          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                    January 2014 Term
                                    _______________                          FILED
                                                                          May 8, 2014
                                      No. 13-0311                         released at 3:00 p.m.
                                                                        RORY L. PERRY II, CLERK
                                    _______________                   SUPREME COURT OF APPEALS
                                                                           OF WEST VIRGINIA

                            STATE OF WEST VIRGINIA,

                             Plaintiff Below, Respondent


                                            v.

                                      REBECCA F.,

                                Defendant Below, Petitioner


       ____________________________________________________________

                   Appeal from the Circuit Court of Berkeley County

                     The Honorable Christopher C. Wilkes, Judge

                             Criminal Case No. 11-F-46


                                AFFIRMED

       ____________________________________________________________

                                 Submitted: April 7, 2014

                                   Filed: May 8, 2014



Christopher J. Prezioso, Esq.                    Cheryl K. Saville, Esq.
Luttrell & Prezioso, PLLC                        Assistant Prosecuting Attorney
Charles Town, West Virginia                      Martinsburg, West Virginia
Counsel for the Petitioner                       Counsel for the Respondent




JUSTICE KETCHUM delivered the Opinion of the Court.
                             SYLLABUS BY THE COURT



              1.     “The Supreme Court of Appeals reviews sentencing orders,

including orders of restitution made in connection with a defendant’s sentencing, under a

deferential abuse of discretion standard, unless the order violates statutory or

constitutional commands.” Syllabus Point 1, State v. Lucas, 201 W.Va. 271, 496 S.E.2d

221 (1997).



              2.     “‘Sentences 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).” Syllabus Point 3,

State v. Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010).



              3.     W.Va. Code § 61-11A-4(a) [2006] contained in the Victim

Protection Act of 1984, W.Va. Code § 61-11A-1 et seq. [1984], requires a circuit court,

absent a finding of impracticality, to order a defendant convicted of a felony or

misdemeanor causing psychological or economic injury or loss to a victim, to make

restitution to the victim of the offense. W.Va. Code § 61-11A-4 does not contain specific

factors a circuit court should consider when formulating a restitution award to a victim

who suffers psychological or economic injuries pursuant to W.Va. Code § 61-11A-4(a).

Therefore, a circuit court formulating a restitution award to a victim who suffers

psychological or economic injuries pursuant to W.Va. Code § 61-11A-4(a), should


                                             i
consider the factors set forth in W.Va. Code § 61-11A-5(a) [1984] of the Victim

Protection Act of 1984. These factors include (1) the amount of the loss sustained by the

victim as a result of the offense; (2) the financial resources of the defendant; (3) the

financial needs and earning ability of the defendant and the defendant’s dependents; and

(4) such factors as the court deems appropriate.




                                            ii
Justice Ketchum:


                Petitioner Rebecca F.1 (“defendant”) appeals the February 4, 2013, order of

the Circuit Court of Berkeley County sentencing her to an effective five-year prison term

and ordering her to pay restitution following her guilty plea to eight counts of identity

theft. The defendant was ordered to pay restitution to six financial institutions and to the

person whose identity she stole – her daughter. The defendant opened a number of

fraudulent accounts in her daughter’s name beginning when her daughter was fourteen

years old.2    At the time of sentencing, the defendant’s daughter had reached the age of

majority and these fraudulent accounts resulted in the daughter’s credit rating being

ruined.

                On appeal, the defendant raises two assignments of error. She argues that

the circuit court erred by (1) sentencing her to prison instead of placing her on probation

or home confinement, and (2) ordering her to pay restitution to her daughter. The

defendant has not challenged the circuit court’s order that she pay restitution to the six

financial institutions.




       1
         We adhere to our usual practice in cases involving sensitive facts and do not
refer to the parties using their full names. See In re Clifford K., 217 W.Va. 625, 619
S.E.2d 138 (2005).
       2
           We refer to the defendant’s daughter in this Opinion as “daughter” or “victim.”



