Date: 09-21-2020

Case Style:

Case Number: 19-0500

Judge: CONCURRED IN BY: Chief Justice Tim Armstead Justice Margaret L. Workman Justice Elizabeth D. Walker Justice Evan H. Jenkins Justice John A. Hutchison

Court: STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

Plaintiff's Attorney: Scott E. Johnson

Defendant's Attorney:

Description: Spencer, WV - first-degree murder, nighttime burglary, conspiracy to commit a felony

In February of 2017, the grand jury indicted petitioner on one count of first-degree murder,
one count of nighttime burglary, and one count of conspiracy to commit a felony. Thereafter,
petitioner entered into a plea agreement with the State of West Virginia to resolve all pending
counts, wherein the State agreed to dismiss the counts of burglary and conspiracy if petitioner
agreed to plead guilty to first-degree murder. The State also agreed to recommend that petitioner
receive mercy at sentencing. In January of 2019, petitioner pled guilty to one count of first-degree
murder. Prior to sentencing, the Adult Probation Department submitted a presentence investigation
report to which petitioner objected to portions relating to previously dismissed criminal charges
and jail disciplinary records.
The circuit court held the final sentencing hearing in April of 2019, noted petitioner’s
objections to certain information in the presentence investigation report, and stated that it would
give the information appropriate weight. Petitioner called three witnesses who testified on his
FILED
September 3, 2020
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
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behalf and argued in favor of mercy. The State presented the testimony of four witnesses who were
family members or friends of the victim. Ultimately, the State recommended that petitioner receive
mercy and be granted a life sentence of incarceration with the possibility of parole. At the
conclusion of the hearing, the circuit court stated the following:
The Court has considered the file in this matter. The Court has considered the
presentence investigation report, the submissions of [petitioner], and the exhibits in
mitigation of sentence. All the matters of record herein for the Court to consider
with regard to sentencing in this matter. I’ve afforded the defense an opportunity to
present the witnesses[,] I’ve heard from the defense, provided [petitioner] the
opportunity to speak on his own behalf, I’ve heard from the state and the victims in
this matter, and the Court shall now impose a sentence at this time.
The circuit court then sentenced petitioner to life without the possibility of parole and entered a
sentencing order reflecting its decision on April 23, 2019. It is from this order that petitioner now
appeals.
We have previously held as follows:
“In reviewing challenges to the findings and conclusions of the circuit court,
we apply a two-prong deferential standard of review. We review the final order and
the ultimate disposition under an abuse of discretion standard, and we review the
circuit court’s underlying factual findings under a clearly erroneous standard.
Questions of law are subject to a de novo review.” Syl. Pt. 2, Walker v. West
Virginia Ethics Comm’n, 201 W.Va. 108, 492 S.E.2d 167 (1997).
Syl. Pt. 2, State v. Bruffey, 207 W. Va. 267, 531 S.E.2d 332 (2000).
On appeal, petitioner argues that the circuit court abused its discretion by not making
specific findings of fact and conclusions of law on which its sentencing order was based. In
support, petitioner argues that although the circuit court’s final order states which witnesses
testified and the various types of evidence presented, it failed to “put any of that information into
context of how [it] considered the information and which information [was] . . . used to base its
sentencing decision.” The lack of findings, petitioner argues, “renders impossible a meaningful
appeal, especially in light of the recommendation of mercy from the State of West Virginia.”
Further, petitioner asserts that without specific findings, there is no way to know whether the
circuit court considered information that was improper. Simply stated, he argues, the circuit court
gave no reasons for implementing a sentence of life without mercy versus life with mercy. We find
petitioner’s argument without merit.
Petitioner is correct in that a circuit court “speaks through its written orders, which, ‘as a
rule, must contain the requisite findings of fact and conclusions of law to permit meaningful
appellate review.’” State v. Allman, 234 W. Va. 435, 438, 765 S.E.2d 591, 594 (2014) (citations
omitted). However, here, the circuit court’s order specifies what evidence, exhibits, and testimony
it considered when sentencing petitioner. Moreover, the circuit court addressed petitioner’s
objections to his prior criminal history as well as his jail disciplinary records and stated that it
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would give such information appropriate weight. Petitioner claims that the circuit court may have
relied on this information at sentencing but does not argue or cite authority stating that such
