          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                 January 2014 Term
                                                                FILED

                                                            January 28, 2014

                                                               released at 3:00 p.m.
                                    No. 12-1413
               RORY L. PERRY II, CLERK
                                                             SUPREME COURT OF APPEALS
                                                                 OF WEST VIRGINIA


                            STATE OF WEST VIRGINIA,

                             Plaintiff Below, Respondent


                                         v.


                            NICHOLAS RYAN ROBEY,

                            Defendant Below, Petitioner





                  Appeal from the Circuit Court of Harrison County

                         Honorable James A. Matish, Judge

                          Criminal Action No. 10-F-122-3


                                    AFFIRMED



                             Submitted: January 22, 2014
                               Filed: January 28, 2014


Jerry Blair, Esq.                                           Patrick Morrisey, Esq.
Clarksburg, West Virginia                                   Attorney General
Attorney for Petitioner                                     Benjamin F. Yancey, III.
                                                            Assistant Attorney General
                                                            Andrew D. Mendelson, Esq.
                                                            Assistant Attorney General
                                                            Charleston, West Virginia
                                                            Attorneys for Respondent


The Opinion of the Court was delivered PER CURIAM.
                              SYLLABUS BY THE COURT


       1.    “‘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 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).



       2.     “‘Sentences 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. 6, State v. Slater,

222 W.Va. 499, 665 S.E.2d 674 (2008).



       3.     “Disparate sentences for codefendants are not per se unconstitutional. Courts

consider many factors such as each codefendant’s respective involvement in the criminal

transaction (including who was the prime mover), prior records, rehabilitative potential

(including post-arrest conduct, age and maturity), and lack of remorse. If codefendants are

similarly situated, some courts will reverse on disparity of sentence alone.” Syl. Pt. 2, State

v. Buck, 173 W.Va. 243, 314 S.E.2d 406 (1984).
Per Curiam:

              The petitioner, Nicholas Ryan Robey, appeals the October 16, 2012, order of

the Circuit Court of Harrison County sentencing him to life in prison without the possibility

of parole following his guilty plea to the offense of felony murder. The petitioner’s sole

assignment of error is that the circuit court erred in imposing a sentence that is

disproportionate in comparison to the sentences received by his three co-defendants. Upon

consideration of the briefs and arguments of the parties, the appendix record, and the

applicable legal authority, and for the reasons discussed below, we find no error and,

accordingly, affirm.



                            I. Facts and Procedural History

              On August 13, 2009, the petitioner and his co-defendants drove to the home

of eighty-year-old Clarence Leeson in rural Harrison County, West Virginia, for the purpose

of committing a burglary. Upon their arrival, the petitioner knocked on Mr. Leeson’s front

door while two of his co-defendants, Christopher Robey, the petitioner’s brother, and Joshua

Morgan, went to the back door.1 When Mr. Leeson answered the door, the petitioner asked

him if he could use his telephone because his car had broken down. While pretending to use

the telephone inside the home, the petitioner allowed his co-defendants to enter the home


       1
        A third co-defendant, Megan Jones (also known as Megan Titus), remained in the
vehicle. According to the petitioner, Ms. Jones had previously been in Mr. Leeson’s home
and came up with the idea to commit the burglary.

                                             1

through the back door. While the petitioner talked with Mr. Leeson in the living room, the

co-defendants searched the home and stole various guns and pills. According to the

petitioner,2

               Then, the only place they had left to search was Mr. Leeson’s
               bedroom and they couldn’t get to it without being seen by Mr.
               Leeson. I asked what they wanted to do, and Chris was holding
               a bat and said “I’ll just kill him.” I said I didn’t want Mr.
               Leeson to die so I said “no, I’ll do it. I’ll knock him out.” I
               figured that I would knock Mr. Leeson out and would get
               arrested later for robbery because he’d see my face, but figured
               that was better than murder. So I walked into the living room
               with the baseball bat down by my side and I hit Mr. Leeson.
               After I hit him the first time, he stood up and so I hit him again
               and he fell back into his chair, but then he stood up again and so
               I hit him a third time and he fell back in his chair and didn’t get
               back up. He was breathing pretty heavily, but he was alive.
               Then Josh and Chris went to Mr. Leeson’s bedroom and I stood
               guard in the door, keeping an eye on Mr. Leeson with a mesh
               backpack on my back. Josh and Chris got the guns and stuff out
               of the room and put some stuff in the backpack on my back,
               including a pistol and some shells. Then I noticed that Mr.
               Leeson was bleeding pretty badly and we decided to leave. So,
               I went to the front door and locked the front door and then we
               went out the back door and I turned the knob on the back door
               and pulled it closed. 3 When we left, Mr. Leeson was still alive.
               I didn’t think he’d die.4

(footnotes added).


