                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                      FILED
                                                                            November 14, 2016
vs) No. 15-1118 (Mercer County 11-F-83)                                         RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
Mark K. McBride,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner Mark K. McBride, by counsel Paul R. Cassell, appeals the Circuit Court of
Mercer County’s August 20, 2015, order sentencing him to a term of incarceration of ten to
eighteen years for one count of second-degree robbery, in violation of West Virginia Code § 61­
2-12.1 The State of West Virginia, by counsel Julie A. Warren, filed a response in support of the
circuit court’s order. Petitioner filed a reply. On appeal, petitioner argues that the circuit court
violated his federal and state constitutional rights to be free from cruel and unusual punishment
by sentencing him to a prison term disproportionate to the character and degree of the underlying
crime.

       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 affirming the order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.

        In February of 2011, the Mercer County grand jury indicted petitioner on one count of
first-degree robbery. This charge stemmed from an incident in which petitioner forcibly removed
the victim from her vehicle and drove away.

       Following a jury trial, petitioner was convicted of second-degree robbery. The State filed
a recidivist information asserting that petitioner was previously convicted of possession of a
deadly weapon on the premises of an educational facility. Petitioner’s recidivist trial commenced
in September of 2011, and the jury found that petitioner was the person named in the recidivist
information and was a recidivist. The circuit court immediately sentenced petitioner to a term of
incarceration of five to eighteen years for his conviction of second-degree robbery, and pursuant


       1
        The circuit court enhanced petitioner’s sentence pursuant to West Virginia Code § 61­
11-18(a).


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to the recidivist statute, enhanced petitioner’s sentence for a cumulative sentence of ten to
eighteen years of incarceration. This appeal followed.

          On appeal, petitioner’s sole assignment of error is that the circuit court violated his
constitutional rights to be free from cruel and unusual punishment because his cumulative prison
term of ten to eighteen years is disproportionate to the underlying crime, pursuant to the Eighth
Amendment to the United States Constitution2 and Article III, Section 5 of the West Virginia
Constitution.3 See Syl. Pt. 5, State v. Cooper, 172 W.Va. 266, 304 S.E.2d 851 (1983)
(“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. 8, State v. Vance, 164 W.Va. 216, 262 S.E.2d 423 (1980) (“Article III,
Section 5 of the West Virginia Constitution, which contains the cruel and unusual punishment
counterpart to the Eighth Amendment of the United States Constitution, has an express statement
of the proportionality principle: ‘Penalties shall be proportioned to the character and degree of
the offence.’”).

        This Court generally “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). However, in addressing our limitations on appellate review of
statutory criminal sentences, we have stated that “[s]entences imposed under statutes providing
no upper limits may be contested based upon allegations of violation of the proportionality
principles contained in Article III, Section 5 of the West Virginia Constitution.” State v. Tyler,
211 W.Va. 246, 250, 565 S.E.2d 368, 372 (2002) (citing State v. Rogers, 167 W.Va. 358, 360,
280 S.E.2d 82, 84 (1981)). The statute under which petitioner was sentenced for second-degree
robbery, West Virginia Code § 61-2-12, provides for an upper limit of incarceration of eighteen
years. Petitioner’s sentence does not exceed the statutory maximum. As such, petitioner’s
sentence for this crime is not reviewable on direct appeal. See also Syl. Pt. 10, State v. Payne,
225 W .Va. 602, 694 S.E.2d 935 (2010) (stating 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.’ Syl. Pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982)).”).



       2
         The federal prohibition of cruel and unusual punishment provides that “[e]xcessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
U.S. Const. Amend. VIII.
       3
       Article III, Section 5 of the West Virginia Constitution forbids the imposition of cruel
and unusual punishment and disproportionate penalties:

       Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
       unusual punishment inflicted. Penalties shall be proportioned to the character and
       degree of the offence. No person shall be transported out of, or forced to leave the
       State for any offence committed within the same . . . .
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        Additionally, the Court finds no error in the circuit court’s denial of petitioner’s request
for alternative sentencing. As we have previously noted, “‘[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. 2, State v. Hosby, 220 W.Va. 560, 648 S.E.2d 66 (2007). In the instant matter, it is clear
that petitioner was not entitled to alternative sentencing as evidenced by his criminal history,
which includes possession of a deadly weapon, violating a domestic violence protection order,
battery, receiving a stolen vehicle by means of carjacking, and driving under the influence.
Petitioner also previously violated conditions of his parole in 2008. Finally, petitioner had
recently been indicted on three counts of delivery of a schedule II controlled substance in
Summers County. As such, the Court finds no error in the circuit court’s denial of petitioner’s
request for alternative sentencing or in the sentence imposed.

       For the foregoing reasons, the circuit court’s August 20, 2015, order, is hereby affirmed.


                                                                                         Affirmed.

ISSUED: November 14, 2016

CONCURRED IN BY:

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




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