                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia, Plaintiff Below,                                             FILED
Respondent                                                                           April 28, 2014
                                                                                RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
vs) No. 13-0768 (Greenbrier County 11-F-111 and 11-F-162)                         OF WEST VIRGINIA



Keith R., Defendant Below,
Petitioner


                                 MEMORANDUM DECISION

        Petitioner Keith R., by counsel Douglas Arbuckle, appeals the Circuit Court of Greenbrier
County’s June 25, 2013, order sentencing him to consecutive terms of incarceration following his
guilty pleas to one count of sexual abuse by a parent, guardian, or custodian and one count of
incest.1 The State, by counsel Laura Young, filed a response. On appeal, petitioner alleges that the
circuit court erred in considering an impermissible factor during sentencing and allowing one of
the victims to make two separate victim impact statements.

        This 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.

        In June of 2011, petitioner was indicted in Criminal Action No. 11-F-111 on three counts
of sexual abuse by a parent, guardian, or custodian against one of his stepdaughters, who was a
minor. Several months later, petitioner was indicted in Criminal Action No. 11-F-162 on fifteen
counts of various sexual offenses against his other stepdaughter, also a minor, and against another
unrelated minor female. These included five counts of incest; five counts of sexual abuse by a
parent, guardian, or custodian; one count of first degree sexual assault; and four counts of third
degree sexual assault.

       On December 18, 2012, petitioner entered a plea agreement pursuant to Kennedy v.
Fraizer, 178 W.Va. 10, 357 S.E.2d 43 (1987), wherein petitioner pled guilty to one count of
sexual abuse by a parent, guardian, or custodian in Criminal Action No. 11-F-111 and one count

       1
         In keeping with this Court’s policy of protecting the identity of minors and the victims of
sexual crimes, petitioner will be referred to by his last initial throughout the memorandum
decision. See, e.g., State v. Larry A.H., 230 W. Va. 709, 742 S.E.2d 125 (2013) (per curiam);
State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
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of incest in Criminal Action No. 11-F-162. As part of the agreement, the remaining counts from
both indictments were dismissed. In February of 2013, the circuit court continued petitioner’s
original sentencing pending a sixty-day diagnostic evaluation at the Northern Correctional Center.

        In June of 2013, the circuit court sentenced petitioner to a term of incarceration of ten to
twenty years for one count of sexual abuse by a parent, guardian, or custodian in violation of
West Virginia Code § 61-8D-5 and a consecutive sentence of five to fifteen years for one count of
incest in violation of West Virginia Code § 61-8-12. Additionally, the circuit court denied
petitioner’s motion for home incarceration and ordered that petitioner serve a period of ten years
of supervised release following his incarceration. Petitioner was also required to register as a sex
offender pursuant to West Virginia Code § 15-12-2. It is from this order that petitioner now
appeals.

        “‘The 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 WVa. 271, 496 S.E.2d 221 (1997).” Syl. Pt. 1, State v. James, 227
W.Va. 407, 710 S.E.2d 98 (2011). Moreover, “‘[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.’ Syllabus Point 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).” Syl. Pt. 3,
State v. Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010).

       On appeal, petitioner raises two assignments of error. Petitioner first argues that his entry
of a Kennedy plea barred the circuit court from considering whether he had accepted
responsibility for the crimes during sentencing.

        We first note that the record on appeal reveals that petitioner did not accept responsibility
for his crimes. Petitioner’s diagnostic evaluation states that petitioner believes that his
stepdaughters fabricated these crimes as retaliation for divorcing their mother. Pursuant to
Kennedy v. Frazier, “[a]n accused may voluntarily, knowingly and understandingly consent to the
imposition of a prison sentence even though he is unwilling to admit participation in the crime, if
he intelligently concludes that his interests require a guilty plea and the record supports the
conclusion that a jury could convict him.” Syl. Pt. 1, Kennedy v. Frazier, 178 W.Va. at 10, 357
S.E.2d at 43. However, nothing in Kennedy precludes a court from considering at sentencing
whether a defendant has accepted responsibility for his crimes. Id. Nor does petitioner cite to any
law that precludes a court from considering this issue in sentencing. “This Court has identified
remorse or the lack thereof as a factor to be taken into account by a trial judge when sentencing a
defendant.” State v. Jones, 216 W.Va. 666, 669, 610 S.E.2d 1, 4 (2004). Additionally, the record
supports the circuit court’s consideration of the seriousness of petitioner’s crimes. Therefore, the
circuit court did not err in considering whether petitioner had accepted responsibility for his
crimes during sentencing.

        Next, petitioner argues that the circuit court erred in permitting one of his victims to give a
second victim impact statement during the sentencing hearing. In support of his position,
petitioner alleges that this second statement was improper because the victim had previously
given a victim impact statement at the hearing in February of 2013, and the State failed to notify

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him of the second statement.2 Petitioner’s argument is based on West Virginia Code § 61-11A-2
which states, in part, that “the court shall permit the victim of the crime to appear before the court
to make an oral statement for the record if the victim notifies the court of his or her desire to make
such a statement after receiving notification provided in subsection (c) of this section.”
                                                                                          FILED
        We have previously held that “‘[w]here the issue on an appeal from the circuit court is
clearly a question of law or involving an interpretation of a statute, we apply a de novo 3:00 p.m.
                                                                                     released at standard
                                                                                  RORY L. PERRY II, CLERK
of review.’ Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).” Syl.
                                                                                    SUPREME COURT OF
Pt. 1, State v. Steven H., 215 W.Va. 505, 600 S.E.2d 217 (2004). Moreover, it APPEALS is a petitioner’s
burden to show the error in judgment of which he complains. See Syl. Pt. 2, WV Dept. of Health
& Human Resources Employees Federal Credit Union v. Tennant, 215 W.Va. 387, 599 S.E.2d
810 (2004). Here, the record is insufficient to determine if the victim properly notified the circuit
court of her desire to make a statement prior to sentencing. Petitioner fails to cite to any case law
in support of his position that a victim is prohibited from making more than one victim impact
statement. Importantly, petitioner also failed to allege how the second statement affected his
rights. See State v. Marple, 197 W.Va. 47, 51, 475 S.E.2d 47, 51 (1996) (“Even if we find the
circuit court abused its discretion, the error is not reversible unless the defendant was
prejudiced.”). In this case, the record shows that the victim’s two statements were substantially
similar to each other and did not affect petitioner’s rights. As such, we find no error in the circuit
court’s decision to allow a second victim impact statement.

       For the foregoing reasons, the circuit court’s June 25, 2013, sentencing order is hereby
affirmed.


                                                                                              Affirmed.

ISSUED: April 28, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




       2
        The circuit court continued petitioner’s original sentencing hearing to obtain additional
information to aid in sentencing and ordered petitioner to undergo a sixty-day diagnostic
evaluation at the Northern Correctional Center.
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