                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,                                                                FILED
Plaintiff Below, Respondent                                                          January 14, 2013
                                                                                  RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
vs.) No. 11-1324 (Berkeley County 07-F-124)                                         OF WEST VIRGINIA



Jason Rea,

Defendant Below, Petitioner



                                 MEMORANDUM DECISION

       Petitioner’s appeal, by counsel Christopher J. Prezioso, arises from the Circuit Court of
Berkeley County, wherein he was re-sentenced by order entered on August 23, 2011. The State,
by counsel Cheryl K. Saville, has filed its response.

       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 is appropriate under Rule 21 of the Revised Rules of Appellate
Procedure.

        This case arises from an altercation between petitioner and another man that resulted in
petitioner stabbing the man. He also stabbed the man’s grandmother who attempted to intervene
in the altercation. Petitioner was indicted on six charges, and pled guilty to one count of attempted
first degree murder pursuant to West Virginia Code §§ 61-2-1 and 61-11-8, two counts of
malicious wounding pursuant to West Virginia Code § 61-2-9(a), and one count of burglary
pursuant to West Virginia Code § 61-3-11(a). He also pled no contest to one count of burglary
and one count of attempted first degree murder. Prior to sentencing, petitioner underwent a
presentencing evaluation in which the evaluator concluded that petitioner was at low risk to
reoffend. Petitioner was sentenced to terms of incarceration as follows: three to fifteen years on
each of two counts of attempted first degree murder, two to ten years on each of two counts of
malicious assault, and one to fifteen years on each of two counts of burglary, all to be served
consecutively. Petitioner then moved for resentencing for purposes of filing this appeal, and this
motion was granted.

        Petitioner argues that the circuit court erred in sentencing him to the maximum sentence
allowed by law because petitioner had no prior criminal convictions and he pled guilty without
the assistance of a plea agreement. Further, he was found to be at low risk to reoffend, and the
State actually recommended a lesser sentence. Petitioner also argues that this Court should
reconsider its previous rulings regarding appellate review of sentences, as a trial court may
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commit error even when a sentence is within statutory limits. The State argues in favor of the
sentencing order, stating that the sentences herein do not “shock the conscience” and that the
circuit court did not abuse its discretion.

        “‘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). 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.’ 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).

        Upon our review, we find no abuse of discretion by the circuit court in sentencing
petitioner to a total of twelve to eighty years following his guilty and no contest pleas. The
sentences imposed were within statutory limits and were not based on an impermissible factor.
Therefore, the Court finds no error and sees no reason under the facts of this case to overturn
well-established precedent regarding the review of sentencing orders.

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



                                                                                         Affirmed.

ISSUED: January 14, 2013

CONCURRED IN BY:

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




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