Mineral County 16-F-102, 17-M-21, 17-M-22, and 17-M-23
Travis W., by counsel Jeremy B. Cooper and James E. Hawkins,
Jr., appeals the Circuit Court of Mineral County's
February 22, 2018, sentencing order entered following his
convictions for unlawful restraint, domestic battery,
unlawful assault, and fraudulent use of an access device.
Respondent State of West Virginia, by counsel Elizabeth
Grant, filed a response and supplemental appendix. Petitioner
filed a reply. On appeal, petitioner asserts that the circuit
court erred at sentencing in permitting certain individuals
to testify and considering "untruthful" statements
contained within victim impact statements, erred in presiding
over the matter despite having a conflict of interest, and
committed cumulative error.
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.
23, 2016, petitioner went to his former girlfriend's (the
"victim") home where he verbally abused, choked,
and sexually assaulted her. While in the home, petitioner
forced the victim into their infant child's room where he
beat her and would not let her tend to their crying child.
Petitioner later asked the victim how much money she had.
Apparently dissatisfied with the amount stated in response,
petitioner threatened to kill her. The victim then
transferred funds for petitioner's use from an account
she shares with her parents. While petitioner was monitoring
the transfer, the victim attempted to escape with their
infant child; however, petitioner grabbed her, jerked her
around, and prevented her escape. Petitioner then forced the
victim and their child back to a bedroom, instructed the
victim not to call the police, and left the residence, taking
the victim's phone, debit card, and laptop.
petitioner left the victim's home, she sought help from
her neighbors, including Corey Shoemaker and Meredith Haines.
The police were ultimately called, and the investigating
officer reported that the victim's face and lips were
"extremely swollen," she was "obviously the
victim of possible serious head-trauma," her speech was
difficult to understand "due to her head injuries,"
and she "appeared to be confused, possibly due to a
was indicted on September 6, 2016, for one count of burglary,
one count of malicious wounding, one count of first-degree
sexual assault, one count of first-degree robbery, two counts
of kidnapping, one count of fraudulent use of an access
device, and one count of petit larceny. Petitioner's case
was initially presided over by the Honorable Lynn A. Nelson,
but petitioner successfully moved for his disqualification.
Judge Nelson acknowledged that he "attended functions
both professionally and privately" with the victim's
mother, who is a local attorney, and "watched [the
victim] grow up." Accordingly, by order dated January
19, 2017, this Court found sufficient justification "to
warrant disqualification to avoid even an appearance of
impropriety" and reassigned the case to the Honorable
James W. Courrier Jr. Petitioner also sought Judge
Courrier's disqualification; however, this Court denied
that motion on February 21, 2017.
December 20, 2017, the parties entered into a global plea
agreement that disposed of the indictment in this matter as
well as a case in magistrate court involving several
misdemeanors. Petitioner agreed to plead guilty to one count
of domestic battery, a pending misdemeanor; one count of
unlawful restraint, a lesser-included offense of kidnapping,
as charged in the indictment; one count of fraudulent use of
an access device, as charged in the indictment; and one count
of unlawful assault, a lesser-included offense of malicious
assault, as charged in the indictment. Petitioner also
consented to the filing of a recidivist information in which
he would stipulate to being previously convicted of a felony,
resulting in the doubling of the minimum term of the
indeterminate statutory penalty for unlawful assault. The
State agreed to dismiss all remaining counts of the
indictment and all remaining misdemeanors contained in the
magistrate court matter. The parties jointly requested that
petitioner be sentenced to one year of incarceration for
domestic battery, one year for unlawful restraint, not less
than two nor more than five years for unlawful assault with
recidivist treatment, and a determinate five-year term for
fraudulent use of an access device, all of which were further
requested to run concurrently. The parties acknowledged,
however, that the plea agreement was not binding upon the
circuit court. Finally, the parties "agree[d] to request
a PSI and separate sentencing hearing, and agree[d] that the
victim or a person on his or her behalf in this matter is
entitled by statute to make a victim impact statement, either
through the Probation Office, or in open court at the
sentencing hearing." The circuit court accepted
February 2, 2018, the parties appeared for sentencing. The
State informed the court that Mr. Shoemaker and Ms. Haines,
the neighbors who assisted the victim after her assault,
wished to testify. Petitioner objected to the "fact
witness" testimony on the ground that these individuals
were not "victims" as defined by the Victim
Protection Act of 1984 (the "Act"), but the court
permitted their testimony. Mr. Shoemaker testified that he
saw the victim immediately after she was attacked, described
her injuries, and stated that because the victim "was
not shown one shred of leniency that night[, ] I would hope
that justice treats [petitioner] the same way today."
Ms. Haines likewise testified to the victim's injuries on
the night of the attack, and the victim's parents also
testified at sentencing.
circuit court sentenced petitioner to one year in the
regional jail for his unlawful restraint conviction and one
year in the regional jail for his domestic battery
conviction. Petitioner was sentenced to the penitentiary for
not less than two years nor more than five years for his
unlawful assault conviction and to a determinate eight-year
term for his fraudulent use of an access device conviction.
All sentences were further ordered to run consecutively.
Petitioner's sentence was memorialized in the court's
sentencing order entered on February 22, 2018. It is from
this order that petitioner appeals.
review "sentencing orders . . . under a deferential
abuse of discretion standard, unless the order violates
statutory or constitutional commands." Syl. Pt. 2,
State v. Georgius, 225 W.Va. 716, 696 S.E.2d 18
(2010) (citation omitted)."
appeal, petitioner argues that the circuit court erred in
permitting Mr. Shoemaker and Ms. Haines to testify because
the Act permits only victims to testify at sentencing.
Moreover, petitioner claims that the "plea agreement
specifically contemplated, and the [p]etitioner specifically
bargained, that the State would call no witnesses." But
the State called fact witnesses who "cast the
[p]etitioner in a negative light" and argued for a
harsher sentence than the parties agreed to request.
enacting the Act, the legislature noted that "without
the cooperation of victims and witnesses, the criminal
justice system would cease to function, yet too often these
individuals are either ignored by the criminal justice system
or simply used as tools to identify and punish
offenders." W.Va. Code § 61-11A-1(a). Further,
"all too often the victim of a serious crime is forced
to suffer physical, psychological or financial hardship first
as a result of the criminal act and then as a result of
contact with a criminal justice system not totally responsive
to the needs of such victims." Id. Thus, one
purpose of the Act is "to enhance and protect the
necessary role of crime victims and witnesses in the criminal
justice process." Id. § 61-11A-1(b).
effectuating this purpose, the Act provides that
[p]rior to the imposition of sentence upon a defendant who
has been found guilty of a felony, . . . or has pleaded
guilty or nolo contendere to a felony, . . . the court shall
permit the victim of the crime to appear before the court to
make an oral statement for the record if the victim notifies
the court of his or her desire to make such a ...