       2
       The petitioner’s account of what happened in Mr. Leeson’s home was given during
a diagnostic interview. He gave a similar consistent statement during his plea hearing.
       3
        Co-defendant Joshua Morgan told the police that when the three men returned to the
vehicle, the petitioner bragged about beating Mr. Leeson with a baseball bat.
       4
       Mr. Leeson’s body was not discovered until two days later when, at the request of his
daughter-in-law, law enforcement was dispatched to his home to check on him.

                                               2

                The petitioner ultimately fled to North Carolina, where, upon his arrest on

February 2, 2010, he told officers, “You might as well just kill me for what I have done.”5

The petitioner and his co-defendants were ultimately indicted for the offenses of felony

murder, conspiracy to commit burglary, and grand larceny.



                On August 5, 2010, the petitioner entered into a plea agreement with the State

in which he agreed to plead guilty to felony murder as set forth in Count Ten of the

indictment, and, upon acceptance thereof, the State agreed to dismiss the remaining counts.

The plea agreement further provided that the State would join with the petitioner “in

requesting that the Court make a recommendation of mercy[;]” that the State had made no

representations to the petitioner as to the final disposition of this matter; and that “[t]he

acceptance or rejection of this Plea Agreement and the matter of sentencing is left in the sole

discretion of the sentencing Judge.” At the conclusion of the plea hearing6 and in a

subsequent order entered August 19, 2010, the circuit court ordered a presentence

investigation report and a sixty-day diagnostic evaluation and held its acceptance of the

petitioner’s guilty plea in abeyance pending receipt of those reports.




       5
        Meanwhile, co-defendants Christopher Robey and Megan Jones were arrested for the
subject crime in San Diego, California, on November 6, 2009; the record is unclear on what
date co-defendant Joshua Morgan was arrested.
       6
           The plea hearing was conducted on August 5, 2010.

                                               3

              On August 2, 2011, the circuit court conducted a sentencing hearing during

which the petitioner and his co-defendants all appeared.7 During the course of the hearing,

the circuit court sentenced the petitioner’s co-defendants to life in prison with the

recommendation that each be eligible for parole after serving fifteen years. With regard to

the petitioner, however, the circuit court sentenced him to life in prison without the

possibility of parole. It is from the sentencing order that the petitioner now appeals.



                                  II. Standard of Review

              This case comes before this Court upon an appeal from a sentencing order. We

have previously explained that “‘[t]he 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). Further,

“‘[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. 6, State v. Slater, 222 W.Va.




       7
        At the sentencing hearing, the circuit court made reference to the fact that the guilty
pleas of the petitioner and his co-defendants to felony murder were accepted during a prior
hearing conducted on May 19, 2011. The transcript of that hearing and the circuit court’s
order resulting therefrom were not made a part of the appendix record in this appeal.

                                              4

499, 665 S.E.2d 674 (2008). With these standards in mind, we proceed to address the

petitioner’s argument.



                                       III. Discussion

              The sole issue in this appeal is whether the circuit court committed

constitutional error in imposing upon the petitioner a sentence of life in prison without the

possibility of parole. The petitioner argues that the circuit court “depart[ed] from the plea

agreement and the joint recommendation of counsel as to all co-defendants that they receive

a recommendation for eligibility for parole at sentencing[,]” and, as a result, he received a

sentence disparate to the more lenient sentences imposed upon his co-defendants for the same

crime. The petitioner further argues that the circuit court failed to make appropriate findings

in support of the petitioner’s sentence and that this matter should at least be remanded for a

new sentencing hearing. In contrast, the State contends that the circuit court considered the

appropriate factors and correctly determined that the petitioner and his co-defendants were

not similarly situated and that disparate sentences were warranted.



              This Court has previously held that

                     [d]isparate sentences for codefendants are not per se
              unconstitutional. Courts consider many factors such as each
              codefendant’s respective involvement in the criminal transaction
              (including who was the prime mover), prior records,
              rehabilitative potential (including post-arrest conduct, age and


                                              5

               maturity), and lack of remorse. If codefendants are similarly
               situated, some courts will reverse on disparity of sentence alone.

Syl. Pt. 2, State v. Buck, 173 W.Va. 243, 314 S.E.2d 406 (1984).8 The record in this case

clearly reflects that the circuit court considered the foregoing factors in its imposition of the

petitioner’s sentence. Specifically, a diagnostic (psychological) evaluation, which was

ordered by the circuit court at the conclusion of the plea hearing,9 indicated that the petitioner

               presented little remorse over the death of [Mr. Leeson], and did
               not demonstrate any fear or sadness until he was asked about
               prison. It was at that time that he broke down and stated, “I’ll
               never see my twenties outside of prison. . . . I deserve it though.”

