                                    STATE OF WEST VIRGINIA
                                  SUPREME COURT OF APPEALS


    State of West Virginia, Plaintiff Below,                                            FILED
    Respondent                                                                        October 21, 2013
                                                                                   RORY L. PERRY II, CLERK
                                                                                 SUPREME COURT OF APPEALS
    vs) No. 13-0310 (Wirt County 12-F-16)                                            OF WEST VIRGINIA 


    Dustin Shawn Cottrell, Defendant Below,
    Petitioner


                                     MEMORANDUM DECISION

            Petitioner Dustin Cottrell, by counsel G. Bradley Frum, appeals the Circuit Court of Wirt
    County’s February 19, 2013, order sentencing him to a term of incarceration of one to five years
    following his guilty plea to one count of manufacturing a controlled substance, marijuana. The
    State, by counsel Laura Young, filed a response. On appeal, petitioner alleges that the circuit
    court erred in denying his request for alternative sentencing and that his sentence constitutes a
    violation of double jeopardy.

           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.

            In September of 2012, a Wirt County Grand Jury indicted petitioner on one count of
    manufacturing a controlled substance after petitioner was arrested for cultivating marijuana. In
    December of 2012, petitioner entered into a plea agreement whereby he pled guilty to one count
    of manufacturing a controlled substance, marijuana. The State agreed to recommend probation if
    petitioner’s pre-sentence investigation report was favorable. During the pre-sentence
    investigation, it was discovered that petitioner was convicted in 1997 of first degree sexual
    assault, and the circuit court determined that petitioner never completed mandatory sex offender
    treatment related to that conviction. Further, the pre-sentence investigation report indicated that
    petitioner pled guilty to four misdemeanors since 1997. At sentencing, the circuit court denied
    petitioner’s request for probation or home incarceration and sentenced him to a term of
    incarceration of one to five years by order entered February 19, 2013. It is from this order that
    petitioner appeals

            Upon our review, the Court finds no error in regard to the circuit court denying
    petitioner’s request for alternative sentencing, and we further find that petitioner’s sentence does
    not constitute a violation of the protection against double jeopardy. To begin, West Virginia Code

                                                         1


 
§§ 62-12-3 and 62-11B-4(a) grant circuit courts discretion in ordering a defendant to serve a
sentence on probation or home incarceration, respectively. In the present case, the circuit court
denied petitioner’s request for alternative sentencing because, after reviewing petitioner’s pre-
sentence investigation report and lengthy criminal history, it found that he was likely to commit
another crime. Upon our review, we find no abuse of discretion in denying petitioner alternative
sentencing and imposing a sentence of incarceration.

        In imposing sentence, the circuit court sentenced petitioner to a term of incarceration of
one to five years. Pursuant to West Virginia Code § 60A-4-401(a), any person convicted of
manufacturing a Schedule I narcotic “may be imprisoned in the State correctional facility for not
less than one year nor more than fifteen years . . . .”1 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.’ Syllabus Point 4, State v. Goodnight, 169 W.Va. 366,
287 S.E.2d 504 (1982).” Syl. Pt. 3, State v. Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010).
Upon our review, we find that petitioner’s sentence is not appropriate for review because it was
within the applicable statutory limits and not based on any impermissible factor.

         While petitioner argues that his failure to obtain mandatory sex offender treatment
pursuant to his prior conviction for first degree sexual assault constitutes an impermissible factor
upon which to base his sentence, the Court disagrees. According to Rule 32(b) of the West
Virginia Rules of Criminal Procedure, in imposing sentence, circuit courts may consider the
defendant’s pre-sentence investigation report, which includes the defendant’s prior criminal
history. In the current matter, this report contained information concerning petitioner’s prior
conviction for first degree sexual assault. The circuit court further noted that petitioner failed to
complete mandatory sex offender treatment pursuant to that conviction. The circuit court was
within its right to consider petitioner’s prior failure to complete this mandatory treatment in
determining petitioner’s current sentence, as it speaks directly to petitioner’s willingness and
ability to comply with the terms of a potential alternative sentence. As such, we find that this does
not constitute an impermissible factor for the purposes of imposing sentence.

        Further, the Court finds no merit in petitioner’s argument that basing his sentence in the
current matter, in part, upon his failure to complete the mandatory sex offender treatment
constitutes a violation of his protection against double jeopardy. We have previously held that
“[t]he strength of a double jeopardy claim is whether a defendant is facing multiple punishment
for the same course of conduct.” Syl. Pt. 4, in part, State v. Sears, 196 W.Va. 71, 468 S.E.2d 324
(1996). The circuit court in this matter imposed sentence for the crime of manufacturing a
controlled substance, not the crime of first degree sexual assault. It is clear that petitioner is not
facing multiple punishments for the same course of conduct, but rather his prior criminal history
and failure to obtain mandatory sex offender treatment was considered in imposing sentence in
the current matter. For these reasons, we find no violation of petitioner’s right against double
jeopardy.



                                                                   
       1
            Pursuant to West Virginia Code § 60A-2-204(d)(1), marihuana is a Schedule I narcotic.
                                                                      2
       For the foregoing reasons, the circuit court’s February 19, 2013 sentencing order is hereby
affirmed.


                                                                                        Affirmed.

ISSUED: October 21, 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
 
 




                                                    3