information, contained within a standard presentence investigation report, was impermissible for
consideration at sentencing. In fact, according to Rule 32(b) of the West Virginia Rules of Criminal
Procedure, circuit courts may consider the defendant’s presentence investigation report, which
includes his prior criminal history, in imposing a sentence. Having reviewed the record, we find
that petitioner is entitled to no relief.
Next, petitioner argues that the circuit court abused its discretion by sentencing him to life
imprisonment without mercy when the State recommended mercy. Further, petitioner argues that
the circuit court failed to consider rehabilitation as a factor at sentencing. Petitioner does not
challenge the proportionality of his life sentence and, therefore, our review is limited to the
circuit’s court’s decision to deny petitioner mercy.
This 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).
First and foremost, whether a person convicted of first-degree murder following a guilty
plea will be eligible for parole is left to the sole discretion of the circuit court. See W. Va. Code §
62-3-15 (2014) (“[I]f the accused pleads guilty of murder of the first degree, the court may, in its
discretion, provide that such person shall be eligible for parole. . . .”). However, the circuit court’s
discretion is limited when it accepts a binding plea agreement to a specific sentence. See State v.
Shrader, 234 W. Va. 381, 390, n.18, 765 S.E.2d 270, 279, n.18 (2014) (“a trial court cannot be
bound by a plea agreement unless a specific sentence is involved [and] [i]n accordance with Rule
11(e)(1)(C) of the West Virginia Rules of Criminal Procedure, a plea becomes binding when there
is an agreement to a specific sentence.”).1 Here, petitioner does not contend nor does the record
1Rule 11(e)(1) of the West Virginia Rules of Criminal Procedure provides, in relevant
part,
In General. The attorney for the state and the attorney for the defendant . . . may
engage in discussions with a view toward reaching an agreement that, upon the
entering of a plea of guilty . . . to a charged offense or to a lesser or related offense,
the attorney for the state will do any of the following:
(A) Move for dismissal of other charges; or
(B) Make a recommendation or agree not to oppose the defendant’s request, for a
particular sentence, with the understanding that such recommendation or
request shall not be binding upon the court; or
(C) Agree that a specific sentence is the appropriate disposition of the case[.]
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indicate that the circuit court accepted the State’s recommendation of mercy in a binding plea
agreement pursuant to Rule 11(e)(1)(C) of the West Virginia Rules of Criminal Procedure.
Without the acceptance of a binding plea agreement, the State’s action was merely a
recommendation for mercy “with the understanding that such recommendation or request [was]
not . . . binding upon the [circuit] court,” as provided by Rule 11(e)(1)(B) of the West Virginia
Rules of Criminal Procedure. Therefore, the circuit court was free to exercise its discretion at
sentencing, including deciding whether to grant petitioner mercy, and petitioner cites no evidence
that that the circuit court abused this discretion.
Regarding petitioner’s claims that the circuit court failed to consider his potential for
rehabilitation and relied upon “improper evidence objected to by [him] regarding the pre-sentence
investigation and report,” we likewise find that petitioner is entitled to no relief.2 Petitioner claims
that he would have received mercy had the circuit court not been privy to certain information
contained in his presented investigation report. Indeed, as discussed above, the circuit court
considered information contained in petitioner’s presentence investigation report and noted his
objections to his criminal history and jail disciplinary records. However, petitioner fails to cite to
anything in the record that establishes that the circuit court considered any of the information from
the presentence investigation report to which petitioner objected or otherwise show how this
information was “improper” for the circuit court’s consideration at sentencing. Furthermore,
petitioner’s presentence investigation report was also made available to the circuit court for its
consideration of petitioner’s potential for rehabilitation. Ultimately, these claims are mere
conjecture and entirely unsupported. Below, the circuit court was free to sentence petitioner as it
deemed appropriate after reviewing all the evidence and hearing all of the arguments at sentencing,
and it explained what evidence was presented at said hearing in the final sentencing order. Based
on the information provided at sentencing, the circuit court determined that mercy was not
warranted, and we find no reason to disturb this finding.

Outcome: For the foregoing reasons, the circuit court’s April 23, 2019, sentencing order is hereby affirmed.

Plaintiff's Experts:

Defendant's Experts:

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