Jennifer Marie Wallace, by counsel Courtney L. Ahlborn,
appeals the September 13, 2018, order entered in the Circuit
Court of Wood County that sentenced her to seven years in
prison upon her guilty plea to one count of second-degree
arson. The State of West Virginia, by counsel Scott E.
Johnson, filed a response and a supplemental appendix. On
appeal, petitioner argues that her sentence is
constitutionally impermissible because it is disproportionate
to her crime.
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.
November 7, 2017, petitioner was indicted by a Wood County
Grand Jury on one count of first-degree arson, see
West Virginia Code § 61-3-1, and two counts of causing
serious bodily injury during an arson-related crime.
See W.Va. Code § 61-3-7(b). Petitioner
thereafter entered a guilty plea to second-degree arson, a
lesser-included offense of first-degree arson. See
W.Va. Code § 61-3-2. Under the plea agreement, the State
agreed to dismiss the remaining counts of the indictment.
to the pre-sentence investigation report, on August 24, 2017,
petitioner went to the apartment of a former boyfriend where
she got into an argument with him, his girlfriend, and
another resident of the apartment building. As petitioner
left the residence, she set fire to a gas can that was
located on the back deck, which connects to other apartments
within the building. Petitioner's former boyfriend
sustained injuries to the inside of his legs while attempting
to extinguish the fire, while another tenant burned his hand
after he grabbed a door knob in an effort to locate the fire.
witnesses informed police that petitioner had bragged about
previously setting houses on fire when she was upset or
someone owed her money. In the present case, petitioner told
one witness that someone was "going to take a loss
today." In her own statements to police, petitioner stated
that she "was on a lot of drugs plus very
intoxicated[.]" She told police that she "walked
out back, grabbed a gas can and lit the f****ng thing and
walked off[, ]" that she was trying to harm her former
boyfriend's present girlfriend, and that if she sees the
girlfriend "when she gets out that she will kill
her." According to petitioner, "it was set that
place on fire or blow that b**ch's head off. I don't
have access to a gun"[;] however, she declared that if
she did have access to a gun, she would have "walked up,
pulled the screen out and pulled the trigger."
Petitioner stated further that she did not care about the
other people who were in the apartment or about "the
drug addicts upstairs or their two little kids." During
her arraignment, petitioner continued to state that she
wished that the girlfriend was dead and that she would have
set her on fire. When her bond was set at $300, 000,
petitioner declared, in the presence of the presiding
magistrate, that, "for a $300, 000 bond, I should have
just killed her." Petitioner also told police that if
someone "pissed me off" again, that she would
probably set someone else's house on fire.
sentencing hearing was conducted on September 13, 2018.
During the hearing, petitioner, by counsel, requested
alternative sentencing, noting that petitioner had already
been incarcerated for 385 days, that she had a very minimal
criminal history, and that the underlying incident "was
fueled a lot by her substance abuse problem, which she would
be willing to address during her probation." The State
requested a sentence "between seven years and the
maximum" [i.e., ten years]. At the conclusion of the
hearing, the circuit court denied petitioner's request
for alternative sentencing and sentenced her to a period of
incarceration of seven years. In the September 13, 2018,
order memorializing petitioner's sentence, the court
stated "that the character and the circumstances of the
case indicate that the Defendant is likely to again commit
crime and that the public good does require that the
Defendant be imprisoned." It is from this order that
petitioner now appeals.
sole assignment of error is that her sentence is
disproportionate to the crime and violates the constitutional
prohibition against cruel and unusual punishment. She
contends that she had a minimal criminal history consisting
only of misdemeanors, had no prior felony convictions or
arrests, and advised the court that she was willing to
undergo substance abuse treatment in connection with an
alternative sentence. Petitioner acknowledges that "the
threat of significant damage and injury to people is always
present in arson[.]" However, she argues, the people who
put out the fire suffered only "minimal burns" that
"did not require significant medical treatment" and
the apartment building itself sustained only minimal damage.
Petitioner argues that, for all of these reasons, the
seven-year sentence imposed upon her is disproportionate to
the crime and should be vacated in favor of an alternative
sentence of a prison term of less than five years.
no error. This Court reviews sentencing orders
"'under a deferential abuse of discretion standard,
unless the order violates statutory or constitutional
commands.' Syllabus Point 1, [in part, ] State v.
Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997)." Syl.
Pt. 2, in part, State v. Eilola, 226 W.Va. 698, 704
S.E.2d 698 (2010). Furthermore, "'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)."
Eilola, 226 W.Va. at 699, 704 S.E.2d at 699, syl.
pt. 1. Finally, this Court has explained that "[w]hile
our constitutional proportionality standards theoretically
can apply to any criminal sentence, they are basically
applicable to those sentences where there is either no fixed
maximum set by statute or where there is a life recidivist
sentence." Syl. Pt. 4, Wanstreet v.
Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981).
to West Virginia Code § 61-3-2, one who is convicted of
arson in the second degree "shall . . . be sentenced to
the penitentiary for a definite term of imprisonment which is
not less than one nor more than ten years."
Id., in part. Petitioner's seven-year sentence
clearly falls within these statutory parameters. Moreover,
petitioner does not claim that the sentence imposed was based
upon any impermissible factors. See Eilola, 226
W.Va. at 699, 704 S.E.2d at 699, syl. pt. 1. To the contrary,
the circuit court properly considered the fact that
petitioner had no regard for the ramifications of her
actions, regretted that her actions had not resulted in the
girlfriend's death, and declared that if someone
"pissed [her] off" again, she would set someone
else's house on fire. The court's belief that
petitioner "is likely to again commit crime" and
that she should be imprisoned for "the public good"
was not ill-conceived. The imposition of a seven-year
sentence was, thus, within the circuit court's discretion
and petitioner's claim that it was disproportionate to
the crime is without merit.
foregoing reasons, the circuit court's sentencing order
entered on September 13, 2018, is affirmed.
CONCURRED IN BY: Chief Justice Elizabeth D. Walker, Justice
Margaret L. Workman, Justice Tim Armstead, Justice Evan ...