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State v. Chester

Supreme Court of West Virginia

March 15, 2019

State of West Virginia, Plaintiff Below, Respondent
v.
Robert Anthony Chester, Defendant Below, Petitioner

          (Taylor County 16-F-52)

          MEMORANDUM DECISION

         Petitioner Robert Anthony Chester, by counsel Jeremy B. Cooper, appeals the Circuit Court of Taylor County's January 23, 2018, orders sentencing him to an effective term of 182 to 200 years of incarceration following his convictions of burglary, first-degree robbery, and conspiracy. The State of West Virginia, by counsel Caleb A. Ellis, filed a response in support of the circuit court's orders. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in (1) sentencing him to a constitutionally disproportionate sentence, (2) denying his motion for disqualification, (3) granting the State a continuance, (4) admitting evidence of his flight from law enforcement, (5) denying his post-trial motions, and (6) failing to ensure his trial was held in compliance with the "one-term rule." Petitioner also argues that the circuit court plainly erred in failing to give a Caudill[1] limiting instruction to the jury and erred cumulatively to his prejudice.

         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 circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         Factual and Procedural Background

         Petitioner and his codefendant, Michael Ketterman, planned to rob the home of two sisters, Trina Rager and Tina Wilfong, on August 21, 2016, in Taylor County, West Virginia. En route to the robbery, petitioner and Mr. Ketterman stopped at Walmart to buy supplies such as zip ties, gloves, duct tape, and batteries for petitioner's laser sight to his Glock 9 mm pistol. After leaving Walmart, the men proceeded to the victims' home and donned masks; petitioner forced their entry through a back door.

         The men entered the house and found Ms. Rager asleep on the couch. Mr. Ketterman awoke Ms. Rager and put zip ties around her hands. As soon as Mr. Ketterman spoke, Ms. Rager recognized his voice, as they had known each other for several years. Petitioner then entered the bedroom and found Ms. Wilfong asleep. He awoke Ms. Wilfong by pointing a gun in her face, stated that he was the police, and then put zip ties around her hands. Petitioner dragged Ms. Wilfong by her neck through the home while keeping his gun trained at her head and dropped her in a mudroom, causing her to break her leg in three places.

         The two men then led Ms. Rager to an outbuilding where the victims kept their safes. After reaching the building, Mr. Ketterman struck Ms. Rager, held a knife to her throat, and instructed her to open one of the safes. Ms. Rager stated that the combination was written down on a piece of paper inside the home. Petitioner put the gun in Ms. Rager's mouth and instructed her to open the safe, and she complied. While petitioner and Mr. Ketterman were distracted with the safe's contents, Ms. Rager escaped and ran to another sister's home to call for help. Mr. Ketterman and petitioner fled at that time.

         Days later, after encouragement from his son, Mr. Ketterman surrendered to the police. Petitioner, however, evaded police and eventually led officers on a high-speed car chase. He was ultimately apprehended on August 29, 2016.

         On September 12, 2016, petitioner was indicted for one count of burglary, one count of grand larceny, two counts of first-degree robbery, two counts of wanton endangerment involving a firearm, one count of persons prohibited from possessing firearms, two counts of malicious assault, and one count of conspiracy to commit a felony. Petitioner's trial was scheduled to begin in March of 2017, but was continued for unknown reasons. Later in March, petitioner's counsel changed employment and petitioner was granted new counsel. On April 30, 2017, petitioner filed a motion requesting that the circuit court continue his trial, which was scheduled for May 15, 2017, until the next term. The circuit court continued the trial, but to a date later in the same term.

         In June of 2017, the State filed a motion requesting to admit evidence regarding petitioner's flight from police and his statements made at that time. At the hearing on the motion, the circuit court heard the testimony of several law enforcement officers, including officers from the Taylor County Sheriff's Department, the Marion County Sheriff's Department, the Fairmont Police Department, the United States Marshals Service, and a parole officer. The evidence established that officers from Taylor County collaborated with officers from Marion County to locate petitioner following the robbery. Officers were able to contact petitioner through his girlfriend and inform him that officers from Taylor County wished to speak to him. Petitioner denied involvement in any crimes that had occurred in Taylor County. Petitioner's parole officer also contacted petitioner and informed him that a warrant had been issued for his arrest due to parole violations. Petitioner declined to turn himself in and was only apprehended and arrested after the high-speed car chase.

         The circuit court determined that the evidence regarding petitioner's flight and his statements were admissible. The circuit court found that, after having been informed by his parole officer of the warrant for his arrest, "[petitioner] was aware of a potential parole violation based in part on the Taylor County warrant and the [petitioner] began fleeing from law enforcement." As such, the evidence of petitioner's flight indicated a guilty conscience or knowledge, or under the circumstances, would indicate a desire to escape to avoid prosecution due to that guilty conscience or knowledge.

