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State v. Zsigray

Supreme Court of West Virginia

January 8, 2018

State of West Virginia, Plaintiff Below, Respondent
v.
John Robert Zsigray, Defendant Below, Petitioner

         Lewis County 15-M-AP-3

          MEMORANDUM DECISION

         Petitioner John Robert Zsigray, by counsel William B. Summers, appeals the Circuit Court of Lewis County's December 14, 2016, order affirming his magistrate court conviction and sentence. The State of West Virginia, by counsel Shannon Frederick Kiser, filed a response in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in affirming his conviction and sentence because the sentence rendered was unconstitutionally excessive, the evidence was insufficient to convict, the prosecutor engaged in prosecutorial misconduct, and the jury instructions improperly instructed the jury that certain instructions were "defense instructions" and others were the "State's instructions."

         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, 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.

         On December 9, 2014, petitioner was registered traveling thirty-five miles per hour in a fifteen-mile-per-hour school zone by Deputy John Tonkin of the West Virginia State Police. Deputy Tonkin issued petitioner a traffic citation, which petitioner challenged in magistrate court. Following a jury trial held on October 28, 2015, petitioner was found guilty of speeding in a school zone with children present in violation of West Virginia Code § 17C-6-1(b)(1). The magistrate court sentenced petitioner to fourteen days in jail and a $250 fine. The magistrate court permitted petitioner to serve his jail sentence on home incarceration with work release; however, the sentence was stayed pending petitioner's appeal to circuit court.

         Petitioner appealed the verdict and sentence to the circuit court, which the circuit court heard on December 7, 2016. Petitioner argued that the sentence he received was unconstitutionally excessive, the jury's verdict was against the weight of the evidence, the prosecutor engaged in prosecutorial misconduct, and the magistrate court improperly instructed the jury that certain instructions were "defense instructions" and others were the "State's instructions." Finding no error, the circuit court affirmed petitioner's conviction and sentence by order entered on December 14, 2016. It is from this order that petitioner appeals.

         We have previously articulated the following standard of review:

In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).

         On appeal, petitioner first argues that his sentence was unconstitutionally excessive. Petitioner acknowledges that his sentence was within statutory limits, but claims that the sentence was excessive because the magistrate court "did not enumerate any specific reasons" for sentencing him to two weeks of home incarceration and because there was no evidence of petitioner's criminal history or any other aggravating circumstances elicited to justify the sentence. Petitioner surmises that the magistrate court "assessed additional penalties on [petitioner] for taking the case to trial."

         It is undisputed that petitioner's sentence was within statutory limits.[1] Thus, to be subject to appellate review, petitioner must identify some impermissible factor upon which the magistrate court based the sentence. Syl. Pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982) ("Sentences imposed by the trial court, if within statutory limits and if not based on some [im]permissible factor, are not subject to appellate review.") To the extent petitioner is arguing that his belief that the magistrate court assessed a jail sentence for taking his case to trial amounts to an impermissible factor, petitioner has failed to cite any support in the record for his speculation. Rule 10(c) of the West Virginia Rules of Appellate Procedure requires that a petitioner's brief

contain an argument exhibiting clearly the points of fact and law presented, the standard of review applicable, and citing the authorities relied on, under headings that correspond with the assignments of error. The argument must contain appropriate and specific citations to the record on appeal, including citations that pinpoint when and how the issues in the assignments of error were presented to the lower tribunal. The Court may disregard errors that are not adequately supported by specific references to the record on appeal.

         Also, "[t]he general rule is that there is a presumption of regularity of court proceedings; it remains until the contrary appears and the burden is on the person who alleges such irregularity to affirmatively show it." Syl. Pt. 3, State ex rel. Godfrey v. Rowe, 221 W.Va. 218, 654 S.E.2d 104 (2007) (citation omitted).

An appellant must carry the burden of showing error in the judgment of which he complains. This Court will not reverse the judgment of a trial court unless error affirmatively appears from the record. Error will not be presumed, all presumptions being in favor of the correctness of the judgment.

Id. at 219, 654 S.E.2d at 105, Syl. Pt. 4 (citation omitted). Petitioner has failed to support this argument with citations to the record to substantiate his belief that he was assessed a jail sentence because he took his case to trial. Because this argument is not adequately supported, and because petitioner's subjective belief that an error was made in imposing his sentence is insufficient ...


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