                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS

State of West Virginia,
Plaintiff Below, Respondent                                                       FILED
                                                                             September 5, 2017
vs) No. 16-0890 (Braxton County 15-F-42)                                         RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
Jeffery A.,

Defendant Below, Petitioner



                              MEMORANDUM DECISION
        Petitioner Jeffery A.1, by counsel Kevin W. Hugart, appeals the Circuit Court of Braxton
County’s September 14, 2016, order sentencing him to a term of incarceration of ten to twenty
years for his conviction of one count of sexual abuse by a parent, guardian, custodian, or person
in a position of trust. The State, by counsel Gordon L. Mowen II, filed a response. On appeal,
petitioner argues that the circuit court erred in sentencing him to an indeterminate sentence
instead of imposing an alternative sentence and that his sentence is unconstitutionally
disproportionate to the offense for which he was convicted.

        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, this 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.

       Between June of 2010 and December of 2014, petitioner engaged in multiple instances of
sexual contact with R.F., an eleven-year-old child he provided care for as a babysitter. These
instances of sexual contact included touching R.F.’s vagina and breasts and forcing R.F. to touch
his penis, and perform oral sex upon him. Following R.F’s disclosure of this abuse to a school
counselor, petitioner was indicted on four counts of first-degree sexual assault, three counts of


       1
         Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).




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first-degree sexual abuse, and ten counts of sexual abuse by a parent, guardian, custodian, or
person in a position of trust, during the October of 2015 term of court.

         In March of 2016, petitioner entered into a plea agreement whereby he agreed to plead
guilty to one count of sexual abuse by a parent, guardian, custodian, or person in a position of
trust, in exchange for the dismissal of all other counts. However, the State reserved its right to
argue for incarceration at the sentencing hearing and the parties agreed that sentencing would be
left to the circuit court’s discretion at the later sentencing hearing. The circuit court found that
petitioner’s plea and related waiver of his right to a trial was made knowingly, intelligently, and
voluntarily. Petitioner’s sentencing was deferred pending a sex offender evaluation and pre-
sentence investigation report.

        In May of 2016, the circuit court held a sentencing hearing, during which petitioner
argued for the imposition of probation. The circuit court found, based on his sex offender
evaluation and pre-sentence investigation report, that petitioner would “be best served by
correctional treatment in a correctional setting.” The sex offender evaluation report indicated that
petitioner admitted to the sexual contact with R.F. and blamed the victim for the abuse, stating
that the victim “wanted it” and that he “caved to her advances because it [had] been a while since
he felt the touch of a woman.” The circuit court noted that placing petitioner on alternative
sentencing would “depreciate the seriousness of the offense,” particularly given that he blamed
the victim for his conduct. Ultimately, the circuit court denied petitioner’s requests and imposed
a term of incarceration of ten to twenty years by order dated September 14, 2016. The circuit
court also imposed forty years of supervised release. It is from the sentencing order that
petitioner appeals.

       We have previously established the following standard of review:

                “In reviewing the findings of fact and conclusions of law of a circuit court
       . . . , we apply a three-pronged standard of review. We review the decision . . .
       under an abuse of discretion standard; the underlying facts are reviewed under a
       clearly erroneous standard; and questions of law and interpretations of statutes
       and rules are subject to a de novo review.” Syllabus Point 1, State v. Head, 198
       W.Va. 298, 480 S.E.2d 507 (1996).

Syl. Pt. 1, in part, State v. Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010). Upon our review, we
find no error in the proceedings below.

        Petitioner first argues that the circuit court should have imposed an alternative sentence.
In support of his argument, petitioner asserts that a variety of factors, including his poor health,
“crime-free” lifestyle, and childhood trauma, among other issues, were not properly considered
by the circuit court and that its sentencing order “unfairly disregards” this information. We do
not agree. We have 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. 2, State v. Booth,
224 W.Va. 307, 685 S.E.2d 701 (2009). Here, petitioner does not allege that his sentence is
outside the bounds of the applicable statute or based on any impermissible factor. Indeed,

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petitioner readily admits that West Virginia Code § 61-8D-5(a) allows for imposition of a term
of incarceration between ten and twenty years.2 Instead, petitioner argues that the discretion to
impose an indeterminate sentence leads to unfair sentencing and to an effective “life sentence”
for him because of his failing health.

