Shannon Scott Hines, by counsel Timothy P. Rosinsky, appeals
the Circuit Court of Wood County's April 26, 2018, order
sentencing him to an indeterminate term of three to twenty
years of incarceration for two felony convictions. The State
of West Virginia, by counsel Mindy M. Parsley, filed a
response. On appeal, petitioner argues that the circuit court
abused its discretion in imposing a sentence that was
disproportionate to his crimes.
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.
September of 2016, petitioner was indicted on one count of
counterfeiting, one count of grand larceny, and three counts
of third-offense shoplifting. In December of 2016, petitioner
pled guilty to the counterfeiting and grand larceny
charges. In consideration for his guilty plea, the
State agreed to dismiss the remaining counts of the
indictment and make "a non-binding recommendation of
concurrent sentencing." Petitioner moved for alternative
sentencing and represented that he would enter an inpatient
substance abuse treatment facility if granted a
post-conviction bond. Ultimately, the circuit court granted
the motion upon a condition that petitioner return to the
North Central Regional Jail "if [he] leaves the program
for any reason whether the reason is voluntary, involuntary,
or upon successful completion of the inpatient program in
lieu of bond." Petitioner was released from the regional
jail and transported directly to the specified treatment
January of 2017, petitioner's probation officer provided
the circuit court with notice that petitioner was discharged
from his substance abuse treatment facility due to his
"conduct and non-compliance." The probation
officer's report provided that petitioner participated in
the program for "16 days out of 28 days" and
"failed to meet any of his goals and objectives."
The circuit court held a sentencing hearing in February of
2017. Petitioner did not appear, but was represented by
counsel. The circuit court issued a capias warrant due to
petitioner's failure to appear. Petitioner was
apprehended fifteen months later.
circuit court held the final sentencing hearing in April of
2018. Petitioner acknowledged how substance abuse negatively
affected his life and requested alternative sentencing to
participate in an inpatient substance abuse treatment
facility. Petitioner asserted that since he was discharged
from his prior treatment he had been free from heroin, his
admitted drug of choice. However, petitioner acknowledged
that he had recently been convicted of domestic violence. The
State cited petitioner's failure to complete the
treatment program and his lengthy criminal history in support
of its motion for consecutive sentences. Ultimately, the
circuit court denied petitioner's motion for alternative
sentencing. The circuit court sentenced petitioner to
consecutive terms of incarceration of not less than two nor
more than ten years for counterfeiting and not less than one
nor more than ten years for grand larceny. The circuit court
entered a sentencing order reflecting its decision on April
26, 2018. It is from this order that petitioner now appeals.
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)." Syl. Pt. 1, State v.
James, 227 W.Va. 407, 710 S.E.2d 98 (2011). "This
Court has also specified 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)." State v.
Fleming, 237 W.Va. 44, 58, 784 S.E.2d 743, 757 (2016).
argues that his sentence is unconstitutionally
disproportionate to his crimes. "Article III, Section 5
of the West Virginia Constitution contains the cruel and
unusual punishment counterpart to the Eighth Amendment of the
United States Constitution, has an express statement of the
proportionality principle: 'Penalties shall be
proportioned to the character and degree of the
offence.'" Syl. Pt. 8, State v. Vance, 164
W.Va. 216, 262 S.E.2d 423 (1980).
asserts that the circuit court imposed consecutive sentences
as retribution for his failure to appear for his first
sentencing hearing. Petitioner stresses that his substance
abuse induced his criminal activity and that he remained
heroin-free while he was a fugitive from justice. In light of
this information, petitioner asserts that the circuit
court's decision "shocks the conscience." We
disagree and find that petitioner is entitled to no relief.
appeal, petitioner does not dispute that his sentences are
within the applicable statutory guidelines and does not
allege that the circuit court relied on an impermissible
factor in imposing its sentence. Accordingly, per syllabus
point four of Goodnight, petitioner is not entitled
to appellate review of the proportionality of his sentence.
foregoing reasons, the circuit court's April 26, 2018,
sentencing order is hereby affirmed.
CONCURRED IN BY: Chief Justice Elizabeth D. Walker Justice
Margaret L. Workman Justice Tim Armstead Justice Evan ...