         On July 10, 2017, one day before petitioner's trial was scheduled to begin, the circuit court held a hearing on the State's motion to continue based upon the collapse of plea negotiations with Mr. Ketterman, who was set to testify against petitioner as part of the agreement.[2] The circuit court granted the State's motion over petitioner's general objection to the continuance as he was prepared for trial the next day. Mr. Ketterman eventually pled guilty via a plea agreement and the trial was ultimately scheduled for October 10, 2017.

         The circuit court held a pretrial hearing in September of 2017. Petitioner moved the court to reduce his bond and dismiss the case. The circuit court denied the motions. Shortly before trial was to begin, petitioner filed a motion to disqualify the circuit court judge on the basis of judicial bias, disqualifying relationships with the victims and/or their family, and the fact that the judge directly supervised the special prosecutor's wife through the Taylor County Probation Office. Immediately prior to trial, the circuit court denied the motion, finding that it was not timely filed and was not meritorious. Specifically, the circuit court stated it had no personal or professional knowledge of the victims, and further indicated that it had isolated the special prosecutor's wife from any involvement in the case.

         Petitioner's trial commenced on October 10, 2017. On October 12, 2017, petitioner was found guilty of the four remaining crimes charged: two counts of first-degree robbery, one count of burglary, and one count of conspiracy to commit a felony.[3] Because the State intended to file a recidivist information against petitioner, the circuit court deferred sentencing on petitioner's burglary conviction and only sentenced him to ninety years of incarceration for each of his robbery convictions and not less than one nor more than five years of incarceration for his conspiracy to commit a felony conviction. After the State dismissed the recidivist information, the circuit court sentenced petitioner to not less than one nor more than fifteen years of incarceration for his burglary conviction. The circuit court ordered that the sentences be served consecutively. Petitioner's sentences were memorialized in the circuit court's orders dated January 23, 2018. It is from these orders that petitioner appeals.

         Discussion

         I.

         On appeal, petitioner first assigns as error the circuit court's order sentencing him to ninety years of incarceration for each of his robbery convictions. According to petitioner, the sentences are unconstitutionally disproportionate to the crimes for which he was convicted. Moreover, petitioner argues that his sentences are extremely disparate to those of his codefendant, Mr. Ketterman, who entered a plea agreement and was sentenced to twenty years and eighty years for his respective robbery convictions.[4] We disagree.

         We have held 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.' 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). However, "[s]entences imposed under statutes providing no upper limits may be contested based upon allegations of violation of the proportionality principles contained in Article III, Section 5 of the West Virginia Constitution." State v. Tyler, 211 W.Va. 246, 250, 565 S.E.2d 368, 372 (2002) (citation omitted). Because our first-degree robbery statute contains no upper limit, the Court will undertake a proportionality analysis in this matter. See W.Va. Code § 61-2-12 ("Any person who . . . uses the threat of deadly force by the presenting of a firearm or other deadly weapon, is guilty of robbery in the first degree and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than ten years.").

         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) (quoting State v. Cooper, 172 W.Va. 266, 272, 304 S.E.2d 851, 857 (1983)). 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. Id. 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 (quoting syl. pt. 5, Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981)).

         In this case, petitioner broke into the victims' home, placed zip ties around Ms. Wilfong's hands, and dragged her through the house while training a gun at her head. Petitioner dropped Ms. Wilfong on the floor, causing her leg to break in three places. Moreover, petitioner put a gun in Ms. Rager's mouth and ordered her to open the safe. Petitioner's actions in the commission of the robbery are characterized by extreme violence. His sentences, therefore, do not shock the conscience.

         Next, proceeding to the objective test and considering the nature of the offense, we note that we have recognized that "[a]ggravated robbery . . . involves a high potentiality for violence and injury to the victim involved." Id. at 234, 565 S.E.2d at 356 (quoting State v. Ross, 184 W.Va. 579, 582, 402 S.E.2d 248, 251 (1990)). We have also identified that the sentencing scheme for first-degree robbery serves two purposes: "First, it gives recognition to the seriousness of the offense by imposing a minimum sentence below which a trial court may not go. Second, the open-ended maximum sentencing discretion allows trial courts to consider the weight of aggravating and mitigating factors in each particular case." Id. at 234-35, 565 S.E.2d at 356-57 (citation omitted).

         We have also previously compared first-degree robbery sentences throughout our state with those imposed in other jurisdictions. Recently, in State v. Gibbs, we noted that

this Court has previously recognized that other jurisdictions permit long prison sentences for first-degree robbery. See [Adams, 211 W.Va.] at 235, 565 S.E.2d at 357 (citing State v. Boag, 104 Ariz. 362, 453 P.2d 508 (1969) (imposing seventy-five to ninety-nine-year sentence); State v. Victorian, 332 So.2d 220 (La. 1976) (imposing forty-five-year sentence); State v. Hoskins, 522 So.2d 1235 (La. Ct. App. 1988) (imposing ninety-nine-year sentence); People v. Murph, 185 Mich.App. 476, 463 N.W.2d 156 (1990) (imposing two forty-six-year sentences); State v. Morris, 661 S.W.2d 84 (Mo.Ct.App. 1983) (imposing life sentence); Robinson v. State, 743 P.2d 1088 (Okla. Crim. App. 1987) (imposing 100-year sentence)).

