Theresa M. Vanmeter, by counsel Jason T. Gain, appeals the
Circuit Court of Grant County's May 4, 2018, order
sentencing her to a total indeterminate term of five to
forty-five years of incarceration following her conviction of
three counts of possession with intent to deliver a
controlled substance, one count of conspiracy to deliver a
controlled substance, and one count of criminal child neglect
causing substantial risk of death or serious bodily injury.
The State of West Virginia, by counsel Caleb A. Ellis, filed
a response. Petitioner filed a reply. On appeal, petitioner
argues that her prior drug use and drug addiction was an
impermissible factor upon which the circuit court based her
sentence. Petitioner further argues that the Court should
reconsider and overturn Syllabus Point 4 of State v.
Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982), which
states 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
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.
November of 2017, petitioner was indicted on nine separate
offenses: three counts of possession with intent to deliver a
controlled substance, three counts of conspiracy to deliver a
controlled substance, two counts of simple possession of a
controlled substance, and one count of child neglect causing
substantial risk of death or serious bodily injury.
March of 2018, petitioner pled guilty to three counts of
possession with intent to deliver a controlled substance, one
count of conspiracy to deliver a controlled substance, and
one count of criminal child neglect causing substantial risk
of death or serious bodily injury- totaling five separate
offenses. Per the plea agreement, the remaining charges were
dismissed and the State would recommend that the sentences
run consecutively. The plea agreement was later modified to
allow petitioner the ability to argue for probation at
sentencing. The circuit court ordered that a presentence
investigation report be completed prior to sentencing; the
report was completed on March 30, 2018.
circuit court held a sentencing hearing in April of 2018.
Petitioner requested probation and cited her recent
nine-month period of sobriety at a sober living facility. The
State opposed alternative sentencing based on
petitioner's extensive drug use history as revealed in
her presentence investigation report, her recent drug-induced
seizure while pregnant, and that her five-year-old child was
found to be living in a home filled with loaded guns and
illegal drugs. The State argued that petitioner's recent
sobriety was only due to her arrests.
sentencing, the circuit court considered information provided
in petitioner's presentence investigation report and
I do appreciate the efforts Mrs. Van[m]eter's made.
Sometimes you get a little bit too late. And this-I mean,
this information, I have to agree with [the prosecutor]. I
was a prosecutor for twenty years; I've been a [j]udge
for nine. I've never seen a presentence report like that.
partly on petitioner's voluminous drug use history, the
circuit court sentenced petitioner to the following terms of
incarceration: two terms of one to fifteen years for her
convictions of possession with intent to deliver heroin and
Dilaudid, one term of one to five years for her conviction of
possession with intent to deliver methamphetamine, one term
of one to five years for her conviction of conspiracy, and
one term of one to five years for her conviction of child
neglect which could result in substantial risk of death or
serious bodily injury. Further, the circuit court ordered the
sentences to run consecutively. The circuit court entered a
sentencing order reflecting its decision on May 4, 2018, and
it is from this order 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. 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). Furthermore, regarding the
granting of probation as an alternative to incarceration,
"the matter of probation is within the sound discretion
of the trial court." State v. Miller, 172 W.Va.
718, 720, 310 S.E.2d 479, 481 (1983).
appeal, petitioner concedes that her sentences are within the
applicable statutory limits, but argues that this Court
should find that drug addiction and prior drug use constitute
impermissible factors not to be considered at sentencing. In
support of this position, petitioner relies upon Robinson
v. California, 370 U.S. 660 (1962). In
Robinson, the United States Supreme Court addressed
a constitutional challenge to a California statute that made
the status of narcotic addiction a criminal offense,
"for which the offender may be prosecuted 'at any
time before he reforms.'" Id. at 666.
Ultimately, the United States Supreme Court found that the
statute in question was unconstitutional because imprisoning
those afflicted with drug addiction when it was possible that
they had "never touched any narcotic drug within the
State or been guilty of any irregular behavior there,"
inflicted a "cruel and unusual punishment in violation
of the Fourteenth Amendment." Id. at 667.
Robinson is not applicable because it does not speak
to the factors a trial court may consider at sentencing.
Robinson dealt with the constitutionality of a
statute criminalizing addiction, but petitioner does not
challenge the validity of the statutes under which her
convictions were obtained and concedes that she violated
them. Robinson simply fails to support
petitioner's assertion that an individual's history
of drug use may not be considered at sentencing.
we have previously held that a sentencing court may consider
a defendant's prior criminal history and rehabilitative
potential. See syl. pt. 2, State v. Buck,
173 W.Va. 243, 314 S.E.2d 406 (1984) (holding that a
sentencing court may consider codefendants' respective
involvement in the crime, prior records, rehabilitative
potential, and lack of remorse). Here, the circuit court
considered petitioner's extensive prior drug
and her non-compliance with previous home incarceration
regulations, and found a low likelihood of compliance with
alternative sentencing. Buck permits consideration
of a defendant's prior criminal history, and
petitioner's prior drug use was considered as it related
to her rehabilitative potential, which is also permissible
under Buck. Thus, petitioner has failed to
demonstrate error, and we find none.
petitioner argues that this Court should reconsider and
overturn its holding in Syllabus Point 4 of
Goodnight. In support of this argument, petitioner
asserts several public policy arguments that sentencing among
the circuit courts is inconsistent and that the lack of
uniformity in sentencing violates a defendant's equal
protection and due process rights. Petitioner's counsel
anecdotally argues that, in his experience, petitioner would
likely have received probation for her convictions if she had
been sentenced in another county. However, petitioner's
counsel's assertions are purely speculative, and
petitioner cites no authority that discretion in sentencing