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State v. Greenfield

Supreme Court of West Virginia

March 11, 2019

State of West Virginia, Plaintiff Below, Respondent
v.
Damon Daniel Greenfield, Defendant Below, Petitioner

          Jefferson County 19-2017-F-4

          MEMORANDUM DECISION

         Petitioner Damon Daniel Greenfield, by counsel Kevin D. Mills and Shawn R. McDermott, appeals the Circuit Court of Jefferson County's March 1, 2018, sentencing order following his conviction for one count of possession of material depicting minors engaged in sexually explicit conduct. Respondent the State of West Virginia, by counsel Scott E. Johnson, submitted a response to which petitioner submitted a reply.

         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 June of 2015, the Jefferson County Sheriff's Department initiated an investigation through the Internet Crimes Against Children database, which produced a list of internet protocol addresses in Jefferson County associated with the digital transfer of child pornography. The investigation showed that by April 8, 2016, petitioner's computer was shown to have transferred the digital media files of known child pornography 700 times from a file transfer service called FrostWire. Some files were only partially downloaded to his computer; however, one of the completed downloads with a nearly twenty-seven minute video "consist[ing] of a nude white female child (approximately 5-8 years old) on a bed" while "[a]n adult female perform[ed] oral sex on the child and other acts with sexual instruments. The child then perform[ed] sexual acts on the adult female."

         A Jefferson County grand jury indicted petitioner on two counts - one count of possession of material depicting a minor engaged in sexually explicit conduct for six hundred or more images and one count of indecent exposure from an unrelated incident. Petitioner entered a guilty plea to the lesser included offense of possession of material depicting a minor engaged in sexually explicit conduct for greater than 50 images but less than 600 images. The plea agreement provided the circuit court with discretion as to sentencing. In return for the plea, the State dismissed the indecent exposure charge. During his plea hearing, petitioner admitted that he "downloaded material that contained child pornography on [his] computer."

         Petitioner requested an alternative sentence of probation based on his assertion that his criminal conduct was "simply the possession of child pornography," that petitioner was born with a predisposition to watch child pornography, that he had sought treatment and education after his arrest, that medical benefits available because of his military service would be terminated upon incarceration, and because petitioner suffers from HIV. The circuit court entered its sentencing order on March 1, 2018, sentencing petitioner to an indeterminate term of not less than two nor more than ten years in the penitentiary. Petitioner was also ordered to pay a fine in the amount of $5, 000 and be subject to ten years of extended supervision upon his release from incarceration. Further, petitioner was ordered to register as a sexual offender for life.

         "'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). "This Court has also specified 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.' Syl. Pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982)." State v. Fleming, 237 W.Va. 44, 58, 784 S.E.2d 743, 757 (2016).

         On appeal, petitioner asserts four assignments of error. First, he contends that the circuit court's imposition of the statutory sentence of two to ten years of incarceration violated the constitutional prohibition against cruel and unusual punishment. He next argues that the sentence violated the proportionality principles of the West Virginia and United States Constitutions because, due to his medical conditions, the sentence essentially amounts to a death sentence.[1] In his third allegation of error, he asserts that the circuit court abused its discretion because it failed to provide petitioner with individualized sentencing, instead sentencing him based on the category of his offense. We will address these first three alleged errors jointly.

         In support of those contentions, petitioner argues that the circuit court failed to address his "serious underlying medical needs" and sentenced him without commenting on petitioner's medical needs during his incarceration. At sentencing, and before this Court, he argued that due to his diagnosed HIV, hepatitis, and serious mental health issues, the statutory sentence equates to a death sentence. Further, he contends that his sentence violates the proportionality principle of the West Virginia Constitution because it is disproportionate to the nature of the offense and petitioner's "characteristics." Citing only out-of-state authority, petitioner also argues that where a sentencing judge is given discretion to impose an appropriate sentence but fails to exercise that discretion, the sentencing procedure is defective and must be remanded for resentencing.[2]

         With regard to proportionality, as this Court recently set forth in Fleming,

[i]n State v. Cooper, 172 W.Va. 266, 304 S.E.2d 851 (1983), this Court explained "[t]here are two tests to determine whether a sentence is so disproportionate to a crime that it violates our constitution." Id. at 272, 304 S.E.2d at 857. "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." Id. "When it cannot be said that a sentence shocks the conscience, a disproportionality challenge is guided by the objective test we spelled out in Syllabus Point 5 of Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981)[.]" Id. That test provides as follows:
In determining whether a given sentence violates the proportionality principle found in Article III, Section 5 of the West Virginia Constitution, 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. 166 W.Va. at 523-24, 276 S.E.2d at 207. "While 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." Id. at 531, 276 S.E.2d at 211.

Fleming, 237 W.Va. at 58-59, 784 S.E.2d at 757-58.

         Petitioner was originally charged with possessing 600 or more images depicting minors engaged in sexually explicit conduct, pursuant to West Virginia Code § 61-8C-3(d), which provides that an individual "shall, upon conviction, be imprisoned in a state correctional facility for not less than five nor more than fifteen years or fined not more than $25, 000, or both." He was also charged with a misdemeanor charge of indecent exposure that was dismissed as part of his plea agreement. Pursuant to that plea agreement, petitioner pled guilty to possessing "more than fifty but fewer than six hundred images" pursuant to West Virginia Code § 61-8C-3(c). That subsection sets forth the statutory penalty of imprisonment "in a state correctional facility for not less than two nor more than ten years or fined not more than $5, 000, or both." The circuit court sentenced petitioner to an ...


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