                                              1

                After review, we find no error and, accordingly, affirm the circuit court’s

sentencing order.



                                               I.


                    FACTUAL AND PROCEDURAL BACKGROUND


                In February 2011, a Berkeley County Grand Jury indicted the defendant on

eleven counts of child abuse with bodily injury in violation of W.Va. Code § 61-8D-3(a)

[1996], and eight counts of identity theft in violation of W.Va. Code § 61-3-54 [1998].

The eight counts of identity theft alleged that the defendant fraudulently used her

fourteen-year old daughter’s identity (name, birth date, and social security number) “for

the purpose of making financial or credit transactions” in her daughter’s name. On April

2, 2012, the defendant entered an Alford guilty plea to the eight felony counts of identity

theft.3 The State recommended that the defendant receive a ten-year prison term and pay

all of the restitution costs listed in the indictment.4 The circuit court deferred sentencing




       3
         As part of the plea agreement, the remaining felony counts for child abuse with
bodily injury were to be scheduled for trial.
       4
           The circuit court’s order following the plea hearing included the following:

                       The State will recommend that the defendant shall
                receive a sentence of five years in the penitentiary on each of
                the eight counts with a fine of one thousand dollars on each
                count. The State will however bind [sic] that the sentences
                shall run with four counts running concurrently with each
                                                                              (continued . . .)

                                               2

after the plea agreement and guilty plea were entered so that a presentence investigation

report could be prepared. The court also ordered that the defendant undergo a diagnostic

evaluation at the Lakin Correctional Center. After the presentence investigation report

and diagnostic evaluation were completed, the circuit court held a sentencing hearing on

January 14, 2013.

             At the sentencing hearing, the circuit court heard the arguments of counsel,

as well as statements from the defendant and the victim. At the time of the sentencing

hearing, the victim had reached the age of majority. The circuit court did not follow the

State’s recommendation that the defendant be sentenced to serve a ten-year prison term.

Instead, the circuit court sentenced the defendant to serve five years in prison.5 Further,




             other but consecutive to the remaining four counts which
             shall also be concurrent with each other for an actual sentence
             of ten years. The Court may determine how the fines are to
             be assessed.

                    The Defendant shall be responsible for all amounts
             owed as listed in the indictment whether or not they are
             charged off. The Defendant shall further be responsible for
             clearing all credit reports or costs associated with clearing the
             said credit reports of the victim related to these charges.
      5
         The circuit court ordered the defendant to serve a determinant term of five years
of incarceration on each of the eight felony counts. However, the court ordered that

             [T]he sentences in Counts 12, 13, 14, and 15 run concurrent
             with each other and the sentences ordered on Counts 16, 17,
             18, and 19 run concurrent with each other. However, the
                                                                      (continued . . .)

                                            3

the circuit court ordered that the defendant pay restitution to the following financial

institutions: $1,370.32 to Applied Bank; $1,114.98 to Barclay Card UC; $1,232.00 to

Zenith Acquisition Corporation; $3,753.00 to Chase Card Services; $630.44 to HSBC

Card Services; and $2,842.00 to SST/Columbus Bank and Trust. In addition, the circuit

court ordered the defendant to pay $10,000.00 in restitution to her daughter “because of

the attempts and time and the effort she has to make to try to rectify the wrongful credit

aspect of [the identity theft].”

               After entry of this sentencing order, the defendant filed the present appeal.




               sentences on Counts 12, 13, 14, and 15 shall run consecutive
               to the sentences on Counts 16, 17, 18, and 19.

                      It is ORDERED that the defendant shall serve actual
               incarceration for counts 12 and 13 which is five years on each
               count running concurrent.

                       It is ORDERED that the sentences for Counts 14 and
               15 are SUSPENDED for a five year term of probation, and
               the sentences for Counts 16, 17, 18, and 19 are SUSPENDED
               for a five year term of probation, which shall be consecutive
               to the term of probation for counts 14 and 15.




                                              4

                                             II.