        This Court has stated that “[w]hile our constitutional proportionality standards
theoretically can apply to any criminal sentence, they are basically applicable to those sentences
where there is either no fixed maximum set by statute or where there is a life recidivist
sentence.” Syl. Pt. 4, Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981). We
have recognized that “[a]rticle III, Section 5 of the West Virginia Constitution, which contains
the cruel and unusual punishment counterpart to the Eighth Amendment of the United States
Constitution, has an express statement of the proportionality principle: ‘Penalties shall be
proportioned to the character and degree of the offence.’” Syl. Pt. 8, State v. Vance, 164 W.Va.
216, 262 S.E.2d 423 (1980). We have explained that

       [p]unishment may be constitutionally impermissible, although not cruel or
       unusual in its method, if it is so disproportionate to the crime for which it is
       inflicted that it shocks the conscience and offends fundamental notions of human
       dignity, thereby violating West Virginia Constitution, Article III, Section 5 that
       prohibits a penalty that is not proportionate to the character and degree of an
       offense.

Syl. Pt. 5, State v. Cooper, 172 W.Va. 266, 304 S.E.2d 851 (1983).

       The test set forth in Cooper was further explained as follows:

       The first [test] is subjective and asks whether the sentence for the particular crime
       shocks the conscience of the court and society. If a sentence is so offensive that it
       cannot pass a societal and judicial sense of justice, the inquiry need not proceed
       further. When it cannot be said that a sentence shocks the conscience, a
       disproportionality challenge is guided by the objective test we spelled out in
       Syllabus Point 5 of Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205
       (1981):

       2
           West Virginia Code § 61-8D-5(a) states, in relevant part, that

       [i]f any parent, guardian or custodian of or other person in a position of trust in
       relation to a child under his or her care, custody or control, shall engage in or
       attempt to engage in sexual exploitation of, or in sexual intercourse, sexual
       intrusion or sexual contact with, a child under his or her care, custody or control, .
       . . then such parent, guardian, custodian or person in a position of trust shall be
       guilty of a felony and, upon conviction thereof, shall be imprisoned in a
       correctional facility not less than ten years nor more than twenty years . . . .




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       In determining whether a given sentence violates the proportionality principle
       found in Article III, Section 5 of the West Virginia Constitution, consideration is
       given to the nature of the offense, the legislative purpose behind the punishment,
       a comparison of the punishment with what would be inflicted in other
       jurisdictions, and a comparison with other offenses within the same jurisdiction.

Id. at 272, 304 S.E.2d at 857. As previously explained by this Court, the second test charges that
“a disproportionality challenge should be resolved by more objective factors which include the
consideration of the nature of the offense, the defendant’s past criminal history, and his
proclivity to engage in violent acts.” State v. Broughton, 196 W.Va. 281, 292, 470 S.E.2d 413,
424 (1996).

       Petitioner maintains that the sentence imposed upon him shocks the conscience. We
disagree. First, the ten to twenty year sentence imposed on petitioner does not shock the
conscience of this Court. His crime was one of sexual abuse by a parent, guardian, custodian, or
person in a position of trust, wherein he pled guilty to sexually abusing an eleven-year-old child
he provided care to as a babysitter. Petitioner admitted to the sexual contact with the child and
blamed her for the abuse. Given his decision to prey upon a child and the seriousness of the
offense, we find that petitioner’s ten to twenty year sentence does not shock the conscience.

       For the foregoing reasons, the circuit court’s September 14, 2016, sentencing order is
hereby affirmed.


                                                                                        Affirmed.

ISSUED: September 5, 2017

CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




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