                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



State of West Virginia,                                                            FILED
                                                                                  June 24, 2013
Plaintiff Below, Respondent                                                  RORY L. PERRY II, CLERK

                                                                           SUPREME COURT OF APPEALS

vs) No. 12-0878 (Jackson County 11-F-103 & 11-F-122)                           OF WEST VIRGINIA




Jason A. Ray,

Defendant Below, Petitioner



                              MEMORANDUM DECISION
       Petitioner Jason A. Ray, by counsel Kevin Postalwait, appeals the Circuit Court of
Jackson County’s sentencing order entered on June 22, 2012. Respondent State of West Virginia,
by counsel Andrew D. Mendelson, has 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 pled guilty to one count of delivery of a controlled substance (oxycodone) and
one count of delivery of a controlled substance (hydrocodone). Pursuant to the plea agreement,
one count of delivery of marijuana and one count of conspiracy to commit delivery of a
controlled substance were dismissed. Petitioner was placed on home incarceration for 392 days
prior to sentencing, and he had no violations. On June 22, 2012, the circuit court entered an order
sentencing petitioner to one to five years of incarceration for the delivery of a controlled
substance (hydrocodone) and one to fifteen years of incarceration for delivery of a controlled
substance (oxycodone), to be served consecutively. The court recommended petitioner be
allowed to participate in the Division of Corrections Long-Term Residential Substance Abuse
Treatment (RSAT) program.

        On appeal, petitioner argues that he should have been granted an alternative sentence
based upon his limited criminal history and his lack of violations while on home incarceration.
Moreover, he argues that his sentence was disproportionate, and that he should have been
allowed to complete inpatient rehabilitation instead of being incarcerated.
        “‘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

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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 our review, we find no
abuse of discretion by the circuit court in petitioner’s sentences following his guilty plea. The
sentences imposed were within statutory limits and not based on an impermissible factor, nor
were they disproportionate to the crimes. Importantly, petitioner benefitted from the dismissal of
two counts pursuant to his plea agreement. Therefore, we find no error in the circuit court’s
sentencing order.

       For the foregoing reasons, we affirm.

                                                                                              Affirmed.

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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