                               STANDARD OF REVIEW


              This Court’s established standard of review for sentencing orders is set

forth in Syllabus Point 1 of State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997). It

states:

                     The Supreme Court of Appeals reviews sentencing
              orders, including orders of restitution made in connection
              with a defendant’s sentencing, under a deferential abuse of
              discretion standard, unless the order violates statutory or
              constitutional commands.

              The issues upon which the defendant bases her appeal are statutory matters

which are reviewed as questions of law. “Where the issue on an appeal from the circuit

court is clearly a question of law or involving an interpretation of a statute, we apply a de

novo standard of review.” Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va.

138, 459 S.E.2d 415 (1995).



                                            III.


                                       ANALYSIS


              The defendant raises two issues in this appeal. We address each of them in

turn.

                                    A. Prison Sentence

              The first issue raised by the defendant is that the circuit court erred by

sentencing her to a five-year prison term instead of placing her on probation or home


                                             5

confinement. In support of this argument, the defendant raises a number of factors —

including her lack of a previous criminal record, her education and employment history,

and her expression of remorse for committing the identity theft — that she argues weigh

in favor of placing her on probation6 or home confinement. Additionally, the defendant

asserts that “there is currently extreme overcrowding in the West Virginia Division of




      6
        With regard to the defendant’s contention that she should have been granted
probation, this Court explained in State v. Duke, 200 W.Va. 356, 364, 489 S.E.2d 738,
746 (1997), that:

                    We have recognized that probation is a privilege of
             conditional liberty bestowed upon a criminal defendant
             through the grace of the circuit court. See, e.g., State ex rel.
             Winter v. MacQueen, 161 W.Va. 30, 32-33, 239 S.E.2d 660,
             661-62 (1977) (“‘[A] defendant convicted of a crime has no
             absolute right to probation, probation being a matter of grace
             only, extended by the State to a defendant convicted of a
             crime, in certain circumstances and on certain conditions.’”
             (quoting State v. Loy, 146 W.Va. 308, 318, 119 S.E.2d 826,
             832 (1961))); Syl. pt. 1, State v. Rose, 156 W.Va. 342, 192
             S.E.2d 884 (1972) (“Probation is a matter of grace and not a
             matter of right.”); State ex rel. Riffle v. Thorn, 153 W.Va. 76,
             81, 168 S.E.2d 810, 813 (1969) (“‘Probation or suspension of
             sentence comes as an act of grace to one convicted of a
             crime[.]’” (quoting Escoe v. Zerbst, 295 U.S. 490, 492, 55
             S.Ct. 818, 819, 79 L.Ed. 1566, 1568 (1935))); Syl. pt. 2, State
             ex rel. Strickland v. Melton, 152 W.Va. 500, 165 S.E.2d 90
             (1968) (“Probation is not a sentence for a crime but instead is
             an act of grace upon the part of the State to a person who has
             been convicted of a crime.”).




                                            6

Corrections and that a reduced sentence would allow justice to be served while more

quickly relieving the strained prison system of another inmate.”

              The defendant concedes, however, that the “sentence received . . . is within

the statutory limits for [identity theft]. [Defendant] further recognizes that this Court has

held that criminal sentences within the statutory limits of a crime, unless based on some

impermissible factor, will not be subject to appellate review.” The defendant also

concedes that the circuit court did not base its sentence on an impermissible factor.

Despite these concessions, the defendant asks this Court to reconsider our previous

holding 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).” Syllabus Point 3, State v.

Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010). We decline the defendant’s invitation

to reconsider our prior holding.

              This Court has consistently recognized that “the rule is that sentences

imposed by the trial court, if within the statutory limits and if not based on some

impermissible factor are not subject to appellate review.” State v. Rogers, 167 W.Va.

