                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS



State of West Virginia,                                                             FILED
Plaintiff Below, Respondent                                                       March 12, 2013
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
vs) No. 11-1616 (Webster County 11-F-32)                                        OF WEST VIRGINIA


Brenda Lunsford,
Defendant Below, Petitioner


                                  MEMORANDUM DECISION

        Petitioner Brenda Lunsford, by counsel, William C. Forbes, appeals the Circuit Court of
Webster County’s order entered September 13, 2011, sentencing her to two consecutive terms no
less than one nor more than three years of incarceration for each term. The State of West Virginia,
by counsel Robert D. Goldberg, filed a response in support of the circuit court’s order.

       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 arrested for delivery of a Schedule IV controlled substance for delivering
fifteen pills of Xanax in exchange for $45 in two separate transactions. She also was charged in
another case with possession of stolen property that she had purchased from an acquaintance.
Petitioner pleaded guilty to two counts of possession of a controlled substance and the charges
relating to stolen property were dropped pursuant to the plea agreement. At the plea hearing, the
circuit court assigned an adult probation officer to prepare a pre-sentence report. The officer is the
sister of one of the victims in the stolen property charges. The circuit court sentenced petitioner to
not less than one nor more than three years incarceration for each of the two charges of possession
of a controlled substance, to be served consecutively. Petitioner’s request for an alternative
sentence was denied.

             “‘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). Moreover, “‘[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.’ Syllabus point 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982)”
Syl. Pt. 6, State v. Slater, 222 W.Va. 499, 665 S.E.2d 674 (2008).

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        On appeal, petitioner argues the following four assignments of error: (1) that the circuit
court had a conflict of interest that so prejudiced petitioner that it undermined the integrity,
independence and reputation of the judiciary in violation of the Code of Judicial Conduct; (2) that
her bail was excessive in violation of West Virginia Constitution, Article III, § 5; (3) that the
prosecution abandoned its quasi-judicial role; and, (4) that the sentence was disproportionate in
violation of the West Virginia Constitution, Article III, § 5. For the first assignment of error,
petitioner argues that neither she nor her counsel knew of the relationship between one of the
victims of the stolen property offense and the probation officer. Had petitioner known of this
relationship, she argues, she would have prompted her to move for recusal and go to trial rather
than seek a plea bargain. She argues that the circuit court violated Canon 3C(1) of the Code of
Judicial Ethics by not recusing himself because an alleged victim is the sister of the probation
officer and because the circuit court was “laboring under passions and prejudices against counsel
for the State . . . .” In response, the State argues that petitioner failed to substantiate her claims of
prejudice, but merely repeated inferences and made supposedly self-evident claims and waived
the arguments by not raising them below.

       Second, petitioner argues the $50,000 bail was excessive due to her ties to the community
and that she was sixty-one years old with no criminal record prior to her arrest in this matter other
than driving under the influence of alcohol thirty years ago. Respondent argues that the issue is
moot, since she is incarcerated and that even if it was not mooted, the bail was set by the
magistrate, not the circuit court.

        Petitioner next argues that a prosecutor has a “quasi-judicial role[,]” Syl. Pt. 3, State v.
Boyd, 160 W. Va. 234, 233 S.E.2d 710 (1977), which she argues mandated that the State inform
petitioner of the relationship between the alleged victim and the probation officer. Further,
petitioner argues that the prosecution did not give her a “fair shake” because it was attempting to
appease the circuit court after the court discussed how the State has handled confidential
informants in other cases. Petitioner pointed to the State’s recommendation for incarceration,
which it argued made it more difficult to seek alternative sentencing in lieu of incarceration. The
State responds that petitioner did not show prosecutorial misconduct because the charges related
to the felony involving the probation officer’s sister were dropped. The State believes that
petitioner’s counsel knew of the alleged victim’s identity and makes the claim in bad faith. The
State further argues that it did not seek to “appease the trial court’s displeasure with the
prosecution . . .” on other issues, because the State did not know in advance that the court would
discuss issues relating to other cases at the plea hearing, which was after plea negotiations took
place.

        Finally, petitioner argues that the sentence was disproportionate to the underlying offense
in violation of the West Virginia State Constitution Article II, § 5. Petitioner again argues her ties
to Webster County, lack of criminal history, age and infirmity, as well as the fact that she cried at
the sentencing hearing as evidence of her contrition. She argues she should have been considered
for an alternative sentence in lieu of incarceration, but due to “substantial passions and
prejudices” of the circuit court, she was not. The State points out that petitioner is unable to argue
that the sentences were outside the statutory limits, so she is forced to argue subjective/objective
proportionality test identified in State v. Cooper, 172 W. Va. 266, 272, 304 S.E.2d 851, 857

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(1983). The State does not dispute the assertions made by petitioner, but counters that other
factors negate them. Specifically, the State points out that over $2,000 in cash and expensive
jewelry were found in petitioner’s home, despite her income allegedly being $1,432 per month,
and that she was out on bond on other charges when she sold the controlled substances.

        The Court has carefully considered the merits of each of petitioner’s arguments as set
forth in her petition for appeal. We find that the petitioner waived the alleged violations of
impartiality by the circuit court and prosecutorial discretion by not objecting to the alleged
prejudices before raising them on appeal. The alleged excessive bail was mooted upon conviction.
Spaulding v. W. Va. State Penitentiary, 158 W. Va. 557, 559, 212 S.E.2d 619, 621 (1975),
overruled on other grounds by State ex rel. White v. Mohn, 168 W. Va. 211, 283 S.E.2d 914
(1981). Finally, we find no abuse of discretion by the circuit court sentencing petitioner to two
consecutive sentences. Petitioner pled guilty to two felony counts of delivery of a controlled
substance in violation of West Virginia Code § 60A-4-401(a). Pursuant to that statute, any
defendant convicted thereunder “may be imprisoned in the state correctional facility for not less
than one year nor more than five years. . . .” Because the sentences imposed were within statutory
limits and were not based on an impermissible factor, the Court finds no error.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.


ISSUED: March 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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