                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


                                                                                FILED
State of West Virginia, Plaintiff Below,
                                                                              May 18, 2015
Respondent                                                                 RORY L. PERRY II, CLERK
                                                                         SUPREME COURT OF APPEALS
vs) No. 14-0442 (Kanawha County 13-F-383)                                    OF WEST VIRGINIA



Aaron Chapman, Defendant Below,
Petitioner

                              MEMORANDUM DECISION
        Petitioner Aaron Chapman, by counsel Brian Yost, appeals the Circuit Court of Kanawha
County’s December 2, 2013, order sentencing him to consecutive terms of incarceration for
eighty-years for one count of first-degree robbery and two to ten years for one count of malicious
wounding. The State of West Virginia, by counsel Laura Young, filed a response. On appeal,
petitioner argues that his sentence for first-degree robbery is impermissibly excessive and that
the circuit court abused its discretion by placing undue emphasis on the victim impact statements
during sentencing.

        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.

        On July 27, 2013, petitioner, pled guilty by Information to one count of first-degree
robbery and one count of malicious wounding per a plea agreement. These charges stemmed
from an incident in which, following an evening of drinking alcohol and consuming drugs,
petitioner entered the victim’s residence in search of money or prescription drugs. After being
confronted by the victim, petitioner struck the victim and left the residence with a television and
several pieces of jewelry. In December of 2013, the circuit court sentenced petitioner to a term of
incarceration of eighty-years for one count of first-degree robbery in violation of West Virginia
Code § 61-2-12(a) and a consecutive term of incarceration of two to ten years for one count of
malicious wounding in violation of West Virginia Code § 61-2-9. It is from the sentencing order
that petitioner appeals.

        On appeal, petitioner argues only that his eighty-year sentence for first-degree robbery is
disproportionate in violation of Article III, Section 5 of the West Virginia Constitution. In
addressing the limitation on appellate review of 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.

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Rogers, 167 W.Va. 358, 360, 280 S.E.2d 82, 84 (1981)). We note that the statute under which
petitioner was sentenced for first-degree robbery, West Virginia Code § 61-2-12(a), provides no
upper limit. As such, petitioner’s sentence for this crime is reviewable.1

       There are two tests to determine whether a sentence is constitutionally disproportionate.
However, this Court does not need to address whether petitioner’s sentence is subjectively
disproportionate. In his brief, petitioner acknowledges that he is not arguing that the sentence
imposed “shocks the conscience.”

       In addressing excessive sentences, this Court has held as follows:

               “In determining whether a given 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.” Syl. Pt. 5, in part, Wanstreet v. Bordenkircher, 166 W.Va. 523,
       276 S.E.2d 205 (1981).

Syl. Pt. 5, State v. James, 227 W.Va. 407, 710 S.E.2d 98 (2011). Upon our review, the Court
finds that petitioner’s eighty-year sentence for first-degree robbery is not excessive. While
petitioner argues that his acceptance of responsibility supports a lesser sentence, the Court
disagrees. First, the nature of the offense supports the circuit court’s sentence. Petitioner
admitted that, despite knowing that the victim was home, he knowingly entered the victim’s
residence. Petitioner also admitted that “[i]t was a cruel, heinous crime.” While inside the
residence, petitioner “destroyed the house in a rage” and struck the victim with his hands.
Furthermore, the victim impact statements reveal the extreme violence of the crime. The
statements also reveal that as a result of petitioner’s actions, the victim suffered multiple facial
fractures, multiple brain bleeds, cervical fractures, multiple broken ribs, and a broken arm.

       Petitioner further argues that a comparison of the punishments in our neighboring States,
as well within this State, support a lesser sentence. Again, this Court disagrees. The legislative
purpose in enacting the statute under which petitioner was sentenced clearly supports the
sentence imposed, as we have noted that first-degree robbery is a dangerous crime involving “a
high potentiality for violence and injury to the victim involved.” State v. Adams, 211 W.Va. 231,
234, 565 S.E.2d 353, 356 (2002) (quoting State v. Ross, 184 W.Va. 579, 582, 402 S.E.2d 248,
251 (1990)). The punishment petitioner received is not excessive when compared to other
       1
         Petitioner does not challenge his sentence for malicious wounding. 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). As such, the Court is not required to
address this sentence. However, we note that the sentence imposed for malicious wounding is
within the applicable guidelines set forth in West Virginia Code § 61-2-9, and was not based on
any impermissible factors. As such, this sentence is not subject to appellate review. Id. at 717,
696 S.E.2d at 19.

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jurisdictions or our own jurisdiction. In State v. King, 205 W.Va. 422, 518 S.E.2d 663 (1999),
this Court upheld an eighty-four year sentence for aggravated robbery in which no victims were
injured, unlike the current matter. In addressing the appropriateness of that sentence, the Court
also addressed cases from other jurisdictions wherein defendants received comparable sentences.
Id. at 428-29, 518 S.E.2d at 669-70 (citing State v. Alsup, 239 Kan. 673, 722 P.2d 1100 (1986);
Robinson v. State, 743 P.2d 1088 (Okla.Crim.App. 1987); State v. Whitaker, 260 Kan. 85, 917
P.2d 859 (1996). For these reasons, it is clear that a comparison of punishments from within this
jurisdiction and from other jurisdictions supports petitioner’s sentence. As such, we find that
petitioner’s sentence is not unconstitutionally excessive.

        Finally, petitioner argues that the circuit court placed undue emphasis on victim impact
statements. In support of his argument, petitioner states that the impact statements constituted
seventy-two percent of the sentencing hearing and that the statement’s included numerous
photographs and visual aids. The circuit court was obligated to consider the statement to some
degree. West Virginia Code § 61-11A-3(a) requires that: “[i]n every case in which a presentence
report is ordered by the court, such presentence report shall contain a victim impact statement
unless the court orders otherwise, if the defendant, in committing a felony or misdemeanor,
caused physical, psychological or economic injury or death of the victim.” The statement is
statutorily required to include “a description of the nature and extent of any physical or
psychological injury suffered by the victim as a result of the offense . . . .” See W.Va. Code § 61­
11A-3(b). The record in this matter contains no evidence that the victim impact statements were
considered in a manner not contemplated by our statute. The circuit court was presented with
extensive information from a variety of sources during petitioner’s sentencing. In addition to
considering the various victim impact statements, the circuit court also reviewed “the letters of
sentiment from [petitioner] and his family,” the presentence investigation report, which included
a summary of petitioner’s prior criminal history and extensive drug abuse history. It is apparent
on the face of the record that the circuit court properly focused upon the sentencing criteria and
the nature of the crime, and did not place excessive emphasis on the victim impact statements.

       For the foregoing reasons, the circuit court’s December 2, 2013, sentencing order is
hereby affirmed.


                                                                                         Affirmed.

ISSUED: May 18, 2015

CONCURRED IN BY:

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




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