he agreed to plead guilty to
attempt to commit a felony, a lesser-included offense. In
exchange, the State agreed to dismiss charges contained in a
bound-over case, not file a recidivist information, and stand
silent at sentencing. The plea agreement also informed
petitioner that the maximum penalty that could be imposed was
imprisonment in the penitentiary for not less than one nor
more than three years or confinement in jail for not less
than six months nor more than twelve months and a fine of up
sentencing, petitioner requested home incarceration or, to
the extent the circuit court felt that incarceration was
proper, confinement in the regional jail. Finding that
petitioner "benefited greatly from the plea
agreement" due to the fact that he faced a shorter
imprisonment time by pleading to a lesser-included offense
and due to the State's agreement to waive filing a
recidivist information, petitioner was sentenced to
confinement in the penitentiary for not less than one nor
more than three years. In imposing this sentence, the circuit
court also noted that, due to petitioner's "rather
continuous" contact with law enforcement since 2005, the
court had concerns about petitioner's ability to abide by
the terms of any release on community corrections. The
circuit court's order memorializing this sentence was
entered on November 2, 2016, and it is from this order that
Supreme Court of Appeals reviews sentencing orders . . .
under a deferential abuse of discretion standard, unless the
order violates statutory or constitutional commands.'
Syl. Pt. 1, in part, State v. Lucas, 201 W.Va. 271,
496 S.E.2d 221 (1997)." Syl. Pt. 1, State v.
James, 227 W.Va. 407, 710 S.E.2d 98 (2011). Moreover,
"'[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).
appeal, petitioner first contends that the circuit court
abused its discretion in not granting his request for
alternative sentencing or in sentencing him to incarceration
in the regional jail. Petitioner submits that, in sentencing
him to incarceration in the state penitentiary, the circuit
court erroneously found that he "benefited greatly"
from the plea agreement because the dismissed charge was one
that the State acknowledged was based upon an improper
undisputed that petitioner's sentence was within
statutory limits. Thus, to be subject to appellate review,
petitioner must identify some impermissible factor upon which
the circuit court based the sentence. To the extent
petitioner is arguing that the circuit court's comment
that he "benefited greatly" from a plea agreement
that dismissed a charge that the State may have faced
difficulty proving amounts to an impermissible factor, he
cites no law in support of such a conclusion. Not only that,
but petitioner ignores the other bases the circuit court
identified in stating that petitioner "benefited
greatly" from the plea agreement. Namely, petitioner
pled to a lesser-included offense that subjected him to a
lighter sentencing than the crime on which he was indicted,
and the State waived its right to file a recidivist
information. Moreover, petitioner was not entitled to
alternative sentencing. "Probation is a matter of grace
and not a matter of right." Syllabus Point 1, State
v. Rose, 156 W.Va. 342, 192 S.E.2d 884 (1972). Thus, we
find that the circuit court did not abuse its discretion in
denying alternative sentencing or denying incarceration in
the regional jail.
also claims that his sentence is disproportionate to his
crime "given the nature of the offense, the legislative
purpose behind the punishment, a comparison of the punishment
with what would be inflicted in other jurisdictions, and a
comparison within the same jurisdiction." Petitioner,
however, provides no analysis in support of this contention.
As such, and because "our constitutional proportionality
standards . . . are basically applicable to those sentences
where there is either no fixed maximum set by statute or
where there is a life recidivist sentence[, ]" we
decline to address this assignment of error. Syl. Pt. 4, in
part, Wanstreet v. Bordenkircher, 166 W.Va. 523, 276
S.E.2d 205 (1981).
foregoing reasons, the circuit court's November 2, 2016,
order sentencing petitioner, is hereby affirmed.
CONCURRED IN BY: Chief Justice Allen H. Loughry II Justice
Robin Jean Davis Justice Margaret L. Workman Justice Menis E.
Ketchum Justice Elizabeth D. Walker