                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent
                                                                                  FILED
                                                                              February 21, 2017
vs) No. 16-0355 (Jackson County 08-F-39 & 08-F-87)                               RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
Zachary Thomas,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner Zachary Thomas, by counsel Kevin B. Postalwait, appeals the Circuit Court of
Jackson County’s May 8, 2016, order revoking petitioner’s probation and sentencing him to
consecutive terms of incarceration that are to be served consecutively to any sentence imposed
upon petitioner from another criminal proceeding in Kanawha County. The State of West
Virginia, by counsel Julie Warren, filed a response. On appeal, petitioner argues that the circuit
court erred in sentencing him to consecutive sentences.

        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.

        On June 25, 2008, the Jackson County grand jury indicted petitioner on one felony count
of entering a dwelling without breaking, in violation of West Virginia Code § 61-3-11. In
November of 2008, the Jackson County grand jury also indicted petitioner on one count of first-
degree robbery, in violation of West Virginia Code § 61-2-12; two counts of conspiracy, in
violation of West Virginia Code § 61-10-31; one count of breaking and entering other than a
dwelling, in violation of West Virginia § 61-3-12; and two counts of petit larceny, in violation of
West Virginia Code § 61-3-13.

        The following year, petitioner pled guilty to one count of entering a dwelling without
breaking; second-degree robbery, a lesser-included offense; breaking and entering other than a
dwelling. In October of 2009, the circuit court suspended petitioner’s sentence for second-degree
robbery and breaking and entering other than a dwelling and placed petitioner in the Anthony
Correctional Center for six months to two years.1 Two months later, the circuit court sentenced
petitioner to three years of probation for the offense of entering a dwelling without breaking.


       1
           The remaining charges were dismissed.
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Thereafter, the State filed a motion to revoke petitioner’s probation for willfully and deliberately
violating the terms of his probation.

        In November of 2015, the circuit court held a hearing on the State’s motion to revoke
petitioner’s probation during which petitioner did not contest the allegations as set forth in the
State’s motion. By order entered on January, 26, 2016, the circuit court revoked petitioner’s
probation and scheduled a sentencing hearing. In February of 2016, the circuit court held a
sentencing hearing during which counsel proffered that petitioner had committed crimes in
additional counties, including assault during the commission of a felony. Petitioner’s “Level of
Service/Case Management Inventory” evaluation was submitted as evidence and indicated that
petitioner “has a very high criminogenic needs [and] a very high risk of recidivism.” By order
entered on March 8, 2016, the circuit court sentenced petitioner to a term of incarceration of one
to ten years for entering a dwelling without breaking, five to eighteen years of incarceration for
second-degree robbery, and one to ten years of incarceration for breaking and entering other than
dwelling. The circuit court ordered these sentences to be served consecutively to one another and
consecutive to any sentence in Kanawha County. This appeal followed

         On appeal, petitioner argues that the circuit court abused its discretion in sentencing him
to consecutive sentences. “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). 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.” Syl. Pt. 4, State v. Goodnight, 169
W. Va. 366, 287 S.E.2d 504 (1982). We note that petitioner’s sentences for his crimes are within
the applicable statutory limitations. Specifically, West Virginia Code § 61-3-11 states that any
person guilty of entering a dwelling house without breaking “shall be confined in the penitentiary
not less than one nor more than ten years.” Similarly, West Virginia Code § 61-2-12 states that
any person who commits robbery by placing the victim in fear “shall be confined in a corrections
facility for not less than five years nor more than eighteen years.” Finally, West Virginia Code §
61-3-12 states that any person guilty of breaking and entering a building other than a dwelling
“shall be confined in a state correctional facility not less than one nor more than ten years.”
Furthermore, petitioner made no claims and offered no evidence to establish that his sentences
were based upon any impermissible factors. Finally, pursuant to West Virginia Code § 61-11-21,
sentences for two or more convictions shall be consecutive unless the sentencing court orders
them to run concurrently. Accordingly, it was within the Circuit Court of Jackson County’s
discretion to run petitioner’s sentences consecutive to any other sentence.

       For the foregoing reasons, we affirm.


                                                                                         Affirmed.


ISSUED: February 21, 2017




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CONCURRED IN BY:

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




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