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
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.
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.
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."
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 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.
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.
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
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.
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.
7, 2017, petitioner was sentenced to not less than one nor
more than fifteen years 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.
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).
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 ...