                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


State of West Virginia,                                                              FILED
Plaintiff Below, Respondent                                                      March 13, 2020
                                                                                EDYTHE NASH GAISER, CLERK
vs.) No. 18-0606 (Hardy County 17-F-23)                                         SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA


Brandon S.,
Defendant Below, Petitioner



                               MEMORANDUM DECISION


        Petitioner Brandon S., by counsel William T. Rice, appeals the Circuit Court of Hardy
County’s June 10, 2018, order sentencing him to an effective term of not less than twenty nor more
than forty years of incarceration following the entry of his guilty plea to two counts of sexual abuse
by a custodian.1 The State of West Virginia, by counsel Mary Beth Niday, filed a response. On
appeal, petitioner argues that the circuit court erred in sentencing him to consecutive, rather than
concurrent, prison 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.

        In June of 2017, a Hardy County Grand Jury returned a thirteen-count indictment against
petitioner, charging him with four counts of incest, four counts of sexual abuse by a custodian,
four counts of third-degree sexual assault, and one count of obstructing a law enforcement officer.

        Petitioner entered into a plea agreement on August 31, 2017, whereby he agreed to plead
guilty to two counts of sexual abuse by a custodian in exchange for the State’s agreement to dismiss

       1
         Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W.
Va. 641, 398 S.E.2d 123 (1990).

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the remaining charges in the indictment and to refrain from filing a recidivist information against
petitioner.2 The agreement specified that the parties would be free to “make any and all further
recommendations” at sentencing.

        Petitioner’s initial sentencing hearing was held on December 18, 2018. Counsel for
petitioner argued that the circuit court should sentence petitioner to concurrent, rather than
consecutive, sentences. In support, counsel noted that petitioner had been in a severe car crash in
1999 that resulted in a brain injury and ultimately led to his alcohol abuse. Counsel also noted that
petitioner suffered from an optical neuropathy condition, which would result in the complete loss
of his eyesight prior to his release if the court were to sentence him to consecutive sentences.
Further, counsel advised the circuit court that petitioner had been the victim of incest when he was
a child. Petitioner exercised his right to allocution and noted that he was remorseful for his actions.

        The victim’s mother read her own victim impact statement, as well as the impact statement
of the victim’s father who could not attend the hearing. The victim’s grandmother also read her
victim impact statement. All three requested that petitioner be sentenced to consecutive sentences.
The victim’s statement was also read into the record. The statement read, in part, as follows:

         you hurt my family so many times that you’re a jerk for so much tragedy that you
         put my family though. I hope you have more time for your sentence [for what] you
         have done to me and my brother. I hope you rot in hell and I mean that from deep
         down in my heart. I never want to see you or talk to you ever again. Since I have
         been though therapy I know now what you did to me was wrong. You have hurt me
         physically and messed up my mind. I hate you very much.

         The State requested that the circuit court sentence petitioner to consecutive sentences. The
State noted that “[t]his is his third felony conviction which could have resulted in him receiving
life in the penitentiary.” The State argued that petitioner “deserves a life sentence” and that he is
“not safe to be around any children ever.” Following the State’s recommendation, the circuit court
ordered that petitioner undergo a sexual offender evaluation for the sole purpose of determining
whether his sentences should run consecutively or concurrently. As such, the sentencing hearing
was continued.

        The circuit court reconvened the sentencing hearing in May of 2018. Counsel for petitioner
advised the court that the sexual offender evaluation “didn’t come out particularly well,” but noted
that the report did not indicate that petitioner was at high risk of reoffending. Rather, the report
indicated that petitioner was only at moderate risk of reoffending. Counsel also noted that the
report indicated no sociopathic tendencies. Counsel for petitioner again argued that petitioner
should be sentenced to concurrent sentences. The State advised the circuit court that petitioner’s
sexual offender evaluation was “extremely poor.” Negative factors noted by the report included
that petitioner abused two victims; that his abuse increased in force and coercion; that he suffered
from chronic alcohol abuse which lowers control; that he had a prior head injury, which may
increase impulsive behavior; that he failed to accept full responsibility for his actions; that he


         2
             Petitioner appears to have been previously convicted of arson and first-degree sexual
abuse.
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expressed little guilt or remorse; that he was a pedophile; and that he was not amenable to sex
offender treatment. As such, the State requested that the circuit court sentence petitioner to
consecutive sentences.