358, 360, 280 S.E.2d 82, 84 (1981); see, State v. Grimes, 226 W.Va. 411, 422, 701

S.E.2d 449, 460 (2009); and Syllabus Point 9, State v. Hays, 185 W.Va. 664, 408 S.E.2d

614 (1991). Further, “[i]t is not the proper prerogative of this Court to substitute its

judgment for that of the trial court on sentencing matters, so long as the appellant’s

sentence was within the statutory limits, was not based upon any impermissible factors,


                                             7

and did not violate constitutional principles.” State v. Georgius, 225 W.Va. at 722, 696

S.E.2d at 24.

                The maximum statutory sentence for felony identity theft, in violation of

W.Va. Code § 61-3-54, is five years in the penitentiary. W.Va. Code § 61-3-54 states

                        Any person who knowingly takes the name, birth date,
                social security number or other identifying information of
                another person, without the consent of that other person, with
                the intent to fraudulently represent that he or she is the other
                person for the purpose of making financial or credit
                transactions in the other person's name, is guilty of a felony,
                and upon conviction, shall be punished by confinement in the
                penitentiary not more than five years, or fined not more than
                one thousand dollars, or both: Provided, That the provisions
                of this section do not apply to any person who obtains another
                person’s drivers license or other form of identification for the
                sole purpose of misrepresenting his or her age.

                The defendant pled guilty to eight counts of felony identity theft and faced

a maximum forty-year prison sentence. In the plea deal, the State recommended that the

defendant receive a ten-year prison sentence. The circuit court sentenced the defendant

to serve five years in prison. Because it is undisputed that the defendant was sentenced

within the statutory limits, and because the sentence was not based on an impermissible

factor, we find that the circuit court did not abuse its discretion by sentencing the

defendant to serve five years in prison.



                                        B. Restitution

                The second issue raised by the defendant is that the circuit court erred by

ordering that restitution be paid to the victim of the identity theft, her daughter. The

                                               8

circuit court awarded $10,000.00 to the victim “because of the attempts and time and the

effort she has to make to try to rectify the wrongful credit aspect of [the identity theft].

That not only takes time and money and things like that so it is a restorative restitution[.]”

              The defendant states that the restitution award to the victim is not

permissible under W.Va. Code § 61-11A-4 [2006] or W.Va. Code § 61-11A-5 [2006] of

the Victim Protection Act of 1984, W.Va. Code § 61-11A-1 et seq. [1984] (“Victim

Protection Act” or the “Act”). The defendant does not discuss these statutes in detail or

cite any previous decisions from this Court in support of her argument. Instead, the

defendant makes the general argument that “this $10,000.00 award of restorative

restitution is punitive in nature and explicitly prohibited by the laws governing

restitution.” The defendant further asserts that “the State in no way met its burden of

proving that the $10,000.00 award of restorative restitution was necessary or cognizable

under W.Va. Code § 61-11A-5.”

              This issue requires us to examine the Victim Protection Act, W.Va. Code §§

61-11A-1 to 8. The Victim Protection Act governs restitution to direct victims of crime in

criminal cases.   W.Va. Code § 61-11A-1 of the Victim Protection Act provides an

extensive statement of the Legislature’s intention “to enhance and protect the necessary

role of crime victims and witnesses in the criminal justice process and to ensure that the




                                              9

state and local governments do all that is possible within the limits of available resources

to assist victims and witnesses of crime [.]” (Emphasis added).7




       7
           The full text of W.Va. Code § 61-11A-1 is as follows:

                       (a) The legislature finds and declares that without the
                cooperation of victims and witnesses, the criminal justice
                system would cease to function, yet too often these
                individuals are either ignored by the criminal justice system
                or simply used as tools to identify and punish offenders.

                       The legislature finds further that all too often the
                victim of a serious crime is forced to suffer physical,
                psychological or financial hardship first as a result of the
                criminal act and then as a result of contact with a criminal
                justice system not totally responsive to the needs of such
                victims.

                       The legislature finds further that under the current law,
                law-enforcement agencies must have cooperation from a
                victim of crime and yet neither the agencies nor the legal
                system can offer adequate protection or assistance when the
                victim, as a result of such cooperation, is threatened or
                intimidated.

