                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

State of West Virginia,
Plaintiff Below, Respondent                                                             FILED
                                                                                   September 6, 2016
vs) No. 15-1185 (Ritchie County 15-F-2)                                                RORY L. PERRY II, CLERK
                                                                                     SUPREME COURT OF APPEALS
                                                                                         OF WEST VIRGINIA
Melinda Helmick,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
       Petitioner Melinda Helmick, by counsel Robin S. Bonovitch, appeals the Circuit Court of
Ritchie County’s November 19, 2015, order sentencing her to a term of incarceration of one to
ten years following her guilty plea to one count of child neglect resulting in serious bodily injury.
The State, by counsel Jonathan E. Porter, filed a response. On appeal, petitioner alleges that her
sentence is unconstitutional because it is more severe than expected and disproportionate to the
character and degree of the crime.

        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.

       During the January of 2015 term of court, petitioner was indicted on one count of child
neglect resulting in serious bodily injury, one count of child neglect resulting in bodily injury,
and one count of driving under the influence of a controlled substance causing bodily injury.

        Following a non-binding plea agreement between the parties, petitioner entered a guilty
plea to one count of child neglect resulting in serious bodily injury in August of 2015, and the
State dismissed the remaining charges. Thereafter, in September of 2015, petitioner’s probation
officer moved to revoke her bond after petitioner tested positive for benzodiazepines and failed
to provide the officer with a valid prescription. Petitioner also admitted to consuming other
controlled substances without a valid prescription. Additionally, the probation officer obtained
evidence that petitioner attempted to flush her system in order to avoid detection during her drug
screen. Moreover, the probation officer also obtained evidence of petitioner’s involvement in
recent drug transactions.

        In October of 2015, the circuit court held a sentencing hearing, during which it denied
petitioner’s motion for alternative sentencing. Ultimately, the circuit court sentenced petitioner to
a term of incarceration of one to ten years. It is from the sentencing order that petitioner appeals.

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        We have previously held 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.’ Syllabus Point 1, in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d
221 (1997).” Moreover, we have 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.’ Syllabus point 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).” Syl. Pt.
2, State v. Booth, 224 W.Va. 307, 685 S.E.2d 701 (2009).

        On appeal to this Court, petitioner does not allege that her sentence exceeds the bounds of
the applicable statute. On the contrary, the record clearly shows that petitioner was sentenced
within the applicable statutory limits, as West Virginia Code § 61-8D-4(b) provides that any
person found guilty of child neglect resulting in serious bodily injury “shall be . . . imprisoned in
a state correctional facility for not less than one nor more than ten years . . . .” Moreover,
petitioner does not allege that the circuit court based this sentence on any impermissible factor.
Instead, petitioner argues only that the circuit court abused its discretion in denying her request
for alternative sentencing. Simply put, this does not constitute an impermissible factor that would
entitle petitioner to appellate review. Further, we have held that “‘[p]robation is a matter of grace
and not a matter of right.’ Syllabus Point 1, State v. Rose, 156 W.Va. 342, 192 S.E.2d 884
(1972).” Syl. Pt. 3, State v. Jones, 216 W.Va. 666, 610 S.E.2d 1 (2004). Accordingly, we find no
abuse of discretion in the circuit court denying petitioner’s motion for alternative sentencing and,
similarly, we find no error in the circuit court’s sentence.

       For the foregoing reasons, the circuit court’s November 19, 2015, sentencing order is
hereby affirmed.


                                                                                          Affirmed.

ISSUED: September 6, 2016

CONCURRED IN BY:

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




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