                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia,
                                                       FILED
Plaintiff Below, Respondent                                                January 27, 2017

                                                                              RORY L. PERRY II, CLERK
vs) No. 16-0357 (Jefferson County 15-F-11)                                  SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

Wayne Dubuque,

Defendant Below, Petitioner



                              MEMORANDUM DECISION
        Petitioner Wayne Dubuque, by counsel Kevin D. Mills and Shawn R. McDermott,
appeals his sentence of five consecutive terms of imprisonment in the state penitentiary of five to
fifteen years each, subsequent to his plea of guilty to five counts of possession of material
depicting a minor engaged in sexually explicit conduct. Respondent State of West Virginia
appears by counsel Brandon C.H. Sims.

       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 order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.

        Petitioner was indicted in January of 2015 on twenty counts of various sexual assault and
child pornography crimes. This indictment stemmed from the assault of petitioner’s adult
girlfriend, and the following materials discovered during the investigation of that assault: one
CD, nine Polaroid pictures, two 4x6 pictures, five VHS cassettes, and a 2002 day planner. In
November of 2015, petitioner entered a plea of guilty to Count 1, addressing the assault of the
girlfriend, and Counts 5 through 9, addressing the five VHS cassettes that were found at
petitioner’s home. It is undisputed that Counts 5 through 7 are based on materials depicting
violence to a minor, and that Counts 8 and 9 are based on material that contains 600 images.

        At the plea hearing, the court acknowledged that petitioner and the State had no
agreement as to whether the sentences for Counts 5 through 9—each potentially carrying a
sentence of five to fifteen years—would be served consecutively or concurrently. Petitioner
indicated, however, that he wished to preserve his right to appeal the “multiplicity” of the
sentence with regard to Counts 5 through 9. Petitioner was sentenced, by order entered on March
15, 2016, to an aggregate term of imprisonment in the state penitentiary for 25 to 75 years for
Counts 5 to 9 (which were ordered to be served consecutively), and a term of imprisonment of 10
to 25 years for Count 1 (which was ordered to be served concurrently with the others).
Petitioner’s guilty plea to Count 1 and the resultant sentence is not an issue in this appeal.

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        On appeal, the crux of petitioner’s argument is that his indictment violates principles of
double jeopardy because he has received multiple punishments for a single offense. “[A] double
jeopardy claim[ is] reviewed de novo.” Syl. Pt. 1, State v. Sears, 196 W.Va. 71, 468 S.E.2d 324
(1996). Petitioner argues that all images found at his home should have been considered in the
aggregate for purposes of his indictment. However, we have expressly determined that “our
statutes protecting children from exploitation are interpreted to mean that possession of each
photograph is a separate act and is a distinct and separate unit of prosecution allowing the State
of West Virginia to charge separate counts and prosecute each act of possession.” State v.
Shingleton, ___ W.Va. ___, ___, 790 S.E.2d 505, 523 (2016), quoting Morgan v. Ballard, No.
11–1677, 2013 WL 149602 (W.Va. Jan. 14, 2013) (memorandum decision). There was no error
in the indictment.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: January 27, 2017

CONCURRED IN BY:

Chief Justice Allen H. Loughry
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker

DISSENTING:

Justice Robin Jean Davis




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