                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS


                                                                                        FILED
State of West Virginia,                                                              February 11, 2013
Plaintiff Below, Respondent                                                       RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
vs.) No. 11-0493 (Wood County 09-F-189)

David Persons,

Defendant Below, Petitioner



                                  MEMORANDUM DECISION

       Petitioner’s appeal, by counsel Donald Adrian Hoosier II, arises from the Circuit Court of
Wood County, wherein he was re-sentenced by order entered on November 8, 2011. The State, by
counsel Thomas W. Rodd, has filed its 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 pled guilty to one count of fleeing from an officer in a vehicle, which was a
lesser included offense the charge he was indicted on, fleeing from an officer in a vehicle while
under the influence of alcohol. Petitioner requested probation or an alternative sentence, but was
sentenced to one year of incarceration. The circuit court found that an alternative sentence or
probation was not proper based on petitioner’s character and the likelihood of committing another
crime.

        “‘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,
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). Moreover, “‘[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


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       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).

        Petitioner argues on appeal that the circuit court erred in sentencing him to one year,
stating that the sentence “shocks the conscience” and that the court failed to consider mitigating
circumstances. Further, petitioner argues that the circuit court impermissibly considered a
separate charge for which petitioner was never convicted, and denied his due process rights by not
permitting him to review his pre-sentence investigation report. Finally, petitioner argues that
counsel below was ineffective in failing to fully explain the ramifications of petitioner’s guilty
plea.

        In response, the State argues that petitioner’s sentence is within statutory limits and is not
disproportionate. Further, the State argues that there is no evidence that the circuit court
considered any other charge against petitioner, nor is there evidence that petitioner was denied
access to his pre-sentence investigation. As to the claim of ineffective assistance of counsel, the
State argues that a habeas proceeding is the proper forum to litigate this claim.

        Upon our review, we find no abuse of discretion by the circuit court in sentencing
petitioner to one year of incarceration following his guilty plea. The sentence imposed was within
statutory limits and not based on an impermissible factor, nor was it disproportionate to the crime.
As to the claim of ineffective assistance of counsel, this Court finds that it does not possess a
sufficient record on which to determine the effectiveness of counsel. As such, this Court does not
address the merits of the ineffective assistance of counsel claim pursuant to State v. Frye, 221
W.Va. 154, 650 S.E.2d 574 (2006).

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



                                                                                           Affirmed.

ISSUED: February 11, 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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