(Taylor County 16-F-52)
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 limiting instruction to the jury and erred
cumulatively to his prejudice.
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.
and Procedural Background
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.
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
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.
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.
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.
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.
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.
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. 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
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
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. 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.
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. We disagree.
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.").
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)).
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.
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
also previously compared first-degree robbery sentences
throughout our state with those imposed in other
jurisdictions. Recently, in State v. Gibbs, we noted
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)).
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.
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, 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.
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.
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.
petitioner argues that the circuit court demonstrated bias
toward him in denying his motions to reduce his bond amount
or dismiss the indictment,  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 ...