                             STATE OF WEST VIRGINIA 

                           SUPREME COURT OF APPEALS


State of West Virginia,                                                              FILED
Plaintiff Below, Respondent
                                                                                 March 23, 2018
                                                                                EDYTHE NASH GAISER, CLERK
vs.) No. 17-0195 (Morgan County 05-F-70)                                        SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
John W. Payne, 

Defendant Below, Petitioner



                               MEMORANDUM DECISION
        Petitioner John W. Payne, by counsel Ben J. Crawley-Woods, appeals the Circuit Court
of Morgan County’s January 30, 2017, order revoking his supervised release and sentencing him
to twenty-four years of incarceration. The State of West Virginia, by counsel Shannon Frederick
Kiser, filed a response in support of the circuit court’s order. On appeal, petitioner argues that the
circuit court’s sentence is unconstitutionally disproportionate, that the circuit court disregarded
his low level of intelligence as a mitigating factor, and that it erroneously interpreted the
conditions of his supervised release.

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

        In 2006, petitioner pled no contest to third-degree sexual assault and was sentenced to an
indeterminate term of one to five years of incarceration. The circuit court also imposed a thirty-
year-term of supervised release following the discharge of his prison sentence, which included
various terms and conditions.

        On January 31, 2011, a probation officer (“PO”) filed a “Petition for Revocation of
Supervised Release” alleging that petitioner violated the terms and conditions of his supervised
release by operating a motor vehicle without a valid operator’s license and without his PO’s
permission, having contact with minor children, providing false information to his PO, and
possessing weapons. The circuit court held a hearing on this petition, and petitioner admitted to
several of the allegations, including those relative to the motor vehicle operation, having contact
with minors, and possessing weapons. Accordingly, the circuit court revoked petitioner’s
supervised release, sentenced him to five years of incarceration, and imposed the balance of his
thirty-year supervised release term upon discharge of his prison sentence.



                                                  1

        A PO filed a second “Petition for Revocation of Supervised Release” on July 16, 2015.
The PO alleged that petitioner failed to attend multiple counseling sessions; failed to pay money
owed to a licensed polygrapher and therapist; provided false information concerning a Facebook
account, internet access, and cellular telephone service; failed to provide his PO with a list of
computer equipment he used; and failed to make payments toward his court costs, drug testing
costs, and supervision fees. The circuit court held a hearing on this second petition. In addition to
other evidence taken, petitioner admitted to being deceptive about his internet, cell phone, and
Facebook use. The circuit court, therefore, revoked petitioner’s supervised release, sentenced
him to one year in prison, and imposed the remainder of his thirty-year supervised release term.

        On October 13, 2016, a PO filed a third “Petition for Revocation of Supervised Release.”
The PO alleged that petitioner failed to provide requested documentation concerning his
prescription medication; established an e-mail account without approval; accessed the internet or
sent e-mails without permission approximately fifty-nine times; received pornographic images
via e-mail; solicited prostitution multiple times; provided false information to his PO; failed to
notify his PO of a newly-acquired cellular telephone; visited sexually-explicit websites; and
failed to make payments toward court costs, drug testing costs, and supervision fees. The petition
also alleged that petitioner’s internet access and e-mailing were directed toward coordinating
sexual encounters, and in attempting to contact these individuals, petitioner failed to disclose his
conviction or status as a sex offender. Furthermore, petitioner’s sexual offender treatment
therapist reported that petitioner had not “dropped the victim stance” and “believe[d] himself to
be unjustly caught in the system[.]” As a result, petitioner’s sexual offender treatment therapist
stated that petitioner had not “substantially progressed” over the past several years and that
petitioner was in need of a “higher level of care” than the therapist could provide.

        Following the filing of this third petition for revocation, petitioner moved for a mental
examination to determine his ability to comprehend the nature of the proceedings against him.
The circuit court granted this motion. The psychological evaluation revealed that, although
petitioner had an IQ of 73, he was able to consult with his lawyer and understand the proceedings
against him. The evaluator also noted a high degree of malingering.

        The circuit court held a hearing on the third petition for revocation. Petitioner admitted to
many of the violations alleged in the third petition, including using a new cell phone without
providing notice, e-mailing without permission, and using the internet without permission. The
circuit court reviewed petitioner’s psychological evaluation and found “no intellectual deficiency
in the [petitioner] sufficient to explain the violations” and that petitioner had been deceptive
during his evaluation. The circuit court further noted petitioner’s prior supervised release
revocations for similar behaviors and the fact that petitioner’s “continued denial of being a sex
offender puts society at risk that he might repeat the behavior.” Accordingly, the circuit court
revoked petitioner’s supervised release and sentenced him to twenty-four years of incarceration,
which represented the balance of his supervised release term. These rulings were memorialized
in an order entered on January 30, 2017. It is from this order that petitioner appeals.

        “‘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,



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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).

