Clifton Marcus Dent, by counsel Richard W. Hollandsworth,
appeals the August 30, 2018, order of the Circuit Court of
Ohio County that sentenced petitioner to ninety years in
prison for his Kennedy plea to one count of robbery in
the first-degree. The State of West Virginia, by counsel
Scott E. Johnson, filed a response in support of the circuit
court's order. On appeal, petitioner argues that the
circuit court abused its discretion and violated Article III,
Section 5 of the West Virginia Constitution in sentencing
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.
about 4:30 p.m. on May 12, 2017, police officers arrived at
the scene of a carjacking in Wheeling. The officers spoke
with the victim, seventy-two-year-old Diane Higgs, who was
bleeding from her nose and face and had severe swelling
around both eyes. Ms. Higgs reported that, as she parked in
front of her apartment building, she saw a black man with
short hair walking towards her gold 2008 Honda CRV (the
"Honda"). The man opened the Honda's door and
demanded Ms. Higgs's car keys. When Ms. Higgs did not
immediately comply, the man repeatedly struck her in the face
and head, pulled her out of the Honda, and threw her onto the
ground. The man then drove off in the Honda going the wrong
direction on a one-way street. The police arrived at the
scene soon thereafter. They questioned Ms. Higgs and found
she needed immediate medical attention. Ms. Higgs was then
transported to the hospital by ambulance.
Klosterman, who lived in the same apartment complex as Ms.
Higgs, reported that she heard screams and a car alarm and
observed Ms. Higgs's Honda backing out of a parking spot.
Becky Meadows, who also lived in the same apartment complex,
observed a black man getting into Ms. Higgs's Honda while
Ms. Higgs was on the ground screaming. Soon thereafter, Karen
Clyne reported seeing a gold Honda driving the wrong way on
Pike Street. The driver of the Honda yelled at Ms. Clyne to
"get out of the way." Ms. Clyne described the
driver as a black male with curly hair who appeared to be
thirty to forty years old. At 5:39 p.m., Luke Reed called the
Wheeling Police and informed them that a gold Honda was
traveling eastbound on I-70 between Claysville and West
Alexander, Pennsylvania. Diane Schau also reported a gold car
in the eastbound lane of I-70. The Pennsylvania State Police
located Ms. Higgs's Honda broken down on the eastbound
berm of I-70. They found petitioner nearby on foot and noted
he matched the descriptions given by the various witnesses.
was indicted in Ohio County on one count of first-degree
robbery and two counts of malicious assault.
Cooper-Lehki, DO, prepared petitioner's "Forensic
Psychiatry Report: Competency to Stand Trial/Criminal
Responsibility." Dr. Cooper-Lehki found that, despite
petitioner's diagnosis of Schizoaffective Disorder,
Bipolar Type, and Polysubstance Dependence, he did not lack
substantial capacity to appreciate the wrongfulness of his
conduct or to conform his conduct to the requirements of the
law. Dr. Cooper-Lehki also found that petitioner had "a
sufficient rational and factual understanding of the
proceedings against him and ha[d] adequate ability to assist
his attorney in his own defense."
petitioner entered a Kennedy plea in which he agreed
to plead guilty to one count of first-degree robbery pursuant
to West Virginia Code § 61-2-12(a) and one count of
unlawful assault pursuant to West Virginia Code §
61-2-10b(c). In his plea agreement, petitioner acknowledged
that the penalty for first-degree robbery was not less than
ten years in prison, and that the sentence for unlawful
assault was one to five years in prison.
April 6, 2018, hearing, the circuit court accepted
petitioner's Kennedy plea and sentenced him to
one to five years in prison for his plea to unlawful assault.
However, the circuit court delayed sentencing on
petitioner's first-degree robbery plea so that
petitioner's probation officer could prepare a
presentence investigation report.
his guilty plea, petitioner participated in a court-ordered
psychological evaluation "to provide the court with
professional opinions for the purpose of sentencing."
Dr. Robert Rush presented a detailed report to the court.
Additionally, petitioner's probation officer prepared a
presentence investigation report in which she recommended
petitioner receive an eighty-year sentence given his
substantial risk of reoffending. The probation officer noted
in her report that she worked with petitioner for thirteen
years during which he was arrested numerous times, had twelve
misdemeanor and two felony convictions, and took his
mother's car several times despite not having a valid
driver's license. The probation officer also noted that
petitioner is not compliant in taking his psychiatric
medication and continues to use illegal drugs, which causes
him to act out. The probation officer opined that
petitioner's destructive behaviors are escalating, and
that he is in need of correctional treatment. The probation
officer asserted that when petitioner is incarcerated, prison
staff manage his medications, which is imperative for his
well-being; and he is away from the illegal substances that
make him volatile. The probation officer further found that
petitioner (1) has serious mental and emotional issues, and
drug and alcohol addiction; (2) has been on probation about
four times since 1997, but failed to benefit from probation
each time; and (3) has twice been placed on probation with
the condition that he complete a treatment court program, but
was removed from the program both times. Finally, the
probation officer found that petitioner assaulted another
woman on June 15, 2016, and demanded money from her while she
sat in her vehicle. In that case, petitioner pled guilty to
simple assault and his probation was revoked.
August 30, 2018, hearing, the circuit court sentenced
petitioner to ninety years in prison for his first-degree
robbery conviction, and ordered that the sentence be served
consecutively to petitioner's sentence for unlawful
assault. The circuit court entered its sentencing order on
October 8, 2015. Petitioner now appeals his ninety-year
sentence for first-degree robbery.
Supreme Court of Appeals 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).
appeal, petitioner argues that the circuit court violated
Article III, Section 5 of the West Virginia Constitution in
sentencing petitioner to a ninety-year term of incarceration
for his first-degree robbery conviction. That section
provides, in pertinent part, that "[p]enalties shall be
proportioned to the character and degree of the
offence." Petitioner admits that a ninety-year sentence
is permissible under the open-ended robbery statute; however,
he argues that his sentence is so disproportionate that it
shocks the conscience and offends fundamental notions of
human dignity. Petitioner claims he will have to serve
twenty-two years and six months in prison before he is
eligible for parole, whereas a person convicted of murder in
the first degree (with mercy) is eligible for parole in
fifteen years. Petitioner also asserts that if he is not
released on parole, he will serve forty-five years in prison
with good time. Accordingly, he will be eighty-three years
old when he is released from prison, well past the life
expectancy of the average person. Therefore, petitioner avers
that the circuit court imposed a life sentence. Finally,
petitioner argues that his ninety-year sentence is
disproportionate because he did not use a weapon when he
assaulted Ms. Higgs. Petitioner points out that in State
v. Cooper, 172 W.Va. 266, 304 S.E.2d 851 (1983), we
reversed a forty-five-year sentence for first-degree robbery
and suggested the appropriate sentence was the ten-year
statutory minimum because the defendant did not use a weapon.
sentence is not disproportionate under Article III, Section 5
of the Constitution of West Virginia. "Two tests are
employed in determining whether a sentence is
constitutionally disproportionate: a subjective test and an
objective test. State v. Gibbs, 238 W.Va. 646, 659,
797 S.E.2d 623, 636 (2017)." Jeffrey v. Mutter,
No. 17-0792, ...