                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS

State of West Virginia,
Plaintiff Below, Respondent                                                           FILED
                                                                                  October 11, 2019
vs) No. 18-1040 (Randolph County 18-F-90)                                          EDYTHE NASH GAISER, CLERK
                                                                                   SUPREME COURT OF APPEALS
                                                                                       OF WEST VIRGINIA
Emily Ann Swecker,
Defendant Below, Petitioner


                                MEMORANDUM DECISION


       Petitioner Emily Ann Swecker, by counsel Melissa T. Roman, appeals the Circuit Court of
Randolph County’s October 25, 2018, sentencing order. Respondent State of West Virginia, by
counsel Scott E. Johnson, submitted 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 was indicted on three counts of delivery of a controlled substance, a felony, in
violation of West Virginia Code § 60A-4-401(a)(ii) on June 26, 2018. She entered into a plea
agreement with the State whereby she agreed to plead guilty to two counts of delivery of a
controlled substance. In return, the State agreed to dismiss the remaining count in the indictment
and additional criminal charges pending against petitioner in Randolph County. Further, the State
agreed to remain silent with regard to sentencing.

        After the entry of petitioner’s plea, the probation officer completed a pre-sentence
investigation (“PSI”) report on petitioner. That PSI report addressed not only the two counts to
which petitioner pled guilty, but a lengthy adult criminal history. In her written statement,
petitioner admitted to possessing and selling “meth,” stating that while the “meth epidemic in
Elkins is terrible . . . that is no excuse . . . .” The PSI report further addressed her outstanding court
costs and fines, totaling almost $8,000. With regard to employment, the PSI report provided that
drug sales provided her with income for several years “and the money she made was so good she
never felt the need to obtain legitimate employment.” The probation officer concluded that
petitioner displayed little empathy or remorse for her impact on the community and characterized
petitioner as “almost proud of her accomplishments as a drug dealer.” He also found that petitioner
had not stated her desire to lead a life free of crime and that her actions in this case, years of drug
dealing, and criminal history show that fact clearly. One investigating and/or arresting officer
recommended to the circuit court that petitioner receive a split sentence of confinement followed

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by probation, while another recommended confinement in a jail or prison.

       During the sentencing hearing, the circuit court heard petitioner’s statement and the
argument in favor of alternative sentencing by petitioner’s counsel. It recognized not only the
charges that had been dismissed as a result of the plea agreement, but also the pending felony
charges in another county and convictions for a variety of offenses in several West Virginia
counties. The circuit court noted that petitioner was not a candidate for the drug court program
because that program does not permit the participation of those convicted of distribution charges.
By order entered October 25, 2018, petitioner was sentenced to a term of one to five years of
incarceration for each offense of delivery of a controlled substance in violation of West Virginia
Code § 60A-4-401(a)(ii). The circuit court ordered that the two sentences run consecutive to one
another and that petitioner enroll and participate in the Residential Substance Abuse Treatment for
State Prisoners Program (“RSAT”) through the West Virginia Division of Corrections and
Rehabilitation.1 Petitioner appeals from that order.

         At the outset, we note that 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. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997). Further, “[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.” Syl. Pt. 4, State v. Goodnight, 169 W. Va. 366, 287 S.E.2d 504 (1982).

        Petitioner argues that the circuit court erred by denying her request for probation or,
alternatively, home confinement. In support of her argument, petitioner asserts that her five months
of incarceration have “rehabilitated her character” and that she does not pose a risk to the
community. Despite the probation officer’s findings to the contrary, petitioner argues that she was
remorseful for her actions and demonstrated acceptance of responsibility, including
acknowledging the harm she caused to her family and community.

