                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


State of West Virginia,                                                              FILED
Plaintiff Below, Respondent                                                       July 30, 2020
                                                                                EDYTHE NASH GAISER, CLERK
vs.) No. 19-0232 (Putnam 18-F-16)                                               SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA


William R.,
Defendant Below, Petitioner


                               MEMORANDUM DECISION

        Petitioner William R., by counsel Herbert L. Hively, II and Paul Eugene Stroebel, appeals
the March 13, 2019, order of the Circuit Court of Putnam County that sentenced him on two counts
of sexual abuse in the first degree of his daughters, T.R. and A.R., and one count of distributing a
non-narcotic controlled substance to his daughter S.R. under West Virginia Code § 60A-4-406(b).1
The State of West Virginia, by counsel Holly M. Flanigan, filed a response in support of the circuit
court’s order.

       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 March of 2018, petitioner was indicted on two counts of first-degree sexual abuse of his
daughters, T.R. and A.R., under West Virginia Code § 61-8B-7(a)(1); and one count of distributing
a non-narcotic controlled substance to a person under the age of eighteen, his daughter S.R., under
West Virginia Code § 60A-4-406(b). Petitioner’s criminal conduct occurred between 1996 and
2004. At the time of his arrest, petitioner was living with his wife of ten years, who was not the
children’s mother.

        On December 13, 2018, petitioner pled guilty to all three counts. The circuit court retained
discretion in sentencing.


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         Consistent with our long-standing practice in cases with sensitive facts, we use
initials where necessary to protect the identities of those involved. See In re K.H., 235 W. Va. 254,
773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 91993); State v. Edward
Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
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        At the outset of petitioner’s February 13, 2019, sentencing hearing, the trial court noted
that it had considered petitioner’s presentence investigation report, petitioner’s supplement
regarding that report and his objections to it, and the letters the court received from petitioner’s
current wife and two of his friends. The court then heard argument from petitioner’s counsel who
asked that petitioner be sentenced to concurrent terms for his offenses. Petitioner’s counsel
emphasized petitioner’s cooperation in this case, his attributes, his time in the military, his lack of
other criminal convictions, his age, the length of time between his crimes and his convictions, and
the letters from his wife and two friends describing his good character and their disbelief that
petitioner committed the crimes of which he was accused.

        Petitioner’s victims then testified. A.R. testified that despite the time that had passed since
petitioner’s sexual abuse, she “wake[s] up in the night and [she] can feel him on [her] skin. The
nightmares continue and are horrendous.” Regarding her mother and her sisters, A.R. said, “[a]ll
we could do was simply survive. Over time [petitioner] obliterated my family . . . and caused us
more pain and fear than most could ever fathom.” A.R. concluded that she “lost,” no matter the
outcome of the sentencing hearing.

        S.R. spoke of the devastating effects of unresolved trauma and how it (1) affected her habits
and her outlook on life, (2) led to addictions and poor decision-making, and (3) took a toll on her
relationships. She also said that the trauma triggered physical pain that spread until it “obscured
reality and challenged beliefs.” S.R. asked the court to give her family “the power to transform
and resurrect.”

         T.R. described how petitioner’s “ghost haunts [her], watching over [her] life, planning to
do harm.” She also described how petitioner “uprooted the memory of God and showed [her] that
there is no heaven, but only flames of fire.” T.R. said petitioner, “[l]ike a lion . . . hunted [her,] and
destroyed every part of [her].”

        In sentencing petitioner, the court said that it agreed “you have to take the sum total of a
person’s life . . . [b]ut at the same time, we all have to have accountability for the things that we
do in our lives, good and bad.” The court noted that petitioner “terrorized his family for a lot longer
than he served his country,” and “you can see from [petitioner’s daughters’] statements the
appreciable pain that he’s put them through as victims[.]” The court noted that the statutory penalty
for both sexual abuse in the first degree under West Virginia Code § 61-8B-7(a)(1), and for
distributing a controlled substance to a minor under West Virginia Code § 60-4-406(b) is one to
five years in prison. The circuit court also noted that, due to petitioner’s plea agreement, it was
limited in sentencing. The court then imposed a sentence of one to five years in prison for each of
petitioner’s three crimes, to run consecutively, followed by a term of fifty years of supervised
release. In denying petitioner’s request to run his sentences concurrently, the court said,
“[s]ometimes . . . the sentence does not even do justice to the crimes, and perhaps this is one of
those times.”