                       The legislature finds further that while the defendant is
                provided with counsel who can explain both the criminal
                justice process and the rights of the defendant, the victim or
                witness has no counterpart and is usually not even notified
                when the defendant is released on bail, the case is dismissed,
                a plea to a lesser charge is accepted or a court date is
                changed.

                       The legislature finds further that the victim or witness
                who cooperates with the prosecutor often finds that the
                transportation, parking facilities and child care services at the
                                                                                (continued . . .)

                                               10

             This Court examined the Victim Protection Act in State v. Lucas, 201

W.Va. 271, 496 S.E.2d 221 (1997), and held that a circuit court should ordinarily order a

criminal defendant to make full restitution to victims of his/her crime when permitted

under the Act. Syllabus Point 2 of Lucas holds:

                     Read in pari materia, the provisions of W.Va.Code,
             61-11A-1 [1984], W.Va.Code, 61-11A-4(a) [1984],
             W.Va.Code, 61-11A-4(d) [1984], W.Va.Code, 61-11A-5(a)
             [1984] and W.Va.Code, 61-11A-5(d) [1984], establish that at
             the time of a convicted criminal defendant’s sentencing, a
             circuit court should ordinarily order the defendant to make
             full restitution to any victims of the crime who have suffered
             injuries, as defined and permitted by the statute, unless the
             court determines that ordering such full restitution is
             impractical.




             court are unsatisfactory and they must often share the pretrial
             waiting room with the defendant or his family and friends.

                    The legislature finds further that the victim may lose
             valuable property to a criminal only to lose it again for long
             periods of time to law-enforcement officials, until the trial
             and appeals are over; many times the property is damaged or
             lost, which is particularly stressful for the elderly or poor.

                     (b) The legislature declares that the purposes of this
             article are to enhance and protect the necessary role of crime
             victims and witnesses in the criminal justice process and to
             ensure that the state and local governments do all that is
             possible within the limits of available resources to assist
             victims and witnesses of crime without infringing on the
             constitutional rights of the defendant.



                                           11

              The Court in Lucas further held that there is a presumption in favor of an

award of full restitution to crime victims. Syllabus Point 3 of Lucas holds:

                      Under W.Va.Code, 61-11A-1 through -8 and the
              principles established in our criminal sentencing
              jurisprudence, the circuit court’s discretion in addressing the
              issue of restitution to crime victims at the time of a criminal
              defendant’s sentencing is to be guided by a presumption in
              favor of an award of full restitution to victims, unless the
              circuit court determines by a preponderance of the evidence
              that full restitution is impractical, after consideration of all of
              the pertinent circumstances, including the losses of any
              victims, the financial circumstances of the defendant and the
              defendant’s family, the rehabilitative consequences to the
              defendant and any victims, and such other factors as the court
              may consider.

              Additionally, in State v. Whetzel, 200 W.Va. 45, 488 S.E.2d 45 (1997), this

Court stated that the Victim Protection Act “predicates an award of restitution upon a

defendant’s conviction of a felony or misdemeanor and upon the ‘physical, psychological

or economic injury or loss to the victim.’” 200 W.Va. at 48, 488 S.E.2d at 48. The Court

further explained in Whetzel that

              the clear intention of the Legislature in enacting W.Va.Code §
              61-11A-4(a) was to enable trial courts to require convicted
              criminals to pay all losses sustained by victims in the
              commission of the crime giving rise to the conviction. Any
              other interpretation would run counter to the legislative intent
              that ‘all that is possible’ be done, an intent set forth in
              W.Va.Code § 61-11A-1(b).

Id.

