                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

State of West Virginia,
Plaintiff Below, Respondent                                                           FILED
                                                                                   April 10, 2017
vs) No. 16-0169 (Hampshire County 15-F-88)                                         RORY L. PERRY II, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
Christopher Lee Haymond,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner Christopher Lee Haymond, by counsel William T. Rice, appeals the Circuit
Court of Hampshire County’s February 8, 2016, order sentencing him to seven terms of
incarceration of one to fifteen years following his conviction on seven counts of delivery of a
controlled substance. The State, by counsel David A. Stackpole, filed a response. On appeal,
petitioner argues that the circuit court erred in imposing consecutive sentences and that he
received ineffective assistance of counsel at trial.

        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 April and May of 2015, petitioner sold heroin and Oxycodone totaling over $1,000 to a
confidential informant over several occasions. Thereafter, petitioner was indicted on seven
counts of delivery of a controlled substance. In November of 2015, following a jury trial,
petitioner was found guilty of all seven counts in the indictment.

        In January of 2016, the circuit court held a sentencing hearing, during which it noted that
petitioner’s lengthy criminal history included criminal conduct in West Virginia, Virginia,
Maryland, Pennsylvania, and Florida, in addition to a pending felony fugitive warrant from
Virginia. The circuit court also noted that the Federal Bureau of Investigation maintained a file
on petitioner. Further, petitioner’s presentence investigation report noted a “very high risk” of
recidivism within one year. Moreover, the State presented the circuit court with evidence of
petitioner’s behavioral issues while incarcerated, including petitioner’s own admissions to
flooding the jail by breaking a sprinkler system and spraying an officer with his feces.
Ultimately, the circuit court sentenced petitioner to one to fifteen years of incarceration for each
individual count. The circuit court ordered that each of the five one to fifteen year sentences for
delivery of heroin were to run consecutively, while the two one to fifteen year sentences for


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delivery of Oxycodone were to run concurrently. 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 § 60A-4-401(a)(i) provides that
individuals convicted of the applicable crimes “may be imprisoned in the state correctional
facility for not less than one year nor more than fifteen years . . . .” Further, petitioner does not
allege that the circuit court based his sentence on any impermissible factor. Instead, petitioner
simply argues that the circuit court’s imposition of consecutive sentences violated his equal
protection rights because it subjected him to an excessive and disproportionate sentence. As
such, petitioner argues that the circuit court abused its discretion in imposing its sentence.
However, we find that these allegations do not entitle petitioner to the requested appellate
review.

       Next, petitioner argues that he received ineffective assistance of counsel because his
attorney refused to allow him to testify on his own behalf at trial. We have long held that

               [i]t is the extremely rare case when this Court will find ineffective
       assistance of counsel when such a charge is raised as an assignment of error on a
       direct appeal. The prudent defense counsel first develops the record regarding
       ineffective assistance of counsel in a habeas corpus proceeding before the lower
       court, and may then appeal if such relief is denied. This Court may then have a
       fully developed record on this issue upon which to more thoroughly review an
       ineffective assistance of counsel claim.

Syl. Pt. 10, State v. Triplett, 187 W.Va. 760, 421 S.E.2d 511 (1992). In a direct appeal, it is
difficult for this Court to determine “whether the attorney’s performance below was ineffective
or merely the result of trial strategy.” State v. Bess, 185 W.Va. 290, 293, 406 S.E.2d 721, 724
(1991). Further, this Court has cautioned that “[i]neffective assistance claims raised on direct
appeal are presumptively subject to dismissal.” State v. Miller, 197 W.Va. 588, 611, 476 S.E.2d
535, 558 (1996). Based on the record before this Court on direct appeal, we are unable to
determine whether trial counsel’s performance was ineffective or the result of trial strategy.
Therefore, we reject this assignment of error.

       For the foregoing reasons, the circuit court’s February 8, 2016, sentencing order is hereby
affirmed.

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                                          Affirmed.

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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