                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS



State of West Virginia,

Plaintiff Below, Respondent                                                    FILED

                                                                          February 21, 2017
vs) No. 15-1221 (Berkeley County 14-F-226)                                    RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
William P. Allen,                                                               OF WEST VIRGINIA

Defendant Below, Petitioner


                                 MEMORANDUM DECISION

        Petitioner William P. Allen, by counsel Matthew T. Yanni, appeals the Circuit Court of
Berkeley County’s December 11, 2015, order denying his motion to correct illegal sentence
made pursuant to Rule 35(a) of the West Virginia Rules of Criminal Procedure. Respondent, by
counsel Cheryl K. Saville, filed a response. On appeal, petitioner alleges that the circuit court
erred in denying his motion on the grounds that respondent violated the plea agreement between
the parties.

        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 October of 2014, a Berkeley County grand jury indicted petitioner on one count of
grand larceny. Thereafter, in March of 2015, petitioner entered into a plea agreement with
respondent wherein petitioner pled guilty to the single count of grand larceny contained in the
indictment. As a part of his guilty plea, petitioner admitted selling various items of property
without express permission from the house in which he was living. Also pursuant to the plea
agreement, respondent agreed not to make any sentencing recommendations to the circuit court.
The circuit court accepted the parties’ plea agreement and ordered a presentence investigation
prior to sentencing.

        In July of 2015, the circuit court held a sentencing hearing. Respondent requested that
one of the victims be allowed to make a victim impact statement. The circuit court approved the
request. The victim read her statement and asked that the circuit court grant her “protection and
justice.” The circuit court asked the victim a series of questions and in response to those
questions she stated that petitioner should “be in prison.” At the close of the sentencing hearing,
petitioner was sentenced to a term of incarceration of not less than one nor more than ten years in
the penitentiary. The circuit court also ordered that he pay restitution to the victims and the cost
of the proceedings. The circuit court further granted petitioner’s request to delay being taken into

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custody until the following day and ordered that he self-report to the Eastern Regional Jail.
Petitioner thereafter failed to appear, and a capias for his arrest was issued. Subsequently,
petitioner surrendered himself to the Eastern Regional Jail on July 13, 2015.

        In July of 2015, petitioner filed pro se motions requesting that the circuit court stay the
execution of his sentence, that he be granted post-conviction bail, and the circuit court reconsider
his sentence. The circuit court denied petitioner’s motions.

        In November of 2015, petitioner filed a motion to correct his sentence on the ground that
it was imposed in an illegal manner. Respondent filed a response. The circuit court denied
petitioner’s motion by order dated December 11, 2015.1 It is from this order that petitioner now
appeals.

       We have previously held as follows:

                “In reviewing the findings of fact and conclusions of law of a circuit court
       concerning an order on a motion made under Rule 35 of the West Virginia Rules
       of Criminal Procedure, we apply a three-pronged standard of review. We review
       the decision on the Rule 35 motion under an abuse of discretion standard; the
       underlying facts are reviewed under a clearly erroneous standard; and questions of
       law and interpretations of statutes and rules are subject to a de novo review.” Syl.
       Pt. 1, State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).


Syl., State v. Allen, 224 W.Va. 444, 686 S.E.2d 226 (2009). Petitioner argues that respondent
violated the plea agreement when it called one of the victims as a witness in order for her to
make a sentencing recommendation on respondent’s behalf. According to petitioner, the victim’s
statement that petitioner should be in jail was a sentencing recommendation that respondent
agreed not to make to the circuit court.

        Based upon a review of the record, it is clear that petitioner’s sentence was imposed in a
legal manner and in accordance with the parties’ plea agreement. We have previously 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). The sentence imposed upon petitioner was within the
statutory limits.2 Furthermore, the record is devoid of any evidence that petitioner’s sentence was
       1
         Petitioner also filed a pro se petition for writ of habeas corpus to which respondent
opposed as premature because of petitioner’s current appeal pending before this Court. As such,
this issue is not before this Court.
       2
           According to West Virginia Code § 61-3-13(a)

               If a person commits simple larceny of goods or chattels of the value of one
       thousand dollars or more, such person is guilty of a felony, designated grand
       larceny, and, upon conviction thereof, shall be imprisoned in the penitentiary not
       less than one nor more than ten years, or, in the discretion of (continued . . . )
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based upon any impermissible factor. See Syl. Pt. 10, State v. Payne, 225 W.Va. 602, 694 S.E.2d
935 (2010).

