                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



State of West Virginia,

                                                                                   FILED
Plaintiff Below, Respondent                                                  November 3, 2014

                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
vs) No. 14-0265 (Berkeley County 11-F-241)                                      OF WEST VIRGINIA


Joshua L. Stitley,

Defendant Below, Petitioner



                              MEMORANDUM DECISION
         Petitioner Joshua L. Stitley, by counsel S. Andrew Arnold, appeals the order of the
Circuit Court of Berkeley County, entered January 31, 2014, that sentenced him to prison
following his conviction by guilty plea of felony murder, robbery in the first degree, attempted
murder, and malicious assault. Respondent State of West Virginia, by counsel Cheryl Saville,
filed a response in support of the circuit court’s order. Petitioner appeals his sentences for felony
murder and robbery in the first degree on the ground that they were harsher than the sentences
imposed upon his codefendant for the same two crimes.

        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 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.

        Late on the evening of May 26, 2011, petitioner and his codefendant, Roy Wisotzkey,
traveled to the home of petitioner’s stepfather and mother, Jack and Vickie Clem, with the intent
to commit burglary. The men were armed with a knife and the codefendant’s baseball bat and
decorative sword. The men entered the home without permission where they were confronted by
Mr. Clem. During the confrontation, petitioner struck Mr. Clem on the head with the baseball bat
and then stabbed him in the groin with the knife. Mr. Clem fell into a bathroom where he shut
and barricaded the door. While petitioner was fighting with Mr. Clem, his codefendant struck
Mrs. Clem on the head with the baseball bat. One or both men then followed Mrs. Clem into her
bedroom where she was struck on the head with the baseball bat at least seven more times and
stabbed twice in the chest. Mrs. Clem died that night as a result of her injuries.

       Following the attack, petitioner and his codefendant remained in the Clems’s residence
and consumed drugs and alcohol. At one point, petitioner left the home to withdraw money from
Mrs. Clem’s bank account using her ATM card; he then returned to the Clems’s home.
Eventually, both men fell asleep in the home’s living room. While they slept, Mr. Clem escaped
from his home. Early the next morning, petitioner and the codefendant awoke, removed various


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objects of the Clems’s personal property from the house, and fled the scene. However, they were
soon apprehended by law enforcement.

        On October 20, 2011, petitioner and his codefendant were jointly indicted for the
following crimes: Count 1, murder in violation of West Virginia Code § 61-2-1 (Mrs. Clem);
Count 2, felony murder in violation of West Virginia Code § 61-2-1 (the underlying crime was
the commission/attempt to commit robbery); Count 3, robbery in the first degree in violation of
West Virginia Code § 61-2-12(a) (Mrs. Clem); Court 4, robbery in the first degree in violation of
West Virginia Code § 61-2-12(a) (Mr. Clem); Count 5, conspiracy to commit robbery in
violation of West Virginia Code § 61-10-31; Count 6, burglary in violation of West Virginia
Code § 61-3-11(a); Count 7, attempted murder in violation of West Virginia Code § 61-11-8
(Mr. Clem); Count 8, malicious assault in violation of West Virginia Code § 61-2-9(a) (Mr.
Clem); Count 9, assault during the commission of a felony in violation of West Virginia Code §
61-2-10 (Mr. Clem); and Count Ten, assault during the commission of a felony in violation of
West Virginia Code § 61-2-10 (Mrs. Clem). Additionally, petitioner was individually indicted on
one count of fleeing in a vehicle while DUI from a law enforcement officer in violation of West
Virginia Code § 61-5-17(j), and one count of fraudulent use of an access device in violation of
West Virginia Code § 61-3C-13(c).

       At a July 20, 2013, pre-trial hearing, the trial court granted petitioner and the
codefendant’s motion to sever their trials. The State elected to try the codefendant first.

