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State v. Payne

Supreme Court of West Virginia

March 23, 2018

State of West Virginia, Plaintiff Below, Respondent
John W. Payne, Defendant Below, Petitioner

          Morgan County 05-F-70


         Petitioner John W. Payne, by counsel Ben J. Crawley-Woods, appeals the Circuit Court of Morgan County's January 30, 2017, order revoking his supervised release and sentencing him to twenty-four years of incarceration. 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's sentence is unconstitutionally disproportionate, that the circuit court disregarded his low level of intelligence as a mitigating factor, and that it erroneously interpreted the conditions of his supervised release.

         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.

         In 2006, petitioner pled no contest to third-degree sexual assault and was sentenced to an indeterminate term of one to five years of incarceration. The circuit court also imposed a thirty-year-term of supervised release following the discharge of his prison sentence, which included various terms and conditions.

         On January 31, 2011, a probation officer ("PO") filed a "Petition for Revocation of Supervised Release" alleging that petitioner violated the terms and conditions of his supervised release by operating a motor vehicle without a valid operator's license and without his PO's permission, having contact with minor children, providing false information to his PO, and possessing weapons. The circuit court held a hearing on this petition, and petitioner admitted to several of the allegations, including those relative to the motor vehicle operation, having contact with minors, and possessing weapons. Accordingly, the circuit court revoked petitioner's supervised release, sentenced him to five years of incarceration, and imposed the balance of his thirty-year supervised release term upon discharge of his prison sentence.

          A PO filed a second "Petition for Revocation of Supervised Release" on July 16, 2015. The PO alleged that petitioner failed to attend multiple counseling sessions; failed to pay money owed to a licensed polygrapher and therapist; provided false information concerning a Facebook account, internet access, and cellular telephone service; failed to provide his PO with a list of computer equipment he used; and failed to make payments toward his court costs, drug testing costs, and supervision fees. The circuit court held a hearing on this second petition. In addition to other evidence taken, petitioner admitted to being deceptive about his internet, cell phone, and Facebook use. The circuit court, therefore, revoked petitioner's supervised release, sentenced him to one year in prison, and imposed the remainder of his thirty-year supervised release term.

         On October 13, 2016, a PO filed a third "Petition for Revocation of Supervised Release." The PO alleged that petitioner failed to provide requested documentation concerning his prescription medication; established an e-mail account without approval; accessed the internet or sent e-mails without permission approximately fifty-nine times; received pornographic images via e-mail; solicited prostitution multiple times; provided false information to his PO; failed to notify his PO of a newly-acquired cellular telephone; visited sexually-explicit websites; and failed to make payments toward court costs, drug testing costs, and supervision fees. The petition also alleged that petitioner's internet access and e-mailing were directed toward coordinating sexual encounters, and in attempting to contact these individuals, petitioner failed to disclose his conviction or status as a sex offender. Furthermore, petitioner's sexual offender treatment therapist reported that petitioner had not "dropped the victim stance" and "believe[d] himself to be unjustly caught in the system[.]" As a result, petitioner's sexual offender treatment therapist stated that petitioner had not "substantially progressed" over the past several years and that petitioner was in need of a "higher level of care" than the therapist could provide.

         Following the filing of this third petition for revocation, petitioner moved for a mental examination to determine his ability to comprehend the nature of the proceedings against him. The circuit court granted this motion. The psychological evaluation revealed that, although petitioner had an IQ of 73, he was able to consult with his lawyer and understand the proceedings against him. The evaluator also noted a high degree of malingering.

         The circuit court held a hearing on the third petition for revocation. Petitioner admitted to many of the violations alleged in the third petition, including using a new cell phone without providing notice, e-mailing without permission, and using the internet without permission. The circuit court reviewed petitioner's psychological evaluation and found "no intellectual deficiency in the [petitioner] sufficient to explain the violations" and that petitioner had been deceptive during his evaluation. The circuit court further noted petitioner's prior supervised release revocations for similar behaviors and the fact that petitioner's "continued denial of being a sex offender puts society at risk that he might repeat the behavior." Accordingly, the circuit court revoked petitioner's supervised release and sentenced him to twenty-four years of incarceration, which represented the balance of his supervised release term. These rulings were memorialized in an order entered on January 30, 2017. It is from this order that petitioner appeals.

         "'The 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).

         Petitioner first argues on appeal that his sentence is unconstitutionally disproportionate.[1]Petitioner contends that his twenty-four-year sentence shocks the conscience because his underlying offense, third-degree sexual assault, is punishable by only one to five years of imprisonment. Petitioner argues that none of his supervised release violations amounts to a crime, except for soliciting prostitution; however, even if convicted of such, he would only have been sentenced to sixty days to six months in the county jail and fined. Petitioner further acknowledges the terms of supervised release prohibited him from possessing obscene material and that the conversations directed toward sexual companionship "approach[ed] the level of obscene matter[, ]" but he highlights that he made no attempt to contact any minors since his first revocation petition. Petitioner also argues that although the statutory penalties for crimes analogous to his technical supervised release violations amount to a maximum of five years of incarceration, the circuit court sentenced him to nearly five times that amount. In short, petitioner argues that his sentence is both subjectively and objectively disproportionate because the statutory penalty for similar conduct would amount to a fraction of petitioner's sentence for non-criminal supervised release violations.

         "A criminal sentence may be so long as to violate the proportionality principle implicit in the cruel and unusual punishment clause of the Eighth Amendment to the United States Constitution." Vance, 164 W.Va. at 217, 262 S.E.2d at 425, Syl. Pt. 7. There are two tests for determining whether a sentence is so disproportionate to the crime that it violates Article III, Section 5 of the West Virginia Constitution. "The first is subjective and asks whether the sentence for the particular crime shocks the conscience of the court and society. If a sentence is so offensive that it cannot pass a societal and judicial sense of justice, the inquiry need not proceed further." State v. Adams, 211 W.Va. 231, 233, 565 S.E.2d 353, 355 (2002) (citation omitted). To determine whether a sentence shocks the conscience, this Court considers all of the circumstances surrounding the offense. Id. If a sentence is found not to shock the conscience, this Court proceeds to the objective test. Under the objective test, to determine whether a sentence violates the proportionality principle, "consideration is given to 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 with other offenses within the same jurisdiction." Id. at 232, 565 S.E.2d at 354, Syl. Pt. 2, in part.

         West Virginia Code § 62-12-26(a), governing supervised release for certain sex offenders, provides that

[n]otwithstanding any other provision of this code to the contrary, any defendant convicted after the effective date of this section of a violation of section twelve, article eight, chapter sixty-one of this code or a felony violation of the provisions of article eight-b, eight-c or eight-d of said chapter shall, as part of the sentence imposed at final disposition, be required to serve, in addition to any ...

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