        Petitioner first argues on appeal that his sentence is unconstitutionally disproportionate.1
Petitioner contends that his twenty-four-year sentence shocks the conscience because his
underlying offense, third-degree sexual assault, is punishable by only one to five years of
imprisonment. Petitioner argues that none of his supervised release violations amounts to a
crime, except for soliciting prostitution; however, even if convicted of such, he would only have
been sentenced to sixty days to six months in the county jail and fined. Petitioner further
acknowledges the terms of supervised release prohibited him from possessing obscene material
and that the conversations directed toward sexual companionship “approach[ed] the level of
obscene matter[,]” but he highlights that he made no attempt to contact any minors since his first
revocation petition. Petitioner also argues that although the statutory penalties for crimes
analogous to his technical supervised release violations amount to a maximum of five years of
incarceration, the circuit court sentenced him to nearly five times that amount. In short, petitioner
argues that his sentence is both subjectively and objectively disproportionate because the
statutory penalty for similar conduct would amount to a fraction of petitioner’s sentence for non-
criminal supervised release violations.

        “A criminal sentence may be so long as to violate the proportionality principle implicit in
the cruel and unusual punishment clause of the Eighth Amendment to the United States
Constitution.” Vance, 164 W.Va. at 217, 262 S.E.2d at 425, Syl. Pt. 7. There are two tests for
determining whether a sentence is so disproportionate to the crime that it violates Article III,
Section 5 of the West Virginia Constitution. “The first 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.” State v. Adams, 211 W.Va. 231, 233, 565 S.E.2d 353, 355 (2002) (citation
omitted). To determine whether a sentence shocks the conscience, this Court considers all of the
circumstances surrounding the offense. Id. If a sentence is found not to shock the conscience, this
Court proceeds to the objective test. Under the objective test, to determine whether a sentence
violates the proportionality principle, “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 232, 565 S.E.2d at 354, Syl. Pt. 2, in part.

       West Virginia Code § 62-12-26(a), governing supervised release for certain sex
offenders, provides that

       [n]otwithstanding any other provision of this code to the contrary, any defendant
       convicted after the effective date of this section of a violation of section twelve,


       1
        “Article 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).
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       article eight, chapter sixty-one of this code or a felony violation of the provisions
       of article eight-b, eight-c or eight-d of said chapter shall, as part of the sentence
       imposed at final disposition, be required to serve, in addition to any other penalty
       or condition imposed by the court, a period of supervised release of up to fifty
       years[.]

We have previously explained that, “[f]undamentally, the statute provides that a court impose a
period of extended supervision as part of the criminal sentence for certain specified offenses, and
sets forth the manner in which the supervision is to be administered and enforced.” James, 227
W.Va. at 414, 710 S.E.2d at 105.

      Moreover, “a court may modify, terminate or revoke any term of supervised release
imposed[.]” W.Va. Code § 62-12-26(a). Specifically, a court may

       [r]evoke a term of supervised release and require the defendant to serve in prison
       all or part of the term of supervised release without credit for time previously
       served on supervised release if the court, pursuant to the West Virginia Rules of
       Criminal Procedure applicable to revocation of probation, finds by clear and
       convincing evidence that the defendant violated a condition of supervised release,
       except that a defendant whose term is revoked under this subdivision may not be
       required to serve more than the period of supervised release[.]

Id. at § 62-12-26(g)(3).

        We find that petitioner’s post-revocation sentence does not violate our constitutional
proportionality principle. In State v. Hargus, 232 W.Va. 735, 753 S.E.2d 893 (2013), we held
that a five-year post-revocation sentence did not violate our constitutional proportionality
principle under the subjective test. In that case, Mr. Hargus served an initial two-year sentence
for possessing material depicting minors engaged in sexually explicit conduct. Id. at 743, 753
S.E.2d at 901. Mr. Hargus was then placed on supervised release, which he violated by failing to
register as a sex offender as required. Id. As a result, he was sentenced to a post-revocation
period of incarceration of five years. Id. In challenging this sentence on proportionality grounds,
Mr. Hargus argued, among other things, that his supervised release was revoked “based solely on
a technical violation of a condition of supervised release.” Id. at 744, 753 S.E.2d at 902. We
upheld the five-year sentence despite the fact that Mr. Hargus’s crime did not involve sexual
contact. Id. We also found unavailing Mr. Hargus’s argument that his violation of supervised
release was only “technical” because his violation “indicate[d] a pattern of dishonesty.” Id.

