                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia,                                                             FILED
Plaintiff Below, Respondent
                                                                                 June 9, 2017
                                                                                 RORY L. PERRY II, CLERK
vs) No. 16-0594 (Kanawha County 16-F-150)                                      SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA

Martez A. Griffin,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner Martez A. Griffin, by counsel Matthew A. Victor, appeals the Circuit Court of
Kanawha County’s May 27, 2016, order sentencing him to a term of incarceration of sixty years
for his conviction of one count of first-degree robbery.1 The State of West Virginia, by counsel

       1
        Petitioner’s undersigned counsel, Matthew A. Victor, filed a brief in accordance with
Rules 10(c)(10)(a) and (b) of the West Virginia Rules of Appellate Procedure. Rule 10(c)(10) of
the West Virginia Rules of Appellate Procedure provides that

       [t]he following requirements must be observed when counsel in a criminal . . .
       case is directed by a client to file an appeal where counsel lacks a good faith
       belief that an appeal is reasonable and warranted under the circumstances:

       (a) Counsel must engage in a candid discussion with the client regarding the
       merits of the appeal. If, after consultation with the client, the client insists on
       proceeding with the appeal, counsel must file a notice of appeal and perfect the
       appeal on the petitioner’s behalf. The petitioner’s brief should raise any arguable
       points of error advanced by the client. Counsel need not espouse unsupportable
       contentions insisted on by the client, but should present a brief containing
       appropriate citations to the appendix and any case law that supports the
       assignments of error.

       (b) In extraordinary circumstances, if counsel is ethically compelled to
       disassociate from the contentions presented in the brief, counsel must preface the
       brief with a statement that the brief is filed pursuant to Rule 10(c)(10)(b). Counsel
       should not inject disclaimers or argue against the client’s interests. If counsel is
       ethically compelled to disassociate from any assignments of error that the client
       wishes to raise on appeal, counsel must file a motion requesting leave for the
       client to file a pro se supplemental brief raising those assignments of error that the
       client wishes to raise but that counsel does not have a good faith belief are
       reasonable and warranted.


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Gordon L. Mowen, II, filed a response. On appeal, petitioner argues that the circuit court erred
when it sentenced him to an unacceptable sentence. Petitioner also argues that he received
ineffective assistance of counsel.

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

         In September of 2015, petitioner and his co-defendants forcibly broke into an apartment
wherein they robbed the victim of money and heroin. During the commission of the robbery,
petitioner struck the victim in the head with a “large marble rock.” After the robbery, the victim
attempted to climb out of an open window but slid down the side of the apartment building and
fell to his death.

        In March of 2016, petitioner was indicted on one felony count of first-degree robbery and
one felony count of first-degree murder. In May of 2015, following plea negotiations with the
State, the State extended a binding plea offer to petitioner whereby he would plead guilty to one
felony count of first-degree robbery.2 For this crime, petitioner would be sentenced to a
determinate term of sixty years of incarceration. In exchange for the guilty plea, the State agreed
to dismiss the remaining felony count of first-degree murder. Petitioner stated at the plea hearing
that he understood that he was being sentenced to the previously agreed-upon term of
incarceration, that he was waiving certain constitutional rights by pleading guilty, and that he
was entering into a voluntary plea agreement. The circuit court sentenced petitioner to the
previously agreed-upon determinate term of incarceration of sixty years for the first-degree
robbery conviction. By order entered on May 27, 2016. Petitioner did not object to the sixty-year
term of incarceration at sentencing. It is from this 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).



       2
       The plea was entered into pursuant to Rule 11(e)(1)(c) of the West Virginia Rules of
Criminal Procedure, which provides that

       [t]he attorney for the state and the attorney for the defendant . . . may engage in
       discussions with a view toward reaching an agreement that, upon the entering of a
       plea of guilty . . . to a charged offense or to a lesser or related offense, the attorney
       for the state will do any of the following: Agree that a specific sentence is the
       appropriate disposition of the case.



                                                  2

        Petitioner first argues that he is “dissatisfied” with the sentence he received pursuant to
his plea of guilty. We have previously explained 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). But,
“[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)
(citation omitted). Because our first-degree robbery statute contains no upper limit, the Court
will undertake a proportionality analysis in this matter.

        There are two tests for determining whether a sentence is so disproportionate to the crime
that it violates Article III, Section 5 of the West Virginia Constitution. “The first is subjective
and asks whether the sentence for the particular crime shocks the conscience of the court and
society. If a sentence is so offensive that it cannot pass a societal and judicial sense of justice, the
inquiry need not proceed further.” State v. Adams, 211 W.Va. 231, 233, 565 S.E.2d 353, 355
(2002). To determine whether a sentence shocks the conscience, this Court considers all of the
circumstances surrounding the offense. Id. If a sentence is found not to shock the conscience, this
Court proceeds to the objective test. Id. Under the objective test, to determine whether a sentence
violates the proportionality principle, “consideration is given to the nature of the offense, the
legislative purpose behind the punishment, a comparison of the punishment with what would be
inflicted in other jurisdictions, and a comparison with other offenses within the same
jurisdiction.” Id. at 232, 565 S.E.2d at 354, Syl. Pt. 2.