              As stated in Whetzel, W.Va. Code § 61-11A-4(a) requires that a circuit

court order a defendant convicted of a felony or misdemeanor, who causes physical,


                                              12

psychological or economic injury to a victim, to pay full restitution to that victim, unless

the court finds restitution to be wholly or partially impractical. W.Va. Code § 61-11A­

4(a) states:

                      (a) The court, when sentencing a defendant convicted
               of a felony or misdemeanor causing physical, psychological
               or economic injury or loss to a victim, shall order, in addition
               to or in lieu of any other penalty authorized by law, that the
               defendant make restitution to any victim of the offense,
               unless the court finds restitution to be wholly or partially
               impractical as set forth in this article.

                       If the court does not order restitution, or orders only
               partial restitution, under this section, the court shall state on
               the record the reasons therefor.

(Emphasis added).

               In the present case, the defendant pled guilty to eight felony counts of

identity theft. During the sentencing hearing, the victim described the psychological and

economic injuries that she has suffered as a result of the defendant’s identity theft:

                      A mother and a daughter are supposed to have a
               trustworthy bond and my mother broke that bond in every
               possible way. Since I was 12 or 13 I have been getting calls
               from credit card companies. When I lived at my mother’s
               house the children were not allowed to answer the phone,
               period, and if we did we got in a lot of trouble. Also, if we
               saw mail with our name on it we were not allowed to open it.

                      When I was around 14 I saw the mail and I had a credit
               card with my name on it and I asked my mom what it was.
               She told me that they send you credit cards before you turn 18
               in preparation for turning 18.

                      When I moved into my father’s house I started getting
               calls on my cellphone and at my grandpa’s house all hours of
               the night, day and night, about bills that I owed that I had no

                                              13
              idea about. I asked my mother if she knew what the calls
              were about and she said she did not know and wanted me to
              leave it at that.

                      I discovered that I could not rent a place due to my
              credit score and I had to rely on moving in with friends.

                      When the car that my father bought for me died and I
              needed to get a new one I could not get any financing and I
              had to borrow money from family. I could not even get a gas
              card due to my credit. To this day my family and I still get
              calls regarding bills that I owe. I cannot get any loans of any
              kind. I’m not even able to go to school right now due to this
              situation. In addition, I have been turned down for multiple
              good paying jobs due to my credit report and it has taken me
              over a year to find a job that pays more than minimum wage.

              In addition to the victim’s statement, the presentence investigation report

also described the psychological and economic injuries the victim suffered as a direct

result of the defendant’s identity theft. Based on this evidence of psychological and

economic injuries suffered by the victim, the circuit court concluded that an award of

restitution was appropriate. W.Va. Code § 61-11A-4(a) requires, absent a finding of

impracticality, that a circuit court order a defendant to make restitution to any crime

victim who has suffered a physical, psychological or economic injury. Because there was

a clear showing of psychological and economic harm suffered by the victim, we find that

the circuit court did not abuse its discretion in awarding restitution to the victim.

              The next issue we address is whether the amount of the restitution award

was proper. W.Va. Code § 61-11A-4(b) provides specific instruction to a circuit court




                                              14

when formulating a restitution award resulting from property damage, bodily injury and

bodily injury causing death.8 However, W.Va. Code § 61-11A-4(b) does not address the




      8
          W.Va. Code § 61-11a-4(b) states:

               (b) The order shall require that the defendant:

               (1) In the case of an offense resulting in damage to, loss of, or
               destruction of property of a victim of the offense:

               (A) Return the property to the owner of the property or
               someone designated by the owner; or

               (B) If return of the property under subparagraph (A) is
               impossible, impractical or inadequate, pay an amount equal to
               the greater of: (i) The value of the property on the date of
               sentencing; or (ii) the value of the property on the date of the
               damage, loss or destruction less the value (as of the date the
               property is returned) of any part of the property that is
               returned;

               (2) In the case of an offense resulting in bodily injury to a
               victim:

               (A) Pay an amount equal to the cost of necessary medical and
               related professional services and devices relating to physical,
               psychiatric and psychological care, including nonmedical care
               and treatment rendered in accordance with a method of
               healing recognized by the law of the place of treatment;

               (B) Pay an amount equal to the cost of necessary physical and
               occupational therapy and rehabilitation; and

               (C) Reimburse the victim for income lost by the victim as a
               result of the offense;

                                                                              (continued . . .)

