                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



Robert McFarland,                                                                   FILED
                                                                                   June 24, 2013
Petitioner Below, Petitioner                                                  RORY L. PERRY II, CLERK

                                                                            SUPREME COURT OF APPEALS

vs) No. 12-1105 (Ohio County 10-C-241)                                          OF WEST VIRGINIA




David Ballard, Warden,
Respondent Below, Respondent


                               MEMORANDUM DECISION
       Petitioner Robert McFarland, by counsel Mark D. Panepinto, appeals the Circuit Court of
Ohio County’s order entered on August 8, 2012, denying habeas relief. Respondent Warden, by
counsel Andrew Mendelson, filed a response.

       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.

        Petitioner and his co-defendant broke into a home after punching the owner to gain entry
in an attempt to steal pain medication. A female co-defendant stayed behind in the car. Petitioner
was carrying a loaded sixteen gauge shotgun, which he later used to hit one of the victims.
During the robbery, there were two adults in the house, one male and one female, and two
children. The male adult was severely beaten. Petitioner hit him with the butt of the shotgun and
the co-defendant beat him with his fists. Petitioner fled the home on foot when police arrived,
later swam across the Ohio River and eventually was apprehended by police in Ohio. Petitioner
pled guilty to first degree robbery on April 1, 2009, after a jury was selected, and filed a petition
for treatment under the Youthful Offender Act on May 4, 2009, alleging that he was eighteen
years old at the time of the crime and had no prior felony convictions.

        On June 6, 2009, the circuit court rejected petitioner’s petition for treatment as a youthful
offender. Petitioner was sentenced to seventy years of incarceration on July 9, 2009. Petitioner’s
co-defendant received seventy-five years of incarceration, and the female co-defendant received
one to five years of incarceration. The judge noted at sentencing that “in all my years of being a
judge, this, and possibly some murder cases and sexual assault of infants, this is one of the worst
factual crimes that I’ve heard, and it calls for the most serious of punishments.” Petitioner’s
direct appeal was refused on November 18, 2009. On June 7, 2010, petitioner filed a motion for
reconsideration of sentence pursuant to Rule 35 of the West Virginia Rules of Criminal
Procedure, which was denied.

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        Petitioner then filed a petition for a writ of habeas corpus along with amendments. The
petition was denied by orders entered on September 9, 2011, and August 8, 2012. The order
dated September 9, 2011, concluded that petitioner had received the effective assistance of
counsel, as the circuit court found that the record was replete with evidence showing that
petitioner was fully informed of the consequences of pleading guilty in this action. Moreover, the
court noted that petitioner’s counsel had specifically informed him in writing that he expected
petitioner’s sentence to be between forty and eighty years of incarceration. An amended order
denying habeas relief was entered on August 8, 2012, because the prior order had not addressed
all issues presented in the habeas petition.1 The circuit court reiterated the prior order’s findings
on ineffective assistance of counsel relating to the plea agreement and sentencing. Moreover, the
court found that the sentence was not disproportionate. Finally, the court found that petitioner
failed to meet his burden of proof that the court abused its discretion in failing to sentence
petitioner as a youthful offender.

       This Court reviews appeals of circuit court orders denying habeas corpus relief under the
following standard:

       “In reviewing challenges to the findings and conclusions of the circuit court in a
       habeas corpus action, we apply a three-prong standard of review. We review the
       final order and the ultimate disposition under an abuse of discretion standard; the
       underlying factual findings under a clearly erroneous standard; and questions of
       law are subject to a de novo review.” Syllabus point 1, Mathena v. Haines, 219
       W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).

        First, petitioner argues that although use of the Youthful Offender Act is within the
court’s discretion as per State v. Allen, 208 W.Va. 144, 157, 539 S.E.2d 87, 100 (1999), the court
abused its discretion herein by not sentencing him under the Act. However, this Court has stated
as follows:

       Just as a trial court's decision to grant or deny probation is subject to the
       discretion of the sentencing tribunal, so too is the decision whether to sentence an
       individual pursuant to the Youthful Offenders Act. The determinative language of
       West Virginia Code § 25–4–6 is stated indisputably in discretionary terms: “[T]he
       judge of any court . . . may suspend the imposition of sentence . . . and commit the
       young adult to the custody of the West Virginia commissioner of corrections to be
       assigned to a center.” Id. (emphasis supplied). Since the dispositive statutory term
       is “may,” there can be no question that the decision whether to invoke the
       provisions of the Youthful Offenders Act is within the sole discretion of the
       sentencing judge. See State v. Allen, 208 W.Va. 144, [157], 539 S.E.2d 87, [100]
       (1999) (recognizing that “[c]lassification of an individual as a youthful offender
       rests within the sound discretion of the circuit court”); accord State v. Richards,

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           A different circuit court judge entered the amended order.
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       206 W.Va. 573, 575, 526 S.E.2d 539, 541 (1999) (stating that Youthful Offenders
       Act “grants discretionary authority to the circuit courts to suspend imposition of
       sentence, and place a qualifying defendant in a program of rehabilitation at a
       youthful-offender center”) (citation omitted).

State v. Shaw, 208 W.Va. 426, 430, 541 S.E.2d 21, 25 (2000). This Court finds no abuse of
discretion. The record shows that when sentencing petitioner, the circuit court considered the
violent manner in which this crime was committed, finding that this was one of the most violent
crimes to ever come before him. The choice of whether to sentence petitioner under this Act was
within the circuit court’s discretion and this Court finds no reason to disturb the decision.

       Petitioner’s next assignments of error both deal with the sentence imposed. Petitioner
argues that a sentence of seventy years is excessive and disproportional to the character and
degree of the offense in violation of Article III, Section 5 of the West Virginia Constitution and
the Eighth Amendment to the United States Constitution. He also argues that he was denied
equal protection of the law given the trial court’s improper consideration that petitioner was a
resident of Ohio in imposing sentence.

        This Court has 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. 6, State v.
Slater, 222 W.Va. 499, 665 S.E.2d 674 (2008). However, this Court has held as follows:

       Punishment 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). Upon review of the record,
the circuit court sentenced petitioner within the statutory limit and the sentence was not based
upon any impermissible factor. Petitioner’s argument that he was sentenced more harshly as a
non-resident of West Virginia is also without merit. The circuit court simply stated his hope for a
deterrent effect to put others on notice of the consequences of violating the citizens of Ohio
County’s expectation of safety in their home. Finally, the punishment herein is not
disproportionate. One of petitioner’s co-defendants was sentenced to greater incarceration than
petitioner. In addition, petitioner will be parole-eligible after serving a quarter of his sentence
rather than one-third, making him eligible for parole after seventeen and one-half years and able
to discharge his sentence after thirty-five years if he receives good time credit.

       For the foregoing reasons, we affirm.

                                                                                              Affirmed.




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ISSUED: June 24, 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




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