       In this case, petitioner and his co-defendants forcibly broke into an apartment to rob the
victim of money and heroin. During the commission of the robbery, petitioner struck the victim
in the head with a large rock. Further, petitioner agreed to his sentence as a part of his plea
agreement. For these reasons, this Court does not find that petitioner’s sixty-year determinate
sentence for first-degree robbery shocks the conscience.

         Moving to the objective test, and considering the nature of the offense, we recognize that
“aggravated robbery . . . involves a high potentiality for violence and injury to the victim
involved.” Id. at 234, 565 S.E.2d at 356. This Court has recognized that the sentencing scheme
for first-degree robbery serves two purposes: “First, it gives recognition to the seriousness of the
offense by imposing a minimum sentence below which a trial court may not go. Second, the
open-ended maximum sentencing discretion allows trial courts to consider the weight of
aggravating and mitigating factors in each particular case.” Id. at 234-35, 565 S.E.2d at 356-57.

        In comparing the length of petitioner’s sentence with what is imposed in other
jurisdictions, this Court has previously recognized that other jurisdictions also permit long prison
sentences for first-degree robbery. See Id. at 235, 565 S.E.2d at 357 (citing State v. Boag, 453
P.2d 508 (Ariz. 1969) (imposing seventy-five to ninety-nine-year sentence); State v. Victorian,
332 So.2d 220 (La. 1976) (imposing forty-five-year sentence); State v. Hoskins, 522 So.2d 1235
(La. Ct. App. 1988) (imposing ninety-nine-year sentence); People v. Murph, 463 N.W.2d 156
(Mich. Ct. App. 1990) (imposing two forty-six-year sentences); State v. Morris, 661 S.W.2d 84
(Mo. Ct. App. 1983) (imposing life sentence); Robinson v. State, 743 P.2d 1088 (Okla. Crim.
App. 1987) (imposing 100 year sentence)).

                                                   3

        Finally, comparing the punishment with other offenses within this jurisdiction, this Court
has rejected proportionality challenges in many cases involving first-degree robbery, even where
the sentences imposed have exceeded petitioner’s sentence of sixty years. Adams, 211 W.Va. at
235, 565 S.E.2d at 357 (citing State v. Williams, 205 W.Va. 552, 519 S.E.2d 835 (1999)
(upholding fifty-year sentence for attempted aggravated robbery); State v. Phillips, 199 W.Va.
507, 485 S.E.2d 676 (1997) (upholding 140-year sentence for two counts of aggravated robbery
and one count of kidnapping); State v. Ross, 184 W.Va. 579, 402 S.E.2d 248 (1990) (upholding
100-year sentence for attempted aggravated robbery); State v. Spence, 182 W.Va. 472, 388
S.E.2d 498 (1989) (upholding sixty-year sentence for aggravated robbery); State v. England, 180
W.Va. 342, 376 S.E.2d 548 (1988) (upholding life sentence for aggravated robbery); State v.
Brown, 177 W.Va. 633, 355 S.E.2d 614 (1987) (upholding sixty-year sentence for aggravated
robbery); State v. Glover, 177 W.Va. 650, 355 S.E.2d 631 (1987) (upholding seventy-five-year
sentence for aggravated robbery)).

        In Adams, this Court upheld a ninety-year sentence for first-degree robbery in spite of the
fact that no extreme violence was used during the commission of the robbery. Id. at 232, 565
S.E.2d at 354. In the instant case, petitioner’s sentence was less than that of the defendant in
Adams, and petitioner used a rock to violently strike the victim in the head. Thus, we find that
petitioner’s sentence is not disproportionate to the crime committed.

        Petitioner next argues that he received ineffective assistance of counsel below. Petitioner
vaguely contends that by “pinging” his cellular telephone, it could have been established that he
was in the State of Arkansas at the time of the crime. We note, however, that petitioner entered
into a binding plea agreement with the State. Further, our review of the record does not reveal
“whether, in light of all the circumstances, the identified acts or omissions [of the appellant’s
trial counsel] were outside the broad range of professionally competent assistance . . . [without]
engaging in hindsight or second-guessing of [trial counsel’s] strategic decisions.” Syl. pt. 6, in
part, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1994). As we stated in Miller, “[i]t is
apparent that we intelligently cannot determine the merits of this ineffective assistance claim
without an adequate record giving trial counsel the courtesy of being able to explain his trial
actions.” at 17, 459 S.E.2d at 128.3 Accordingly, we decline to further address this issue on direct
appeal.



3
    We have previously 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).


                                                 4

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
May 27, 2016, order is hereby affirmed.


                                                                                     Affirmed.

ISSUED: June 9, 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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