(Berkeley County 18-F-110; 17-F-299; 17-F-350)
Christopher Wade Rebish, by counsel B. Craig Manford, appeals
the Circuit Court of Berkeley County's September 11,
2018, final conviction and sentencing order, sentencing
petitioner to consecutive, as opposed to concurrent, terms of
imprisonment. Respondent State of West Virginia, by counsel
Caleb A. Ellis, filed a summary response in support of the
circuit court's order.
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 order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.
undisputed that on January 24, 2017, petitioner went,
uninvited, to the home of Joshua Silvious and Sharalyin Allen
and demanded entry into the home. When his demands were not
met, petitioner retreated to his vehicle, obtained a firearm,
and began shooting into the home, in which Mr. Silvious, Ms.
Allen, and Ms. Allen's young child were present.
Petitioner left the Silvious/Allen home at the prompting of a
neighbor who, upon hearing the commotion, left his home and
confronted petitioner - with the neighbor ultimately drawing
his own firearm, for which he held a concealed carry permit.
Records related to the investigation provide that a total of
twenty-one spent casings and bullet holes were found at the
scene and two bullets were retrieved from the walls of the
months later, on April 2, 2017, petitioner was involved in a
dispute with his former girlfriend, Samantha Mattingly.
Petitioner confronted Ms. Mattingly whom he believed was
romantically involved with another male, Joshua Wittenmyer.
Petitioner then confronted Mr. Wittenmyer and, ultimately,
chased Mr. Wittenmyer into a nearby apartment, kicked the
door open, and stabbed Mr. Wittenmyer twice in the arm. Upon
learning that someone had called the police and reported his
actions, petitioner placed his knife at Mr. Wittenmyer's
throat, took Mr. Wittenmyer's keys, and asked him for the
location of his vehicle. Petitioner stole Mr.
Wittenmyer's vehicle and fled the scene. Ultimately,
petitioner was apprehended in Mr. Wittenmyer's vehicle
outside of the Martinsburg city limits.
October of 2017, petitioner was indicted by the Berkeley
County Grand Jury in two separate legal actions, case numbers
17-F-299 and 17-F-350. In 17-F-299, arising from the April 2,
2017, incident, petitioner was charged with malicious
wounding, first-degree robbery, grand larceny, and fleeing
with reckless operation of a motor vehicle. In 17-F-350,
arising from the January 24, 2017, incident, petitioner was
charged with four counts of attempted first-degree murder,
and twenty-one counts of wanton endangerment with a firearm.
Thereafter, on May 4, 2018, an information was filed in case
number 18-F-110, in which petitioner was charged with one
count of grand larceny.
27, 2018, the parties entered into a plea agreement and filed
a letter noting their agreement in case number 17-F-350.
Pursuant to the agreement, petitioner agreed to plead guilty
or no contest to one count of malicious assault and one count
of first-degree robbery (in 17-F-299), and two counts of
attempted first-degree murder and one count of wanton
endangerment (in 17-F-350). In return, the State agreed to
dismiss the remaining charges against petitioner. The plea
agreement included a sentencing provision, pursuant to Rule
11(e)(1)(C) of the West Virginia Rules of Criminal Procedure,
making certain sentencing stipulations binding if the circuit
court accepted the agreement. Per the agreement, for his
convictions in 17-F-299, petitioner would serve the
statutorily provided indeterminate term of two to ten years
for his malicious assault conviction, and a determinate term
of thirty years for his first-degree robbery conviction. The
agreement provided that these sentences would run
concurrently. For his convictions in 17-C-350, petitioner
would serve an indeterminate term of three to fifteen years
for each of his attempted murder convictions, and a
determinate term of five years for his malicious assault
conviction. By the terms of the agreement, these sentences
would run concurrently. The agreement left, to the discretion
of the circuit court, whether the sentences in 17-F-299 and
17-F-350 would run concurrently or consecutively with one
another. Finally, the parties agreed that the overall
resulting sentence would run concurrently with
petitioner's sentence on his grand larceny conviction in
hearing was held on the proposed plea agreement on August 28,
2018. During the hearing the circuit court engaged in a
lengthy colloquy with petitioner, in which petitioner was
questioned regarding his understanding of the proceedings,
his criminal and personal history, and his prior involvement
in substance abuse treatment. Petitioner was provided a
detailed recitation of the facts the State would have been
able to prove had the matter proceeded to trial. At the
conclusion of the hearing, petitioner pled no contest to each
of the five charges outlined in the plea agreement and the
court accepted the plea.
