                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

State of West Virginia,
Plaintiff Below, Respondent                                                           FILED
                                                                                   April 10, 2017
vs) No. 16-0352 (Wirt County 15-F-2)                                                RORY L. PERRY II, CLERK
                                                                                  SUPREME COURT OF APPEALS
                                                                                      OF WEST VIRGINIA
Brian Richard Wilson,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner Brian Richard Wilson, by counsel G. Bradley Frum, appeals the Circuit Court
of Wirt County’s March 15, 2016, order sentencing him to a term of incarceration of one to five
years for his conviction of one count of unlawful assault. The State, by counsel Nic Dalton, filed
a response. On appeal, petitioner argues that the circuit court erred in denying his request for
alternative 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, this 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 October of 2014, petitioner shot his neighbor in the thigh with a pellet gun after the
two engaged in an argument. The pellet penetrated the victim’s upper thigh near the groin, which
required treatment at a local hospital. According to respondent, the victim could have died had
the pellet struck him an inch or two in either direction, as it could have struck the femoral artery.
Following his indictment on one count of malicious assault, petitioner failed a drug test while on
bond. Eventually, petitioner pled guilty to one count of unlawful assault.

        The circuit court held its first sentencing hearing in December of 2015. At that time, the
circuit court continued sentencing until February of 2016 to allow petitioner an opportunity to
maintain sobriety in support of his request for alternative sentencing. After continuing the
February of 2016 hearing due to inclement weather, the circuit court held the continued
sentencing hearing in March of 2016. At the hearing, the circuit court heard evidence that
petitioner passed three drug tests over a period of sixty days. Accordingly, petitioner argued for
the imposition of alternative sentencing in the form of either probation or home incarceration.
However, the circuit court declined to impose alternative sentencing and, instead, sentenced
petitioner to a term of incarceration of one to five years. According to the circuit court, it based
the decision upon petitioner’s extensive criminal history, which includes a conviction for


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robbery, and the fact that he previously had both probation and home incarceration revoked,
among other factors. It is from the sentencing order that petitioner appeals.

        We have previously held that “[t]he Supreme Court of Appeals reviews sentencing orders
. . . under a deferential abuse of discretion standard, unless the order violates statutory or
constitutional commands.’ Syllabus Point 1, in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d
221 (1997).” Syl. Pt. 2, State v. Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010). Moreover, we
have 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. 2, State v. Booth, 224 W.Va. 307,
685 S.E.2d 701 (2009).

        On appeal to this Court, petitioner does not allege that his sentence exceeds the bounds of
the applicable statute. On the contrary, the record clearly shows that petitioner was sentenced
within the applicable statutory limits, as West Virginia Code § 61-2-9(a) provides that any
person found guilty of unlawful assault “shall . . . be in a state correctional facility not less than
one nor more than five years.” Petitioner does argue, however, that the circuit court
inappropriately based its sentence on the allegation that he fired a second shot at the victim.
According to petitioner, this was an inappropriate factor upon which to base his sentence because
it was contradicted by petitioner, a witness, and law enforcement’s investigation. The Court does
not agree. While the record shows that there is conflicting evidence regarding this issue, it is
clear that the victim stated that petitioner fired a second shot. This information was contained in
the presentence investigation report and does not constitute an impermissible factor upon which
to base sentencing.

        Petitioner further argues that the circuit court abused its discretion in denying his request
for alternative sentencing because his robbery conviction was remote and he established his
ability to comply with the terms of an alternative sentence by providing negative drug screens.
However, petitioner cites to no authority that would bar the circuit court from considering his
robbery conviction simply because it occurred twenty years before his current conviction.
Moreover, petitioner ignores the fact that the circuit court also considered that in separate
criminal proceedings, petitioner was sentenced to probation and home incarceration,
respectively, and both were revoked due to his inability to comply with the terms thereof. Simply
put, none of the arguments petitioner asserts on appeal show that the circuit court relied upon an
impermissible factor in imposing its sentence. Accordingly, petitioner is not entitled to appellate
review. Further, we have held that “‘[p]robation is a matter of grace and not a matter of right.’
Syllabus Point 1, State v. Rose, 156 W.Va. 342, 192 S.E.2d 884 (1972).” Syl. Pt. 3, State v.
Jones, 216 W.Va. 666, 610 S.E.2d 1 (2004). As such, we find no abuse of discretion in the
circuit court denying petitioner’s request for alternative sentencing and, similarly, we find no
error in the circuit court’s sentence.

       For the foregoing reasons, the circuit court’s March 15, 2016, sentencing order is hereby
affirmed.


                                                                                           Affirmed.

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ISSUED: April 10, 2017

CONCURRED IN BY:

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




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