Keith Irons, by counsel Courtney L. Ahlborn, appeals the
Circuit Court of Wood County's May 22, 2018, order
sentencing him to a one-to-five-year term of incarceration
for his conviction of one count of conspiracy to deliver a
controlled substance. The State of West Virginia, by counsel
Scott E. Johnson, filed a response. On appeal, petitioner
argues that the circuit court erred in considering
impermissible factors during 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.
January of 2016, petitioner was indicted on three counts of
delivery of a controlled substance, three counts of
second-offense delivery of a controlled substance, and three
counts of conspiracy to deliver a controlled substance. In
April of 2018, petitioner pled guilty to one count of
conspiracy to deliver a controlled substance.
circuit court held a sentencing hearing in May of 2018.
Petitioner requested alternative sentencing and cited certain
classes taken during his incarceration as evidence of his
rehabilitation. The State opposed alternative sentencing
based on petitioner's criminal history, which included a
recent federal conviction for delivery of heroin. The State
argued that petitioner was sentenced to probation for that
federal conviction, and he violated the terms of that
probation. Before pronouncing petitioner's sentence, the
circuit court openly considered petitioner's criminal
history and prior sentences:
All right. I'm sure [petitioner] wishes on the prior case
in 11-F-251 that he had successfully completed Anthony
Center. He would have been a long ways better, in
better shape than he is today, but he had been returned
unfit, according to those records and according to the
records of this Court. So he ended up sentenced on wanton
endangerment and served a jail sentence for domestic battery
on that same charge.
And he was charged here locally, but then that was picked up
by the federal authorities and he was prosecuted for
distribution of heroin in Federal Case 2:14-CR000055-1.
That's where he is currently serving a sentence in
federal custody for violation of his supervised release. So
he does have a significant criminal history.
circuit court also considered information in petitioner's
presentence investigation report:
I see in [petitioner's] statement, he tries to deflect
blame to a co-defendant . . . but at least one case, the
delivery was directly from [petitioner], as shown on page
[three] of the pre-sentence report, and that he admonished
the [confidential informant] not to come directly to him in
the future, not to come to his house. Apparently, he usually
delivered through an intermediary such as . . . one of his
co-defendants. He also utilized [another] co-defendant . . .
involved in the transactions. So these are very serious
matters regarding heroin distribution in our area.
these factors, the circuit court sentenced petitioner to a
one-to-five-year term of incarceration and ordered that it
run consecutively to petitioner's sentence for his
federal conviction. The circuit court entered the sentencing
order on May 22, 2018. It is from this order that petitioner
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) (citations omitted). 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).
appeal, petitioner argues that two of the circuit court's
factors during sentencing were impermissible. First,
petitioner argues that the circuit court should not have
considered that he was deemed "unfit" for the
Anthony Center. Petitioner asserts that he served his
sentence following his expulsion from the Anthony Center and
the circuit court punished him twice for the same crime in
considering that information. 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). In
this case, the circuit court considered petitioner's
prior opportunities for alternative sentencing, namely the
Anthony Center and probation for his federal conviction.
Petitioner's failure to abide by those prior alternative
sentences is relevant in sentencing petitioner for his most
recent conviction and not an impermissible factor. Petitioner
is entitled to no relief in this regard.
also argues that the circuit court erred in considering
evidence related to the crimes charged in the indictment, but
for which he was not convicted. Petitioner avers that the circuit
court considered police reports included in the presentence
investigation report as fact and accused petitioner of
delivery of a controlled substance. We find no error in the
circuit court's consideration of this information.
"[T]he trial court, in determining the character and
extent of a defendant's punishment, may consider 'the
facts of the [crime] and may search anywhere, within
reasonable bounds, for other facts which tend to aggravate or
mitigate the offense.'" State v. Koon, 190
W.Va. 632, 641, 440 S.E.2d 442, 451 (1993) (quoting State
v. Houston, 166 W.Va. 202, 208, 273 S.E.2d, 375, 378
(1980)). The circuit court reasonably relied on the narrative
of the crime provided in the presentence investigation report
to gauge petitioner's involvement in the crime.
Conspicuously, petitioner did not object to the presentence
investigation report or any of the information contained
therein. Therefore, we do not find this information to be an
impermissible factor for the purpose of sentencing.
Petitioner's objection on appeal to the veracity of this
information is unpersuasive. Petitioner's decision to
plead guilty stunted the determination of the facts through a