                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS



State of West Virginia,                                                                 FILED
Plaintiff Below, Respondent                                                             April 16, 2013
                                                                                   RORY L. PERRY II, CLERK
                                                                                 SUPREME COURT OF APPEALS
vs) No. 12-0407 (Jackson County 09-F-67)                                             OF WEST VIRGINIA


Mark A. Blair,

Defendant Below, Petitioner



                                 MEMORANDUM DECISION

       Petitioner’s appeal, by counsel William B. Summers, arises from the Circuit Court of
Jackson County, wherein he was sentenced to a term of incarceration of two to five years
following his conviction for possession of a controlled substance with intent to deliver by order
entered on February 15, 2012. The State, by counsel Marland L. Turner, has filed its 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.

       In November of 2011, petitioner was convicted, by jury, of possession of a controlled
substance with intent to deliver. At sentencing, the State presented evidence of petitioner’s prior
conviction for possession of a controlled substance with intent to deliver. The circuit court
admitted the prior conviction, without objection, for the purpose of enhancing petitioner’s
sentence pursuant to West Virginia Code § 60A-4-408. Petitioner was then sentenced to a term of
incarceration of two to five years.

        On appeal, petitioner alleges that his sentence was excessive and that, given the evidence
presented and the nature of the case, he should have received some form of alternative sentencing.
Further, petitioner alleges that the circuit court erred in its application of West Virginia Code §
60A-4-408 because the enhancement was discretionary and because the State failed to file a
recidivist information. In short, petitioner argues that the circuit court erred in doubling only the
minimum term of incarceration and asserts that he could only have been sentenced to
incarceration for one to five years or two to ten years. In response, the State argues that
petitioner’s sentence was not unconstitutionally disproportionate because it was within the limits
established by West Virginia Code § 60A-4-401. Additionally, the State argues that West Virginia
Code § 60A-4-408 allows a circuit court to enhance a sentence up to twice the term otherwise


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authorized. As such, the circuit court was within its discretion to sentence petitioner to two to five
years of incarceration.

        “‘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). Upon our review, the Court finds no error in regard to either of
petitioner’s assignments of error. “‘Sentences 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. 3, State v. Georgius,
225 W.Va. 716, 696 S.E.2d 18 (2010) (per curiam).

        Petitioner was convicted pursuant to West Virginia Code § 60A-4-401(a)(ii), which
provides for a punishment of one to five years of incarceration. Additionally, it was established at
sentencing that petitioner had a prior conviction for possession of a controlled substance with
intent to deliver. Pursuant to West Virginia Code § 60A-4-408, circuit courts have the discretion
to enhance a sentence by “up to twice the term otherwise authorized” upon a second conviction
under the Uniform Controlled Substance Act. As such, petitioner was properly sentenced to a
statutorily authorized term of incarceration of two to five years, and his sentence is, therefore, not
subject to appellate review. Further, the Court finds no merit in the argument that the circuit court
erred in its application of West Virginia Code § 60A-4-408. The language cited above clearly
grants circuit courts the discretion to enhance a defendant’s sentence by any degree up to double
the length of incarceration otherwise authorized.

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


                                                                                           Affirmed.


ISSUED: April 16, 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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