        Petitioner now appeals that circuit court’s sentencing order. “The Supreme Court of
Appeals reviews sentencing orders, including orders of restitution made in connection with a
defendant’s sentencing, under a deferential abuse of discretion standard, unless the order violates
statutory or constitutional commands.” Syl. Pt. 1, State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221

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(1997).

        Petitioner raises two assignments of error on appeal. Petitioner first argues that his sentence
is excessive and disproportionate in violation of Article III, Section 5 of the West Virginia
Constitution because his case is replete with mitigating circumstances. Petitioner highlights that
(1) he is an honorably discharged veteran with no prior criminal history; (2) he was a police officer
for two years; (3) he has always been employed and is a productive member of society; and (4)
fourteen years had passed since he committed his crimes. Although petitioner acknowledged the
seriousness of his crimes, he claimed that his three one-to-five-year sentences could be a life
sentence given that he is sixty years old and has health issues. Petitioner asks that he be resentenced
and that, upon resentencing, the court order two or all three of his sentences run concurrently.

         We have oft said 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). Petitioner’s sentences are within “statutory
limits.” The statutory penalty for both sexual abuse in the first degree under West Virginia Code
§ 61-8B-7(a)(1), and for distributing a non-narcotic controlled substance under West Virginia
Code § 60-4-406(b), is one to five years in prison. The circuit court imposed that sentence for each
of petitioner’s three crimes.

         As for petitioner’s proportionality argument, we reject it. We have held that, “[w]hile our
constitutional proportionality standards theoretically can apply to any criminal sentence, they are
basically applicable to those sentences where there is no fixed maximum set by statute or where
there is a life recidivist sentence.” Syl. Pt. 4, Wanstreet v. Bordenkircher, 166 W. Va. 523, 276
S.E.2d 205 (1981). Here, petitioner’s sentences have a fixed maximum and he did not receive a
life recidivist sentence. Further, the Court has consistently declined to review proportionality
challenges to sentences rendered under statutes providing maximum penalties. See, e.g., Robert
J.M. v. Ballard, No. 14-1315, 2016 WL 3369556, at *12 (W. Va. June 17, 2016)(memorandum
decision). Finally, “[i]t is not the proper prerogative of this Court to substitute its judgment for that
of the trial court on sentencing matters[.]” State v. Georgius, 225 W. Va. 716, 722, 696 S.E.2d 18,
24 (2010).

        Regarding the question of whether petitioner’s sentence was based on any impermissible
factor, petitioner claims in his second assignment of error that the trial court gave undue emphasis
to the victims’ statements as shown by the fact that it ran petitioner’s sentences concurrently.
Petitioner also claims that the court failed to address the letters provided by his wife and his two
friends or any of the alleged mitigating factors he listed above. Petitioner concludes, without
citation to any authority, that it is impermissible for the trial court to rely so heavily on the victims’
statements and to fail to acknowledge his mitigating evidence.

        We first note that West Virginia Code § 61-11A-3 mandates that a sentencing court
consider the impact of a crime on its victims. Thus, the court was required to consider the victims’
impact statements. Moreover, at petitioner’s sentencing hearing, the court also considered
petitioner’s presentence investigation, his letter regarding the presentence investigation and their
objections to it, and the argument from both of petitioner’s attorneys who sought the imposition
of concurrent sentences. The court also considered the letters submitted to it from petitioner’s wife

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and his friends, despite petitioner’s claims to the contrary.

        Accordingly, because petitioner fails to show that his sentence was constitutionally
excessive or disproportionate, we affirm the circuit court’s March 13, 2019, sentencing order.

                                                                                    Affirmed.

ISSUED: July 30, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison

NOT PARTICIPATING:

Justice Margaret L. Workman




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