238 W.Va. 646, 660, 797 S.E.2d 623, 637 (2017) (quoting State v. Hill, No. 16-0138, 2016 WL 6678997, at *2-3 ( W.Va. Nov. 14, 2016)(memorandum decision)).

         Furthermore, comparing the punishment with other offenses within this jurisdiction, this Court has rejected proportionality challenges in many cases involving first-degree robbery, including some sentences similar to petitioner's sentences of ninety years each. Adams, 211 W.Va. at 235, 565 S.E.2d at 357 (citing State v. Williams, 205 W.Va. 552, 519 S.E.2d 835 (1999) (upholding fifty-year sentence for attempted aggravated robbery); State v. Phillips, 199 W.Va. 507, 485 S.E.2d 676 (1997) (upholding 140-year sentence for two counts of aggravated robbery and one count of kidnapping); State v. Ross, 184 W.Va. 579, 402 S.E.2d 248 (1990) (upholding 100-year sentence for attempted aggravated robbery); State v. Spence, 182 W.Va. 472, 388 S.E.2d 498 (1989) (upholding sixty-year sentence for aggravated robbery); State v. England, 180 W.Va. 342, 376 S.E.2d 548 (1988) (upholding life sentence for aggravated robbery); State v. Brown, 177 W.Va. 633, 355 S.E.2d 614 (1987) (upholding sixty-year sentence for aggravated robbery); State v. Glover, 177 W.Va. 650, 355 S.E.2d 631 (1987) (upholding seventy-five-year sentence for aggravated robbery)); see also State v. Booth, 224 W.Va. 307, 685 S.E.2d 701 (2009) (upholding an eighty-year sentence for first-degree robbery); State ex rel. Hatcher v. McBride, 221 W.Va. 760, 656 S.E.2d 789 (2007) (upholding a 212-year sentence for one count of first-degree robbery). Thus, we find that petitioner's sentences are not disproportionate to the crimes committed.

         Finally, while petitioner argues that his two ninety-year determinate sentences are disproportionate to that of his codefendant, who pled guilty to two counts of first-degree robbery and received an effective sentence of twenty years of incarceration followed by seven years of probation[5], we have held that

[d]isparate sentences for codefendants are not per se unconstitutional. Courts consider many factors such as each codefendant's respective involvement in the criminal transaction (including who was the prime mover), prior records, rehabilitative potential (including post-arrest conduct, age[, ] and maturity), and lack of remorse. If codefendants are similarly situated, some courts will reverse on disparity of sentence alone.

Syl. Pt. 2, State v. Buck, 173 W.Va. 243, 314 S.E.2d 406 (1984). Here, we find that petitioner and his codefendant were not similarly situated because petitioner was the individual that forced his way into the home; dragged Ms. Wilfong through the house with a gun to her head and dropped her, causing her to break her leg in three places; and placed his gun in Ms. Rager's mouth. Moreover, Mr. Ketterman turned himself in to the police and cooperated while petitioner fled the authorities, and remained combative and unremorseful throughout the entirety of the proceedings. Therefore, we conclude that petitioner's effective 180-year sentence of incarceration for two counts of first-degree robbery was not unconstitutionally disparate from his codefendant's sentence.

         II.

         Petitioner next assigns as error the circuit court's failure to grant his motion for disqualification of the circuit court judge. According to petitioner, the circuit court demonstrated personal bias toward him by giving insufficient consideration to several of his motions and summarily denying the same without permitting the record to be developed. Further, petitioner argues that the circuit court was not impartial because of his relationships with the victims and the special prosecutor's wife. Finally, petitioner avers that the circuit court erred in summarily denying his motion for disqualification without allowing the record to be developed on that matter. We disagree.

         To begin, we note that petitioner's motion for disqualification fails to comply with Rule 17.01 of the West Virginia Trial Court Rules, governing disqualification. One requirement of such motions is that they contain

a verified certificate of counsel of record or unrepresented party that they have read the motion; that after reasonable inquiry, to the best of their knowledge, information, and belief, it is well grounded in fact and is warranted by either existing law or a good faith argument for the extension, modification, or reversal of existing law; that there is evidence sufficient to support disqualification; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

Id. Petitioner's certificate of counsel stated that counsel did not believe a good faith argument existed. Indeed, counsel for petitioner stated that "[c]ounsel does not personally believe that such a basis for disqualification exists pursuant to the information available to [c]ounsel" but that he believed he had an ethical obligation to pursue the motion due to petitioner's wishes. Petitioner's accusations of personal bias and the appearance of impropriety lack merit.

         While petitioner argues that the circuit court demonstrated bias toward him in denying his motions to reduce his bond amount or dismiss the indictment, [6] the record simply does not support these assertions. In reaching its decision, the circuit court found

[t]his [crime] is alleged to have been committed with the use of a weapon. It provides that [petitioner] is a convicted felon, had no right to have a weapon, and that he's alleged to have committed malicious assault against one of the victims in the matter, or ...

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