         The codefendant’s trial began on July 31, 2013. On August 7, 2013, the jury found the
codefendant guilty of felony murder based on the underlying robbery of Mrs. Clem; robbery in
the first degree of Mr. Clem; conspiracy to commit robbery; and burglary. The codefendant was
thereafter sentenced to life in prison with the possibility of parole for felony murder and fifty
years in prison for robbery in the first degree. The trial court ordered that those sentences be
served concurrently. The codefendant was also sentenced to not less than one nor more than
fifteen years in the prison for his burglary conviction and not less than one nor more than five
years in prison for his felony conspiracy conviction. The sentences for burglary and felony
conspiracy were to run concurrently with one another, but consecutive to the sentences for felony
murder and robbery.

        On October 21, 2013, petitioner pled guilty to felony murder, robbery in the first degree,
attempted murder, and malicious assault. In exchange for his guilty plea, the State dismissed the
remaining counts of the indictment and made the following recommendations in regard to
sentencing: life in prison with the possibility of parole for the felony murder conviction, fifty
years in prison for the robbery in the first degree conviction, not less than three nor more than
fifteen years in prison on the attempted murder count, and not less than two nor more than ten
years in prison on the malicious assault count. The State also suggested that all four sentences
run consecutively.

       By order entered January 31, 2013, the trial court sentenced petitioner to sixty years in
prison on the robbery in the first degree count, as opposed to the fifty years recommended by the
State and imposed upon petitioner’s codefendant for the same crime. Second, the trial court
ordered that petitioner’s sentence for felony murder and robbery in the first degree run

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consecutively, instead of concurrently as the circuit court imposed upon petitioner’s codefendant
for the same crimes.

       Petitioner now appeals the trial court’s January 31, 2013, sentencing order.

         “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). “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.” Syl. Pt. 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).

        Petitioner’s sole assignment of error on appeal is that the circuit court abused its
discretion when it imposed a harsher sentence upon petitioner for his conviction for felony
murder and robbery in the first degree than it imposed upon his codefendant for the same crimes.
Petitioner argues that he and his codefendant were similarly situated and equally culpable
because both men conspired to commit the crimes, both entered the home with the intent to rob
the victims, and both participated in the physical assaults. Petitioner also points out that while his
codefendant refused to accept responsibility for the crimes and proceeded to trial, he expressed
great remorse over the death of his mother and chose to plead guilty rather than have his family
suffer through further criminal proceedings.

       In his brief on appeal, petitioner concedes that the circuit court imposed sentences that
were within statutory limits and not based upon impermissible factors. Further, petitioner does
not argue that his sentence was disproportionate to his crimes, but instead avers that his sentence
was disparate to that of his codefendant. In regard to disparate sentences, we have said,

       [d]isparate sentences for codefendants are not per se unconstitutional. Courts
       consider many factors such as each codefendant’s respective involvement in the
       criminal transactions (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).

        The record on appeal in this case demonstrates that petitioner and his codefendant were
not similarly situated with regard to the crimes committed. Here, petitioner instigated and
planned the crimes; the victims were his mother and stepfather; petitioner recruited the
codefendant for the crimes because the codefendant was large and imposing; petitioner drove the
codefendant to the Clems’s home; petitioner struck his step-father in the head with a baseball bat
and stabbed him in the groin with a knife; petitioner urged the codefendant to “help him” with
the attack; petitioner either participated in, or failed to stop, the murder of his mother; petitioner
stole money and credit cards from the victims and withdrew money from his mother’s bank
account using her bank card; and, petitioner thereafter returned to the home and consumed

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alcohol and drugs while his mother lay dead in her bedroom and his stepfather was trapped in the
bathroom bleeding from the knife wound.

        Based on this record and in light of our holding in Buck, we do not find that the circuit
court erred in its sentencing of petitioner because petitioner and his codefendant were not
similarly situated with regard to the crimes at issue in this appeal.

       For the foregoing reasons, we affirm.
                                                                                       Affirmed.

ISSUED: November 3, 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




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