                                              15

specific considerations a circuit court should undertake when formulating a restitution

award resulting from psychological or economic injuries or loss. W.Va. Code § 61-11A­

5(a) [1984], however, contains general considerations a circuit court should undertake

when determining whether to order restitution under the Victim Protection Act and in

determining the amount of restitution to award. W.Va. Code § 61-11A-5(a) states:

                     The court, in determining whether to order restitution
             under this article, and in determining the amount of such
             restitution, shall consider the amount of the loss sustained by
             any victim as a result of the offense, the financial resources of
             the defendant, the financial needs and earning ability of the
             defendant and the defendant’s dependents, and such factors as
             the court deems appropriate.

             We therefore hold that W.Va. Code § 61-11A-4(a), contained in the Victim

Protection Act, requires a circuit court, absent a finding of impracticality, to order a

defendant convicted of a felony or misdemeanor causing psychological or economic

injury or loss to a victim, to make restitution to the victim of the offense. W.Va. Code §




             (3) In the case of an offense resulting in bodily injury that
             also results in the death of a victim, pay an amount equal to
             the cost of necessary funeral and related services; and

             (4) In any case, if the victim (or if the victim is deceased, the
             victim’s estate) consents, or if payment is impossible or
             impractical, make restitution in services in lieu of money, or
             make restitution to a person or organization designated by the
             victim or the estate.




                                            16

61-11A-4 does not contain specific factors a circuit court should consider when

formulating a restitution award to a victim who suffers psychological or economic

injuries pursuant to W.Va. Code § 61-11A-4(a). Therefore, a circuit court formulating a

restitution award to a victim who suffers psychological or economic injuries pursuant to

W.Va. Code § 61-11A-4(a) should consider the factors set forth in W.Va. Code § 61­

11A-5(a) of the Victim Protection Act. These factors include (1) the amount of the loss

sustained by any victim as a result of the offense; (2) the financial resources of the

defendant; (3) the financial needs and earning ability of the defendant and the defendant’s

dependents; and (4) such factors as the court deems appropriate.

              Applying this holding to the present case, the first factor we consider is the

amount of loss suffered by the victim. The victim stated that the defendant’s identity

theft prevented her from obtaining student loans, housing, transportation and

employment. While these damages are difficult to convert into a specific dollar amount,

it is abundantly clear that the victim has suffered substantial psychological and economic

damages as a result of the identity theft. As to the second factor, the defendant has not

argued that she lacks the financial resources to comply with the restitution order.

Similarly, the defendant has not argued that her financial needs or her earning ability

would prevent her from complying with the restitution order. Based on these factors, we

do not find that the circuit court abused its discretion by ordering the defendant to pay

$10,000.00 in restitution to the victim.




                                            17

             Finally, we find that the circuit court’s award of restitution to the victim is

consistent with the general rationale behind restitution as set forth by the United States

Supreme Court. In Kelly v. Robinson, 479 U.S. 36, 49 n.10 (1986), the Supreme Court

stated:

                     Restitution is an effective rehabilitative penalty
             because it forces the defendant to confront, in concrete terms,
             the harm his actions have caused. Such a penalty will affect
             the defendant differently than a traditional fine, paid to the
             State as an abstract and impersonal entity, and often
             calculated without regard to the harm the defendant has
             caused. Similarly, the direct relation between the harm and
             the punishment gives restitution a more precise deterrent
             effect than a traditional fine.

             Requiring the defendant to pay restitution to her daughter will force her to

“confront, in concrete terms” the significant harm her actions have caused her daughter to

suffer.



                                           IV.


                                    CONCLUSION


             For the reasons set forth above, the February 4, 2013, order of the Circuit

Court of Berkeley County is affirmed.



                                                                                 Affirmed.




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