                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS


State of West Virginia,                                                            FILED
Plaintiff Below, Respondent                                                    November 8, 2019
                                                                                 EDYTHE NASH GAISER, CLERK
vs.) No. 18-0576 (Wood County 16-F-45)                                           SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA


Keith Irons,
Defendant Below, Petitioner



                               MEMORANDUM DECISION


        Petitioner Keith Irons, by counsel Courtney L. Ahlborn, appeals the Circuit Court of
Wood County’s May 22, 2018, order sentencing him to a one-to-five-year term of incarceration
for his conviction of one count of conspiracy to deliver a controlled substance. The State of West
Virginia, by counsel Scott E. Johnson, filed a response. On appeal, petitioner argues that the
circuit court erred in considering impermissible factors during sentencing.

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

       In January of 2016, petitioner was indicted on three counts of delivery of a controlled
substance, three counts of second-offense delivery of a controlled substance, and three counts of
conspiracy to deliver a controlled substance. In April of 2018, petitioner pled guilty to one count
of conspiracy to deliver a controlled substance.1

       1
           West Virginia Code § 61-10-31 provides that

       [a]ny person who violates the provisions of this section by conspiring to commit an
       offense against the state which is a felony . . . shall be guilty of a felony, and, upon
       conviction thereof, shall be punished by imprisonment in the penitentiary for not
       less than one nor more than five years or by a fine of not more than ten thousand
       dollars, or, in the discretion of the court, by both such imprisonment and fine.



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        The circuit court held a sentencing hearing in May of 2018. Petitioner requested
alternative sentencing and cited certain classes taken during his incarceration as evidence of his
rehabilitation. The State opposed alternative sentencing based on petitioner’s criminal history,
which included a recent federal conviction for delivery of heroin. The State argued that petitioner
was sentenced to probation for that federal conviction, and he violated the terms of that
probation. Before pronouncing petitioner’s sentence, the circuit court openly considered
petitioner’s criminal history and prior sentences:

          All right. I’m sure [petitioner] wishes on the prior case in 11-F-251 that he had
          successfully completed Anthony Center.2 He would have been a long ways better,
          in better shape than he is today, but he had been returned unfit, according to those
          records and according to the records of this Court. So he ended up sentenced on
          wanton endangerment and served a jail sentence for domestic battery on that same
          charge.

          And he was charged here locally, but then that was picked up by the federal
          authorities and he was prosecuted for distribution of heroin in Federal Case 2:14-
          CR000055-1. That’s where he is currently serving a sentence in federal custody for
          violation of his supervised release. So he does have a significant criminal history.

          The circuit court also considered information in petitioner’s presentence investigation
report:

          I see in [petitioner’s] statement, he tries to deflect blame to a co-defendant . . . but
          at least one case, the delivery was directly from [petitioner], as shown on page
          [three] of the pre-sentence report, and that he admonished the [confidential
          informant] not to come directly to him in the future, not to come to his house.
          Apparently, he usually delivered through an intermediary such as . . . one of his co-
          defendants. He also utilized [another] co-defendant . . . involved in the
          transactions. So these are very serious matters regarding heroin distribution in our
          area.

Upon these factors, the circuit court sentenced petitioner to a one-to-five-year term of
incarceration and ordered that it run consecutively to petitioner’s sentence for his federal
conviction. The circuit court entered the sentencing order on May 22, 2018. It is from this order
that petitioner now appeals.



         “Anthony Center” refers to the Anthony Correctional Center, which is a potential
          2

alternative sentence for adult offenders between the ages of eighteen and twenty-five. Offenders
are committed for a term of six months to two years and are released on probation if successful in
completing the program’s requirements.




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        This Court 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. Adams,
211 W. Va. 231, 565 S.E.2d 353 (2002) (citations omitted). We have also 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.”3 Syl. Pt. 4, State v. Goodnight, 169 W. Va. 366, 287
S.E.2d 504 (1982).
        On appeal, petitioner argues that two of the circuit court’s factors during sentencing were
impermissible. First, petitioner argues that the circuit court should not have considered that he
was deemed “unfit” for the Anthony Center. Petitioner asserts that he served his sentence
following his expulsion from the Anthony Center and the circuit court punished him twice for the
same crime in considering that information. We have previously held that a sentencing court may
consider a defendant’s prior criminal history and rehabilitative potential. See syl. pt. 2, State v.
Buck, 173 W. Va. 243, 314 S.E.2d 406 (1984) (holding that a sentencing court may consider
codefendants’ respective involvement in the crime, prior records, rehabilitative potential, and lack
of remorse). In this case, the circuit court considered petitioner’s prior opportunities for
alternative sentencing, namely the Anthony Center and probation for his federal conviction.
Petitioner’s failure to abide by those prior alternative sentences is relevant in sentencing petitioner
for his most recent conviction and not an impermissible factor. Petitioner is entitled to no relief in
this regard.

         Petitioner also argues that the circuit court erred in considering evidence related to the
crimes charged in the indictment, but for which he was not convicted.4 Petitioner avers that the
circuit court considered police reports included in the presentence investigation report as fact and
accused petitioner of delivery of a controlled substance. We find no error in the circuit court’s
consideration of this information. “[T]he trial court, in determining the character and extent of a
defendant’s punishment, may consider ‘the facts of the [crime] and may search anywhere, within
reasonable bounds, for other facts which tend to aggravate or mitigate the offense.’” State v.
Koon, 190 W. Va. 632, 641, 440 S.E.2d 442, 451 (1993) (quoting State v. Houston, 166 W. Va.
202, 208, 273 S.E.2d, 375, 378 (1980)). The circuit court reasonably relied on the narrative of the
crime provided in the presentence investigation report to gauge petitioner’s involvement in the
crime. Conspicuously, petitioner did not object to the presentence investigation report or any of
the information contained therein. Therefore, we do not find this information to be an
impermissible factor for the purpose of sentencing. Petitioner’s objection on appeal to the veracity
of this information is unpersuasive. Petitioner’s decision to plead guilty stunted the determination
of the facts through a trial and his rights related thereto. See Noble v. W. Va. Dep’t of Motor
Vehicles, 223 W. Va. 818, 821, 679 S.E.2d 650, 653 (2009) (“Our general rule is that
nonjurisdictional questions . . . raised for the first time on appeal, will not be considered.”)
(internal citations omitted). As such, we find no error in petitioner’s sentence.


       3
           Petitioner concedes that his sentence is within the statutory limits.
       4
           Notably, petitioner provides no legal authority to support this argument.




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       For the foregoing reasons, the circuit court’s May 22, 2018, sentencing order is hereby
affirmed.


                                                                                    Affirmed.

ISSUED: November 8, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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