       As this Court recently set forth:

        [W]e have held that “[p]robation is a matter of grace and not a matter of right.”
       Syl. pt. 3, State v. Jones, 216 W. Va. 666, 610 S.E.2d 1 (2004). In other words, “a
       defendant convicted of a crime has no absolute right to probation.” State v. Loy, 146
       W. Va. 308, 318, 119 S.E.2d 826, 832 (1961). This is so because “[p]robation is
       not a sentence for a crime but instead is an act of grace upon the part of the State to
       a person who has been convicted of a crime.” Syl. pt. 2, State ex rel. Strickland v.
       Melton, 152 W. Va. 500, 165 S.E.2d 90 (1968). This is so because “probation [i]s
       ‘simply one of the devices of an enlightened system of penology which has for its
       purpose the reclamation and rehabilitation of the criminal.’ ” Id., 152 W. Va. at
       506, 165 S.E.2d at 94. Accordingly, “the decision as to whether the imposition of
       probation is appropriate in a certain case is entirely within the circuit court’s


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          On or about December 17, 2018, petitioner submitted a Rule 35(b) motion for
reconsideration of her sentence, again requesting an alternative sentence of probation and/or home
incarceration or an order changing her sentences from consecutive to concurrent. On December
21, 2018, the circuit court entered its order denying that motion.
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       discretion.” State v. Duke, 200 W. Va. 356, 364, 489 S.E.2d 738, 746 (1997). See
       also W. Va. Code § 62-12-3 (LexisNexis 2014) (granting court discretion to
       suspend sentence and release offender on probation); Duke, 200 W. Va. at 364, 489
       S.E.2d at 746 (“W. Va. Code § 62-12-3 specifies the discretionary nature of the
       circuit court’s authority to suspend either the imposition or execution of a sentence
       of incarceration and to place the defendant on a period of probation[.]”); State v.
       Miller, 172 W. Va. 718, 720, 310 S.E.2d 479, 481 (1983) (“[T]he matter of
       probation is within the sound discretion of the trial court.”).

Christopher H. v. Martin, 241 W. Va. 706, __, 828 S.E.2d 94, 98 (2019). During the sentencing
hearing, the circuit court addressed petitioner’s criminal history, spanning several West Virginia
counties, including felony charges pending in other counties at the time of petitioner’s sentencing.
It considered the findings and recommendations of the probation officer and law enforcement
officers. The circuit court also heard argument from petitioner’s counsel and a statement from
petitioner, and it carefully considered all of the above. Accordingly, we find that the circuit court
did not abuse its discretion in denying petitioner’s motion for alternative sentencing.

        Petitioner’s second assignment of error is that the circuit court erred by imposing
consecutive sentences, rather than concurrent sentences. She argues that while her offenses are
serious in nature, there was not a great impact on the community so the crimes did not warrant the
imposition of consecutive sentences. Therefore, she contends that the imposition of such sentences
was overly harsh and disproportionate to her conviction.

        West Virginia Code § 60A-4-401(a)(ii) provides for a penalty of imprisonment “for not
less than one year nor more than five years, or fined not more than fifteen thousand dollars, or
both.” This Court has long-recognized that when a defendant receives multiple convictions, a
circuit court judge has wide discretion in deciding whether to impose concurrent or consecutive
sentences. See State v. Allen, 208 W. Va. 144, 155, 539 S.E.2d 87, 98 (1999); Syl. Pt. 3, Keith v.
Leverette, 163 W. Va. 98, 254 S.E.2d 700 (1979) (“When a defendant has been convicted of two
separate crimes, before sentence is pronounced for either, the trial court may, in its discretion,
provide that the sentences run concurrently, and unless it does so provide, the sentences will run
consecutively.”). Additionally, it has been recognized that “‘[c]onsecutive sentences are an
appropriate mechanism for imposing a distinct punishment for each of two criminal acts.’” State
v. Holcomb, 178 W. Va. 455, 462, 360 S.E.2d 232, 239 (1987) (quoting United States v.
Lustig, 555 F.2d 751, 753 (9th Cir. 1977)). Petitioner’s sentences were within statutory limits.
Further, as set forth above, the circuit court considered a number of factors in imposing petitioner’s
sentence. Therefore, this Court concludes that the circuit court acted within its discretion in
imposing consecutive sentences and that such sentences are not excessive or cruel and unusual
punishment. Thus, we find that there is no merit to petitioner’s second assignment of error.

       For the foregoing reasons, we affirm.

                                                                                           Affirmed.

ISSUED: October 11, 2019



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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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