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State v. Foster

Supreme Court of West Virginia

March 15, 2019

State of West Virginia, Plaintiff Below, Respondent
v.
Codey Dale Foster, Defendant Below, Petitioner

          Upshur County 16-F-76

          MEMORANDUM DECISION

         Petitioner Codey Dale Foster, by counsel G. Phillip Davis, appeals the Circuit Court of Upshur County's March 14, 2018, sentencing order following his convictions for daytime burglary, strangulation, and first-degree robbery. Respondent State of West Virginia, by counsel Scott E. Johnson, filed a response. On appeal, petitioner argues that the circuit court erred by ordering a harsher sentence for him than for his codefendant and in considering an improper factor at sentencing.

         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.

         On September 13, 2016, the Upshur County Grand Jury returned a seven-count indictment against petitioner charging him with one count each of daytime burglary, first-degree robbery, petit larceny, assault of an elderly person during the commission of a felony, malicious assault of an elderly person, strangulation, and attempted murder. On this same date, and arising from the same offense, the grand jury returned a five-count indictment against Seth Logan Foster ("Mr. Foster") charging him with one count each of daytime burglary, first-degree robbery, petit larceny, assault of an elderly person during the commission of a felony, and malicious assault of an elderly person.

         These indictments were returned following Simeon Layfield's report of a home invasion, wherein two men wearing masks had "jumped him" in his home when he came from his bedroom toward his kitchen to see why his dog was growling. Mr. Layfield was observed to have "significant injuries to his face[, ]" and he informed officers that one suspect "should have an injury to his left eye where [Mr. Layfield] stuck his right finger in it."

         Petitioner and Mr. Foster were detained shortly after the home invasion close to Mr. Layfield's home. Mr. Foster was patted down, and money was found in his left front pocket. The investigating officer then advised Mr. Foster of his Miranda[1] rights and asked about the money and what had transpired at Mr. Layfield's. Mr. Foster admitted to taking the money from Mr. Layfield after entering his home. Mr. Foster explained that petitioner grabbed Mr. Layfield and struck him. As this occurred, Mr. Foster grabbed Mr. Layfield's wallet, which was on a dresser, and removed the money from it.

         Petitioner was also advised of his Miranda rights and, although he "told several different stories," he admitted being present and that Mr. Layfield "had stuck his finger in his [l]eft eye." Petitioner also stated that during his tussle with Mr. Layfield, Mr. Layfield attempted to get petitioner in a "[r]ear naked choke," but was unsuccessful. Petitioner reported, however, that he was successful in getting Mr. Layfield into a chokehold.

         Both petitioner and Mr. Foster entered into plea agreements with the State. Petitioner agreed to plead guilty to daytime burglary, first-degree robbery, and strangulation, in exchange for dismissal of the remaining charges. Mr. Foster agreed to plead guilty to fraudulent use of an access device, daytime burglary, and assault during the commission of a felony, a lesser-included offense of the charged assault of an elderly person during the commission of a felony.[2]

         Presentence investigation reports ("PSI") were completed for both petitioner and Mr. Foster to aid the circuit court in sentencing. In Mr. Foster's report, Mr. Layfield provided that he still has "a lot of problems with [his] health" and "some permanent issues[, ]" but that those issues "ha[ve] come from [petitioner's] actions." Mr. Layfield reported that he "could tell in [Mr. Foster's] heart he didn't want to participate in the violence. He wasn't kicking as hard as he could, like he was holding back almost. I think that is the most important thing." Mr. Layfield did not provide a victim impact statement for petitioner's PSI. Rather, the report states that "[t]his officer attempted to contact the [v]ictim on multiple occasions; however, no interview was conducted." In the PSI, the officer asserted that a statement would be provided at a later date.

         In March of 2017, Mr. Foster was sentenced to one to ten years of incarceration for his daytime burglary conviction, not less than two nor more than ten years for his assault during the commission of a felony conviction, and one year for his fraudulent use of an access device conviction. The circuit court ordered that Mr. Foster's sentences for daytime burglary and assault during the commission of a felony run concurrently to one another while his sentence for fraudulent use of an access device conviction run consecutively to the other two; however, the court suspended execution of Mr. Foster's sentence for fraudulent use of an access device and placed him on probation for two years.

         On July 7, 2017, petitioner was sentenced to not less than one nor more than fifteen years[3] of incarceration for his daytime burglary conviction, not less than one nor more than five years for his strangulation conviction, and a determinate forty years for his first-degree robbery conviction. The court ordered these sentences to run consecutively. On March 14, 2018, the court resentenced petitioner to allow him to pursue an appeal, and it is from this order that he appeals.

         This Court 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. Adams, 211 W.Va. 231, 565 S.E.2d 353 (2002). We have also 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." Syl. Pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982). In sum, "[i]t is not the proper prerogative of this Court to substitute its judgment for that of the trial court on sentencing matters, so long as the appellant's sentence was within the statutory limits, was not based upon any impermissible factors, and did not violate constitutional principles." State v. Georgius, 225 W.Va. 716, 722, 696 S.E.2d 18, 24 (2010).

         Petitioner first argues that the circuit court erred in imposing a harsher sentence for him than Mr. Foster. Petitioner claims that he and Mr. Foster were similarly situated because they both entered a plea agreement and accepted responsibility for their crimes. Petitioner argues that despite being similarly situated, his effective twelve- to sixty-year sentence ...


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