                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS


                                                                                     FILED
State of West Virginia,                                                             October 1, 2013
Plaintiff Below, Respondent                                                     RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
vs) No. 12-1282 (Boone County 01-F-116)

Victor Paul Fowler,
Defendant Below, Petitioner

                                  MEMORANDUM DECISION

        Petitioner’s appeal, by counsel D. Adrian Hoosier, II, arises from an order entered
September 12, 2012, in the Circuit Court of Boone County, wherein his sentence was re-entered
to permit him to seek an appeal. Petitioner was sentenced by order entered September 25, 2001, to
fifteen to thirty-five years of incarceration for each of two counts of first degree sexual assault, to
be served consecutively. The State, by counsel Scott Johnson, has filed its response. On appeal,
petitioner argues that the circuit court erred in permitting him to enter a guilty plea without an
evaluation of his mental faculties. He also asserts that the circuit court erred in denying
petitioner’s motion for reconsideration of his sentence.

       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.

        In February of 2001, petitioner sexually assaulted two children. Petitioner later waived his
right to a preliminary hearing and, on April 18, 2001, he agreed to an information charging him to
two counts of first degree sexual assault. Also on that date, petitioner entered into a plea
agreement for the same charges. In the written statement to accept his guilty plea, petitioner
agreed that he was literate and that, although he had been treated for mental illness, he was not
under a physician’s care at that time, nor under the influence of medications. On April 30, 2001,
the circuit court ordered petitioner to undergo a pre-sentencing evaluation to determine whether
treatment for sexual abuse counseling was necessary. The plea agreement was entered by the
circuit court on May 2, 2001; in exchange for petitioner’s plea, the State agreed not to prosecute
him for other crimes arising out of the assaults. During that hearing, petitioner’s counsel indicated
that the pre-sentencing evaluation had not yet occurred, but did not move to contest the plea deal.
At sentencing, on July 20, 2001, the circuit court sentenced petitioner to fifteen to thirty years of
incarceration, to be served consecutively, for each of the two charges. Petitioner’s trial counsel
argued for treatment at the Anthony Correctional Center for young adult offenders, based on the
testimony of a physician in support of treatment. The circuit court, however, determined that

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treatment at that facility was not appropriate for petitioner, due to the nature of his crimes, but that
he should receive psychiatric treatment at the Mount Olive Correctional Facility. On September
25, 2001, petitioner moved for reconsideration of his sentence, arguing that he was not receiving
the psychiatric treatment ordered by the circuit court and should be committed to the Anthony
Center. The circuit court denied his motion to reconsider by order entered November 1, 2001,
reiterating its recommendation that the Department of Corrections consider the previous
recommendations for psychiatric treatment.

        Because petitioner did not object at trial to the circuit court’s entry of the guilty plea
without psychiatric evaluation, this Court applies the plain error analysis. “To trigger application
of the ‘plain error’ doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial
rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial
proceedings.” Syl. Pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

       Contrary to petitioner’s argument that the circuit court erred in failing to recommend a
psychiatric evaluation pursuant to West Virginia Code § 27-6A-2, at the plea hearing, petitioner
averred that he could read and comprehend the plea agreement, that he had time to consult with
counsel, and that he was not affected by any medications at that time. In addition, he
demonstrated that he was aware of his name, birthday, residence, housemate, literacy, that he
attended high school in Florida through the 11th grade.

        Whenever a court of record has reasonable cause to believe that a defendant in
        which an indictment has been returned, or a warrant or summons issued, may be
        incompetent to stand trial it shall . . . order a forensic evaluation of the defendant's
        competency to stand trial to be conducted by one or more qualified forensic
        psychiatrists, or one or more qualified forensic psychologists.

W.Va. Code § 27-6A-2. While petitioner stated that he had previously received treatment for a
psychiatric condition, nothing in our review of the record shows that the circuit court had
reasonable cause to believe he was incompetent to stand trial because it is clear he consulted with
his attorney and assisted in the preparation of his defense. “‘The test for mental competency to
stand trial and the test for mental competency to plead guilty are the same.’ Syllabus Point 2,
State v. Cheshire, 170 W.Va. 217, 292 S.E.2d 628 (1982).” Syl. Pt. 4, State v. Chapman, 210
W.Va. 292, 557 S.E.2d 346 (2001).

        The minimal threshold for competency requires that a defendant have both a
        “sufficient present ability to consult with his lawyer with a reasonable degree of
        rational understanding,” and “a rational as well as factual understanding of the
        proceedings against him.” Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788,
        789, 4 L.Ed.2d 824 (1960) (per curiam).

State v. Chapman, 210 W.Va. at 298, 557 S.E.2d at 352.

        “No person may be subjected to trial on a criminal charge when, by virtue of
        mental incapacity, the person is unable to consult with his attorney and to assist in

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       the preparation of his defense with a reasonable degree of rational understanding
       of the nature and object of the proceedings against him.” Syllabus Point 1, State v.
       Milam, 159 W.Va. 691, 226 S.E.2d 433 (1976).

Syl. Pt. 3, State v. Chapman 210 W. Va. 292, 557 S.E.2d 346. Based upon our
review of the record, we find that the circuit court committed no error when it did
not order petitioner to undergo psychiatric evaluation to determine competency.

        Petitioner’s other assignment of error deals with the sentence imposed. Petitioner argues
that he should have been assigned to the Anthony Center. This Court has stated as follows:

       Just as a trial court’s decision to grant or deny probation is subject to the
       discretion of the sentencing tribunal, so too is the decision whether to sentence an
       individual pursuant to the Youthful Offenders Act. The determinative language of
       West Virginia Code § 25–4–6 is stated indisputably in discretionary terms: “[T]he
       judge of any court . . . may suspend the imposition of sentence . . . and commit
       the young adult to the custody of the West Virginia commissioner of corrections
       to be assigned to a center.” Id. (emphasis supplied). Since the dispositive statutory
       term is “may,” there can be no question that the decision whether to invoke the
       provisions of the Youthful Offenders Act is within the sole discretion of the
       sentencing judge. See State v. Allen, 208 W.Va. 144, [157], 539 S.E.2d 87, [100]
       (1999) (recognizing that “[c]lassification of an individual as a youthful offender
       rests within the sound discretion of the circuit court”); accord State v. Richards,
       206 W.Va. 573, 575, 526 S.E.2d 539, 541 (1999) (stating that Youthful Offenders
       Act “grants discretionary authority to the circuit courts to suspend imposition of
       sentence, and place a qualifying defendant in a program of rehabilitation at a
       youthful-offender center”) (citation omitted).

        State v. Shaw, 208 W.Va. 426, 430, 541 S.E.2d 21, 25 (2000). 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 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). Upon
review of the record, the circuit court sentenced petitioner within the statutory limit for first
degree sexual assault pursuant to West Virginia Code § 61-8B-3, the sentences were not based on
an impermissible factor, and are not shocking or disproportionate. Furthermore, the plea
agreement did not require youthful offender treatment sought by petitioner, such as that offered at
the Anthony Center and the circuit court was within its discretion to decline to sentence him
pursuant to the Youthful Offenders Act. This Court finds no error in the circuit court’s denial of
petitioner’s Rule 35(b) motion because petitioner was properly sentenced pursuant to the statute.
Therefore, under the facts of this case, petitioner’s sentence is not found to be excessive, and we
find no error in the circuit court’s order. For the foregoing reasons, we affirm.

                                                                                          Affirmed.



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ISSUED: October 1, 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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