accepting the plea agreements, the court proceeded directly
to sentencing. Both parties offered arguments on whether the
court's sentencing should be concurrent or consecutive,
with petitioner's counsel focusing on petitioner's
history of substance abuse and mental health
issues. The State argued for consecutive
sentencing, given the serious nature of each of the crimes.
The State referenced a recorded phone call petitioner made
while incarcerated, on April 3, 2017, in which he threated to
stab an individual "if he saw him again." The State
argued the petitioner's continued threats of physical
violence was illustrative of his lack of remorse.
the court ruled that petitioner's two sets of sentences
should run consecutively.The court noted the "violent and
extensive" nature of petitioner's crimes and stated
that petitioner's post-arrest call threatening continued
violence "supported the notion that petitioner presented
a risk of future violence." Further, the court was
troubled that the only period of sobriety petitioner had
experienced following his "admittedly serious substance
abuse problems" came only as a result of his
incarceration pending resolution of the charges at issue. The
court noted that petitioner's "devastating youthful
history" was "partially why the court was [even]
willing to accept this plea agreement," which the court
termed "pretty gracious." On September 11, 2018,
the circuit court entered three final conviction and
sentencing orders in each of petitioner's individual
cases formally sentencing petitioner. It is from his
sentencing orders that petitioner now 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. Lucas, 201 W.Va. 271, 496
S.E.2d 221 (1997). "'Sentences 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).
there is no dispute that the sentences imposed by the trial
court are within the statutory limits for the offenses to
which petitioner pled. See W.Va. Code §§
61-2-1 (murder), 61-11-8 (attempt), 61-2-9(a) (malicious
wounding), and 61-3-11(a) (first-degree robbery).
Accordingly, petitioner's sentence is not subject to
appellate review unless it was based on some impermissible
factor. Petitioner contends that the circuit court improperly
considered petitioner's mental illness and substance
abuse as an impermissible sentencing factor and, thus, abused
its discretion in sentencing petitioner to consecutive terms
of imprisonment, as opposed to concurrent.
disagree. This Court has long held that "[w]hen a
defendant has been convicted of two separate crimes, before
sentence is pronounced for either, the trial court may, in
its discretion provide that the sentences run concurrently,
and unless it does so provide, the sentences will run
consecutively." Syl. Pt. 3, Keith v. Leverette,
163 W.Va. 98, 254 S.E.2d 700 (1979). See also W.Va.
Code § 61-11-21. Further, this Court further recognized
that trial courts have wide discretion in the sources and
types of evidence used in determining the kind and extent of
punishment to be imposed. See State ex. rel. Dunlap v.
McBride, 225 W.Va. 192, 202, 691 S.E.2d 183, 193 (2010)
(quoting Elswick v. Holland, 623 F.Supp 498, 504
(S.D. W.Va. 1985)).
sentencing, petitioner argued that his crimes were mitigated
by his long history of substance abuse and mental illness. In
considering petitioner's sentence, the circuit court made
explicit reference to the "violent and extensive"
crimes while also referencing petitioner's
"devastating youthful history," as a mitigating
factor. Given the serious nature and extent of
petitioner's crimes, which are undisputed by the parties,
we find no abuse of the circuit court's discretion in
sentencing. Rather, we concur ...