        Here, petitioner’s underlying crime did involve sexual contact. Not only that, but
petitioner fails to appreciate the wrongfulness of his conduct in his persistent denial of being a
sex offender, which the circuit court found “puts society at risk that he might repeat the
behavior.” Moreover, we upheld the five-year sentence in Hargus after Mr. Hargus’s first
supervised release violation. Id. at 743, 753 S.E.2d at 901. Petitioner, however, has violated the
terms and conditions of his supervised release twice before, and the subject revocation alleged a
significant number of violations, including violations establishing a pattern of dishonesty. Due to
the seriousness of petitioner’s underlying crime and the fact that a five-year post-revocation

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sentence following a first violation does not violate the proportionality principle, we find that
petitioner’s post-revocation sentence does not shock the conscience of the court and society.

        We note that petitioner has failed to meaningfully address the objective proportionality
test. Although petitioner identifies the punishments for crimes analogous to his supervised
release violations, he has failed to offer analysis of the nature of his underlying offense of third-
degree sexual assault, the legislative purpose behind the punishment, a comparison of the
punishment with what would be inflicted in other jurisdictions, or a comparison of the
punishment for third-degree sexual assault with other offenses within the same jurisdiction.2
Thus, petitioner has failed to establish that his sentence is disproportionate under the objective
test. See Hargus, 232 W.Va. at 744, 753 S.E.2d at 902 (“Second, this Court finds that Mr.
Hargus’s post-revocation sanctions do not violate the objective test for constitutional
disproportionality. In sum, Mr. Hargus has failed to specifically address how the nature of the
offense, the legislative purpose behind the punishment, and a comparison with other offenses
within the same jurisdiction compels the finding that his post-revocation sanctions violate our
constitution’s proportionality principle.”); see also State, Dep’t of Health & Human Res. v.
Robert Morris N., 195 W.Va. 759, 765, 466 S.E.2d 827, 833 (1995) (“[a] skeletal ‘argument’,
really nothing more than an assertion, does not preserve a claim[.]”)

        Petitioner’s second assignment of error is that the circuit court erroneously disregarded
petitioner’s low intelligence level as a mitigating factor. Petitioner argues that, “[e]ven if he were
a smart man, it would be easy to make a mistake in efforts to comply with the onerous and
sometimes inconsistent requirements of sex offender registration statutes and the plethora of non-
statutory conditions of supervised release.”

        Petitioner’s psychological evaluation revealed no impediment to his ability to understand
his supervised release revocation proceedings. It did reveal, however, that petitioner exaggerated
responses and was deceptive. Moreover, the circuit court did not disregard petitioner’s low
intelligence. Rather, the court considered it but found that any intellectual deficiency failed to
explain the violations. Accordingly, we find no merit to this assignment of error.

        Petitioner’s final assignment of error is that the circuit court erroneously interpreted
petitioner’s obligation to “notify any third-parties of risks that may be occasioned by the
[d]efendant’s criminal record or personal characteristics as directed by the Probation Officer” to
require him to disclose his status as a sex offender during any initial communication with a third-
party. Petitioner contends that this erroneous interpretation “contributed to the abuse of
discretion in imposing” petitioner’s sentence.


       2
         “[A] post-revocation sanction simply is a continuation of the legal consequences of a
defendant’s original crime. In other words, it is part of a single sentencing scheme arising from
the defendant’s original conviction.” Hargus, 232 W.Va. 743, 753 S.E.2d at 901. Thus,
petitioner’s argument concerning the punishments for crimes analogous to the violations he
committed does not fully address this factor. For this reason, we also decline petitioner’s request
to hold that a circuit court “must consider the associated, potential criminal penalties for a
person’s alleged violations of supervised release in determining a constitutionally sound
imposition of supervised release incarceration upon such violations.”
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        We find no merit to this assignment of error. Petitioner admitted to multiple violations,
including obtaining and using a new cell phone without providing notice to his probation officer,
e-mailing without permission on multiple occasions, and using the internet without permission
on multiple occasions.3 Simply, sufficient justification for revoking his supervised release and
imposing the twenty-four-year sentence exists in the record. Accordingly, we find that the circuit
court did not abuse its discretion in sentencing petitioner.

        For the foregoing reasons, the circuit court’s January 30, 2017, order sentencing
petitioner to twenty-four years of incarceration is hereby affirmed.


                                                                                       Affirmed.

ISSUED: March 23, 2018

CONCURRED IN BY:

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




       3
        Although petitioner does not raise a First Amendment challenge to his supervised release
condition concerning his internet access, we nonetheless observe that this condition is not overly
broad because it is not a complete bar to access. Rather, petitioner needed only to obtain prior
written permission from his PO to use sites that could “provide[] him access to external lines of
communication.” Thus, this condition does not run afoul of Packingham v. North Carolina, 137
S.Ct. 1730, 198 L.E.2d 273 (2017) (striking down a law prohibiting registered sex offenders
from “access[ing] social networking Web site[s] where the sex offender knows that the site
permits minor children to become members or to create or maintain personal Web pages” as an
overbroad restriction on First Amendment rights); see also Mutter v. Ross, No. 16-1156, --
W.Va. --, -- S.E.2d -- (W.Va. Mar. 12, 2018).
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