        Ultimately, the circuit court sentenced petitioner to consecutive sentences of not less than
ten nor more than twenty years of incarceration for each count of sexual abuse by a custodian. In
reaching its decision, the circuit court noted that the matters surrounding the conviction painted “a
horrible picture.” While the circuit court had no doubt that petitioner’s victimization as a child, as
well as his alcohol abuse, contributed to the situation, it found that petitioner ultimately chose to
abuse the child. Moreover, according to the sexual offender evaluation, the strongest predictor of
future sex offending is psychopathic or anti-social personality disorder, and petitioner was
determined to be nearing the sixtieth percentile in that category, in addition to exhibiting deviant
behavior. For those reasons, the circuit court ordered consecutive, rather than concurrent,
sentences. Petitioner’s sentences were memorialized in the circuit court’s June 10, 2018,
sentencing order, and it is from this order that he appeals.

        This Court 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. Adams,
211 W. Va. 231, 565 S.E.2d 353 (2002) (citation omitted). We have also 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.” Syl. Pt. 4, State v. Goodnight, 169 W. Va. 366, 287
S.E.2d 504 (1982).

       In this case, petitioner was convicted of two counts of sexual abuse by a custodian. West
Virginia Code § 61-8D-5(a) states, in part, that if

       any parent, guardian or custodian of or other person in a position of trust in relation
       to a child under his or her care, custody or control, shall engage in or attempt to
       engage in sexual exploitation of, or in sexual intercourse, sexual intrusion or sexual
       contact with, a child under his or her care, custody or control, . . . then such parent,
       guardian, custodian or person in a position of trust shall be guilty of a felony and,
       upon conviction thereof, shall be imprisoned in a correctional facility not less than
       ten nor more than twenty years, or fined not less than $500 nor more than $5,000
       and imprisoned in a correctional facility not less than ten years nor more than
       twenty years.

Moreover,

               “‘“[w]hen a defendant has been convicted of two separate crimes, before
       sentence is pronounced for either, the trial court may, in its discretion, provide that
       the sentences run concurrently, and unless it does so provide, the sentences will run
       consecutively.” Syllabus point 3, Keith v. Leverette, 163 W.Va. 98, 254 S.E.2d 700
       (1979).’ Syllabus Point 3, State v. Allen, 208 W.Va. 144, 539 S.E.2d 87 (1999).”
       Syl. Pt. 7, State ex rel. Farmer v. McBride, 224 W.Va. 469, 686 S.E.2d 609 (2009).

Syl. Pt. 4, State v. Marcum, 238 W. Va. 26, 792 S.E.2d 37 (2016).


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        It is clear from the record on appeal that petitioner’s consecutive prison terms of ten to
twenty years for two counts of sexual abuse by a custodian are within statutory limits. As noted
above, the circuit court was within its discretion to run those sentences consecutively. In fact, the
circuit court considered numerous factors in deciding to sentence petitioner to consecutive, rather
than concurrent, sentences. The circuit court heavily relied on the sexual offender evaluation,
which indicated that petitioner was nearing the sixtieth percentile for psychopathic or anti-social
personality disorder, which is the strongest predictor of future sex offending, and that petitioner
was exhibiting deviant behavior. Based on these factors, the circuit court determined that
consecutive sentences were appropriate.

         Further, petitioner does not argue that his sentence is based on any impermissible factor.
Instead, petitioner claims that his sentence is excessive and disproportionate to his “non-violent”
crimes. Petitioner’s argument ignores our holding on the applicability of constitutional
proportionality standards: “While our constitutional proportionality standards theoretically can
apply to any criminal sentence, they are basically applicable to those sentences where there is
either no fixed maximum set by statute or where there is a life recidivist sentence.” Syl. Pt. 4,
Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981). The crimes for which
petitioner was sentenced have a fixed statutory maximum set by statute and there was no life
recidivism sentence imposed in this case. Because we conclude that petitioner’s sentences were
within the maximum statutory limit and not based on any impermissible factor, we find that
petitioner’s claims regarding the proportionality of his sentences are not reviewable on appeal.

       For the foregoing reasons, the circuit court’s June 10, 2018, sentencing order is hereby
affirmed.

                                                                                          Affirmed.

ISSUED: March 13, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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