        Although petitioner argues that respondent violated the plea agreement by calling one of
the victims to testify, a plain reading of the parties’ plea agreement shows that it did not preclude
the victims from submitting a victim impact statement or speaking to the circuit court. Following
petitioner’s allocution at the sentencing hearing, the victim made a statement on behalf of herself
and her husband. She described details of petitioner’s crimes and then spoke to the financial and
emotional impact his crimes had on her and her family. The circuit court then inquired as to the
victim’s position regarding petitioner’s punishment, and the victim responded to the circuit
court’s questions. Thus, because the plea agreement specifically provided for the victim in this
case to address the circuit court and make a victim impact statement, respondent did not violate
the plea agreement between the parties.3

       Petitioner also argues that the victim did not notify the circuit court that she wished to
make a victim impact statement and waived her right to do so under the statute. West Virginia
Code § 61-11A-2(c) provides that

       [w]ithin a reasonable time prior to the imposition of sentence upon the defendant,
       the prosecuting attorney or assistant prosecuting attorney in charge of the case
       shall make reasonable efforts, in writing, to advise the person who was the victim
       of the crime, . . . . The writing will provide the date, time and place of the original
       sentencing hearing and of the victim’s right to submit a written or oral statement
       to the sentencing court.

We observe that the statute does not require any participation form or timeframe that the victim
should utilize to notify the circuit court that he or she wishes to make a victim impact statement.
In the case at hand, the victim was notified of the sentencing hearing, appeared at the sentencing
hearing, notified the circuit court that she wished to make a statement, and made her victim
impact statement all in accordance with West Virginia Code § 61-11A-2(c). Thus, petitioner’s
argument that the victim waived her right to make a statement at the sentencing hearing is
without merit.

        Finally, petitioner argues that the victim should not have been allowed to make a victim
impact statement at the sentencing hearing because she had already made a statement to
petitioner’s probation officer, who included the statement in the presentence investigation report
pursuant to West Virginia Code §61-11A-3. West Virginia Code § 61-11A-3(b) states that


       the court, be confined in jail not more than one year and shall be fined not more
       than two thousand five hundred dollars.
       3
         Petitioner pled guilty to a felony and the victim appeared before the circuit court to make
a victim impact statement. See W. Va. Code § 61-11A-2(b) (providing that “[p]rior to the
imposition of sentence upon a defendant who has been found guilty of a felony . . . the court
shall permit the victim of the crime to appear before the court to make an oral statement for the
record . . . .”)
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       [t]he victim impact statement shall be prepared by the probation officer and shall
       include the identity of the victim, an itemization of any economic loss suffered by
       the victim as a result of the offense, a description of the nature and extent of any
       physical or psychological injury suffered by the victim as a result of the offense,
       the details of any change in the victim’s personal welfare, lifestyle or family
       relationships as a result of the offense, whether there has been any request for
       psychological or medical services initiated by the victim or the victim’s family as
       a result of the offense and such other information related to the impact of the
       offense upon the victim as may be required by the court.

        However, West Virginia Code § 61-11A-2(d) specifically states that the “oral or written
statement given or submitted by a victim in accordance with the provisions of this section is in
addition to and not in lieu of the victim impact statement required by the provisions of section
three of this article.” Thus, petitioner’s argument that the victim impact statement was somehow
duplicative or cumulative is without merit.

        For the foregoing reasons, the circuit court’s December 11, 2015, order denying
petitioner’s Rule 35(a) motion is hereby affirmed.


                                                                                        Affirmed.

ISSUED: February 21, 2017

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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