                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

State of West Virginia,

Plaintiff Below, Respondent                                                      FILED

                                                                                 April 12, 2013
                                                                            RORY L. PERRY II, CLERK
vs) No. 11-1691 (Wood County 09-F-195)                                    SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

Glenda Roush,

Defendant below, Petitioner


                             MEMORANDUM DECISION
       Petitioner Glenda Roush, by counsel Courtney L. Ahlborn, appeals the Circuit Court of
Wood County’s sentencing order entered November 9, 2011, that sentenced petitioner to not less
than one nor more than three years in prison based upon her guilty plea to one count of
attempting to obtain possession of a controlled substance by misrepresentation. The State, by
counsel, C. Casey Forbes, filed a summary 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 Rules of Appellate
Procedure.

       Petitioner was indicted during the September of 2009 term of court on one count of
attempting to obtain possession of a controlled substance by misrepresentation, one count of
entering without breaking an automobile, and one count of petit larceny.

        On November 29, 2010, petitioner pled guilty to one count of attempting to obtain
possession of a controlled substance by misrepresentation. Prior to her plea, petitioner had
received in-patient services at a substance abuse treatment facility. At the time of her plea,
petitioner was an out-patient at that same treatment facility. Following her plea, petitioner was
released from custody pending the completion of a pre-sentence report.

        Prior to sentencing, petitioner began abusing drugs again in January of 2011. A bench
warrant was issued for her arrest and she was taken into custody on March 1, 2011. Petitioner
was released from custody on March 29, 2011, when she was admitted into the Cabell County
Drug Court program. Petitioner was re-incarcerated from May 31 to June 7, 2011, following a
failed drug screen. When petitioner failed yet another drug screen on September 6, 2011, she
absconded but was re-arrested on September 16, 2011. Thereafter, her participation in the Cabell
County Drug Court program was terminated. Petitioner was sentenced on November 8, 2011, to
not less than one nor more than three years in prison, with credit for time served.



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       On appeal, petitioner argues that her sentence violates her constitutional right against
cruel and unusual punishment as guaranteed by the Article III, Section 5 of the West Virginia
Constitution and the Eighth Amendment of the United States Constitution. Petitioner admits that
she has a substance abuse problem and has relapsed from time to time. However, she argues that,
while she was participating in the Drug Court Program, she completed many of the tasks
required of her. Petitioner seeks another opportunity to attend an inpatient substance abuse
program.

        “‘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).

        Having reviewed the parties’ arguments and the record on appeal, we find that the circuit
court did not abuse its discretion in sentencing petitioner. Petitioner’s sentence fell within the
statutory guidelines and she has not argued that her sentence was based on impermissible factors.
See Syl. Pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982). Moreover, at the time
petitioner was sentenced, she had already attended more than one drug treatment program, had
tested positive for drug use on at least two occasions during treatment, and had absconded after
testing positive for drug use.

       For the foregoing reasons, we affirm the circuit court’s order.

                                                                                         Affirmed.

ISSUED: April 12, 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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