                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                      FILED
                                                                            February 26, 2016
vs) No. 15-0200 (Harrison County 14-F-33-2)                                    RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
John J. Jones, III
Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner John J. Jones, by counsel Rocco E. Mazzei, appeals the sentencing order of the
Circuit Court of Harrison County sentencing him to three consecutive sentences, resulting in a
minimum term of incarceration of three years and maximum term of thirty-three years. The order
also imposed a fine of $25,000.00. Respondent State of West Virginia, by counsel Shannon
Frederick Kiser, filed a 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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        On August 13, 2008, petitioner was arrested by the Harrison County Street Crimes and
Drug Unit. Petitioner was charged with three counts of delivery of a controlled substance. On
October 4, 2013, petitioner was arrested by the Harrison County Narcotics Task Force and
charged with four counts of delivery of a controlled substance. In the January 2014 Term of
Court, petitioner was indicted in a seven count indictment that charged petitioner with five
counts of delivery of a controlled substance; and two counts of delivery of a controlled substance
within one thousand feet of a school. On August 12, 2014, pursuant to a plea agreement,
petitioner entered a guilty plea to delivery of oxycodone, as contained in count two of the
indictment, delivery of oxycodone (a lesser included offense of delivery within one thousand feet
of a school) as contained in count five of the indictment, and to delivery of alprazolam as
contained in count six of the indictment, and. At his plea hearing, petitioner admitted to selling
alprazolam and oxycodone to a confidential informant on three occasions.

        The circuit court ordered a home incarceration study and pre-sentence investigation.
Petitioner was revealed to have a criminal record consisting of two convictions for driving on a
suspended license, one conviction for domestic battery, one conviction of no child restraint, one
conviction of possession of a controlled substance, and one conviction for obstructing an officer.
Petitioner had other felony and misdemeanor arrests, but those matters were dismissed. The

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probation officer found that based upon the Level of Services Case Management Inventory
(LCSMI) Risk assessment, petitioner would need a higher level of supervision, high level of
treatment with appropriate dosage, and had a “higher likelihood” of recidivism.

        On September 23, 2014, petitioner was sentenced. The circuit court imposed a sentence
of not less than one nor more than fifteen years in the penitentiary and a $25,000 fine for his
conviction of count two of the indictment; not less than one nor more than fifteen years in the
penitentiary for his conviction of count three of the indictment; and not less than one nor more
than three years in the penitentiary for his conviction of count six of the indictment. The
sentences were to be served consecutively, for a total effective sentence of three to thirty-three
years. Petitioner filed a motion for reconsideration of sentence, which was denied.

        Petitioner now appeals the judgment and sentencing order entered September 25, 2014,
and the order denying his reconsideration of sentence entered January 3, 2015. In his appeal,
petitioner argues that the sentence (1) is based upon impermissible factors, and (2) violates the
proportionality principle of the United States Constitution, given the nature of the offense and
the record before the circuit court.

        “‘The Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse
of discretion standard, unless the order violates statutory or constitutional commands.’ Syllabus
point 1, in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).” Syl. Pt. 1, State v.
Sulick, 232 W.Va. 717, 753 S.E.2d 875 (2012).

        Petitioner’s appeal centers on the allegation that his sentence is improper, because the
circuit court imposed an effective sentence of three to thirty-three years of incarceration in the
penitentiary, and a fine of $25,000.00, and informed petitioner that this fine was “the cost of
doing business just like any other enterprise or entrepreneurial circumstance.” Petitioner claims
that this comment reveals that the circuit court considered an impermissible factor when deciding
his sentence. However, petitioner provides no authority to support this premise. Instead,
petitioner argues that there is no evidence that he was a “historical drug dealer for profit,” or that
he was engaged in a “large scale enterprise” making “large sums of money.” For the same
reasons, petitioner claims that his sentence is so harsh that it “shocks the conscience” in violation
of the proportionality principle of the Eighth Amendment to the United States Constitution.

        In response, the State of West Virginia first notes that petitioner’s sentence falls within
the statutory guidelines as set by the Legislature, and is therefore permissible. The State also
points out that the evidence shows that petitioner was engaged in the distribution of narcotics in
two different neighborhoods in the Clarksburg area, and as a result of this prolific activity, was
investigated and arrested by two separate law enforcement departments within that area. The
State argues that petitioner’s sentence is not disproportionate, and claims that the West Virginia
fine penalty for this offense is well within the average of surrounding states.

        We agree with the State, and find that the circuit court did not abuse its discretion, and
that petitioner’s sentence is not disproportionate. “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). First, petitioner

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concedes, and it is evident, that the sentence imposed is within the statutory limits proscribed
under West Virginia Code § 60A-4-401. Further, the circuit court did not err in requiring the
sentences to run consecutively to one another rather than concurrent. “When 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.” Syl. Pt. 3, Keith v. Leverette, 163 W.Va. 98, 254 S.E.2d
700 (1979). Therefore, the circuit court did not err by imposing a sentence that falls within the
statutory limits. In addition, the record reflects that the circuit court had the benefit of a home
incarceration study and a pre-sentence investigation report in making its determination regarding
petitioner’s sentence. Simply put, there is no evidence that the circuit court abused its discretion
by considering any impermissible factor, or that the circuit court exceeded statutory limits in
determining petitioner’s sentence.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.

ISSUED: February 26, 2016

CONCURRED IN BY:

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




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