Adam Pauley, by counsel G. Bradley Frum, appeals the Circuit
Court of Wood County's March 31, 2017, order sentencing
him to one to ten years of incarceration following his
conviction of breaking and entering. The State of West
Virginia, by counsel Shannon Frederick Kiser, filed a summary
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 after his
unsuccessful discharge from the Anthony Correctional
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.
August of 2016, petitioner entered into a plea agreement
whereby he waived his right to indictment and pled guilty to
breaking and entering in violation of West Virginia Code
§ 61-3-12. Petitioner acknowledged that his guilty plea
subjected him to confinement in a state correctional facility
for not less than one nor more than ten years. In exchange for
petitioner's plea, the State agreed to recommend that
petitioner be placed in the Anthony Center and to not pursue
any further charges related to the underlying offense. The
circuit court deferred acceptance of petitioner's plea
until the receipt of a presentence investigation report.
circuit court accepted petitioner's plea in November of
2016 and sentenced him to the Anthony Center Youthful
Offender Program for a period of not less than six months nor
more than two years. The Anthony Correctional Center warden
deemed petitioner unfit to remain in the Anthony Center
program in March of 2017 after he was cited for fighting and
insubordination. Thereafter, petitioner returned to the
jurisdiction of the circuit court.
circuit court held a sentencing hearing in March of 2017.
Petitioner moved for alternative sentencing, but the circuit
court denied that motion. By its March 31, 2017 order, the
circuit court sentenced petitioner to not less than one nor
more than ten years of confinement with credit for 309 days
served. Petitioner appeals that order.
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 contends that the circuit court abused its
discretion in not granting his request for alternative
sentencing. Petitioner argues that alternative sentencing
would have allowed him to participate in substance abuse
treatment. The Court, however, finds no abuse of discretion
in the imposition of the sentence below.
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. Petitioner did not
identify any such impermissible factors. Instead, petitioner
argues that home incarceration would have allowed him to
participate in substance abuse treatment. However, petitioner
was not entitled to alternative sentencing. "Probation
is a matter of grace and not a matter of right." Syl.
Pt. 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.
foregoing reasons, the circuit court's March 31, 2017,
order sentencing petitioner, is hereby affirmed.
Concurred Chief Justice Margaret L. Workman Justice Robin
Jean Davis Justice Menis E. Ketchum Justice Allen H. Loughry
II Justice Elizabeth D. Walker