       8
         In Buck, this Court upheld the disparate sentences imposed upon the appellant (thirty
years) and his co-defendant (one year) for aggravated robbery given that the appellant
planned the crime and struck the victim with a tire iron. 178 W.Va. at 508, 361 S.E.2d at
473. In recognizing the basis for the disparate sentence in Buck, we explained that the co­
defendant tried to prevent the appellant from seriously injuring the victim; admitted his guilt;
and testified against the appellant. Id; see also State v. Booth, 224 W.Va. 307, 315-16, 685
S.E.2d 701, 709 (2009) (finding no abuse of discretion in sentencing appellant to eighty years
for first degree robbery as compared to three co-defendants’ sentences of fifty, one, and five
years, respectively, given that appellant “actively pursued the plan to prey on the elderly to
steal money[;]” “attempted to obtain access, on at least three occasions, to [one of the
victim’s] home[s][;]” and “pulled on [the] purse [of the second victim] causing her to fall and
resulting in her significant injuries.” Additionally, these actions occurred while appellant
“was free on bond for the alleged commission of another felony[,] [and] [h]is post-arrest
conduct for his previous charges clearly evidences a lack of desire to change or receive
help.”); State v Damron, 213 W.Va. 8, 16, 576 S.E.2d 253, 261 (2002) (concluding that
appellant’s sentences of one to fifteen years for burglary and one year for petit larceny was
not disproportionate to State’s decision not to prosecute co-defendant because appellant was
also serving federal sentence; facing charges in another county; instigated crimes at issue;
and threatened to fire co-defendant, who was appellant’s employee, if he did not participate
in crimes.).
       9
        As indicated above, the circuit court held in abeyance its acceptance of the
petitioner’s guilty plea pending receipt of the presentence investigation report and the sixty-
day diagnostic evaluation.

                                                6

                 His personality profile is consistent with an anti-social
                 personality disorder.


The court-ordered diagnostic evaluation further indicated that

                 the likelihood of future recidivism is considered high. Factors
                 contributing to recidivism risk include prior legal history,10
                 impulsivity, age,11 and lack of empathy and maturity. Factors
                 that mitigate his risk of future recidivism include
                 intelligence/cognitive skills, employability,12 and lack of
                 substance abuse13. . . . His behavior in the commission of this
                 murder is purported to be the result of impulsivity and lack of
                 forethought, however the circumstances of his actions indicate
                 multiple opportunities to have made different decisions, any of
                 which would have altered the outcome of this situation and
                 likely prevented the death of Mr. Leeson.

(footnotes added). Most importantly, the fact that it was the petitioner who actually killed

Mr. Leeson weighed heavily in the circuit court’s decision to sentence him to life in prison




       10
        According to the presentence investigation report, the petitioner’s prior criminal
record includes a shoplifting conviction in 2009. He was also previously arrested for
possession of marijuana, but the record is unclear whether he was convicted for that offense.
The record further indicates that the petitioner was arrested in 2007 for breaking and
entering, which charge was dismissed.
       11
            The petitioner was eighteen years old at the time he committed Mr. Leeson’s murder.
       12
        The petitioner completed school through the ninth grade and later obtained his GED;
he held various jobs from April 2008 until the time of the murder.
       13
        The presentence investigation report indicated that the petitioner admitted to
regularly using marijuana from age sixteen to eighteen, but denied abusing any other illicit
drugs and further denied abusing alcohol.

                                                7

without mercy; indeed, during the sentencing hearing, the circuit court reasoned that “you’re

the one who swung the bat, not once, not twice, but three times.”14



              Without hesitation, this Court concludes that the petitioner’s admitted role in

the callous and brutal murder of Mr. Leeson clearly justified a sentence disparate from his

co-defendants. The petitioner mercilessly beat his unsuspecting victim with a baseball bat

and then locked the doors to the victim’s home so that aid could not easily be rendered.15

Furthermore, the record before the circuit court demonstrated that the petitioner showed little

remorse for Mr. Leeson’s death and, in fact, bragged to his co-defendants about what he had

done. Although the petitioner’s prior criminal record did not involve violent crimes, it was

determined that “the likelihood of future recidivism is considered high.” Given all of the

above, we conclude that the circuit court did not abuse its discretion in imposing a harsher

sentence upon the petitioner than upon his co-defendants. See Buck, 178 W.Va. at 508, 361

S.E.2d at 473. Likewise, we find no merit to the petitioner’s contention that the circuit court

failed to make appropriate findings to support the sentence imposed.




       14
         In sentencing the petitioner’s co-defendants to life with the recommendation of
parole, the circuit court also stated that “there will be a note put in [each of] your files that
the Court does not feel that each of you deserve to get out at the end of 15 years.”
       15
        When the victim’s daughter-in-law enlisted the assistance of law enforcement to
check on his welfare two days after the murder, they had to force their way into the home.

                                               8

                                      IV. Conclusion

             Based upon the foregoing, the October 16, 2012, order of the Circuit Court of

Harrison County is hereby affirmed.

                                                                               Affirmed.




                                            9

