                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS

State of West Virginia, Plaintiff Below,
Respondent                                                                            FILED
                                                                                   March 7, 2016
vs) No. 15-0536 (Jackson County 14-F-73)                                           RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
William White, Defendant Below,
Petitioner


                              MEMORANDUM DECISION
       Petitioner William White, by counsel Kevin B. Postalwait, appeals the Circuit Court of
Jackson County’s May 8, 2015, order sentencing him to a term of incarceration of one to five
years following his guilty plea to one count of conspiracy to commit a felony. The State, by
counsel Nic Dalton, filed a response. On appeal, petitioner alleges that the circuit court erred in
imposing 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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        In June of 2014, petitioner was indicted for the following crimes: one count of possession
of a controlled substance, marijuana, with intent to deliver; one count of possession of a
controlled substance, heroin, with intent to deliver; one count of possession of a controlled
substance, oxycodone, with intent to deliver; one count of possession of a controlled substance,
hydrocodone, with intent to deliver; and one count of conspiracy to commit a felony. These
charges arose out of petitioner’s statement to police that he and two co-defendants were living
together and that one co-defendant was bringing drugs from Detroit to sell in the area.

       In December of 2014, petitioner entered a guilty plea to one count of conspiracy to
commit a felony, and the circuit court ultimately imposed the maximum sentence of one to five
years of incarceration. Following sentencing, petitioner filed a motion for reconsideration of his
sentence under Rule 35 of the West Virginia Rules of Criminal Procedure. However, the circuit
court entered an order denying that motion without a hearing on August 12, 2015. It is from the
sentencing order that petitioner appeals.

        We have previously 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. 3, State v.

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Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010). We note that petitioner’s sentence for his crime
is within the applicable statutory limitations. Specifically, West Virginia Code § 61-10-31 states
that

       [a]ny person who violates the provisions of this section by conspiring to commit
       an offense against the State which is a felony, . . . shall be guilty of a felony, and,
       upon conviction thereof, shall be punished by imprisonment in the penitentiary for
       not less than one nor more than five years . . . .

As such, it is clear that petitioner was sentenced within the applicable statutory guidelines and
his sentence is not reviewable on appeal.

        This is especially true in light of the fact that petitioner does not allege that the circuit
court based its sentence on any impermissible factor. Instead, petitioner argues that the circuit
court simply abused its discretion in denying him alternative sentencing. Petitioner bases this
assertion on the fact that his co-defendant was granted probation, the State initially
recommended home incarceration and later did not opposed probation, and his own efforts at
attending counseling and treatment for substance abuse. The Court, however, notes that none of
these issues constitute an allegation that the circuit court based petitioner’s sentence on an
impermissible factor. As such, we reiterate that petitioner’s sentence is, therefore, not reviewable
on appeal.

       For the foregoing reasons, the circuit court’s May 8, 2015, sentencing order is hereby
affirmed.


                                                                                           Affirmed.

ISSUED: March 7, 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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