                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS

State of West Virginia,
Plaintiff Below, Respondent                                                         FILED
                                                                                October 11, 2019
vs) No. 18-0920 (Morgan County 16-F-49)                                          EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
Jason C.,
Defendant Below, Petitioner


                               MEMORANDUM DECISION


        Petitioner Jason C.,1 by counsel Jason M. Stedman, appeals the September 19, 2018, order
of the Circuit Court of Morgan County that sentenced him to one to five years in prison upon his
guilty plea to one count of sexual assault in the third degree. The State of West Virginia, by counsel
Elizabeth Grant, filed a 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 affirming the order of the circuit court is appropriate under Rule 21 of
the Rules of Appellate Procedure.

        In September of 2016, petitioner was indicted by a Morgan County Grand Jury on one
count of sexual assault in the first degree and one count of sexual abuse by a person in a position
of trust. The victim was petitioner’s nine-year-old niece. Petitioner was alleged to have pulled
down the victim’s pants, masturbated in front of her, and engaged in sexual intercourse with her.

       Petitioner subsequently entered a guilty plea (under Alford/Kennedy circumstances2) to one
count of sexual assault in the first degree. See W. Va. Code § 61-8B-7. At a sentencing hearing

       1
        Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.
254, 773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993); State v.
Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
       2
        Relying on North Carolina v. Alford, 400 U.S. 25 (1970), this Court held in syllabus point
1 of Kennedy v. Frazier, 178 W. Va. 10, 357 S.E.2d 43 (1987), that “[a]n accused may voluntarily,
knowingly and understandingly consent to the imposition of a prison sentence even though he is
unwilling to admit participation in the crime, if he intelligently concludes that his interests require


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conducted on September 19, 2018, petitioner requested a sentence of supervised probation. In
imposing petitioner’s sentence, and, in particular, denying his request for probation, the circuit
court indicated that it reviewed the July 10, 2018, presentence investigation report and the
psychological evaluation of sexual risk that was performed on July 6, 2018. See W. Va. Code §
61-12-2(e) (2006), in part (providing that “any person who has been found guilty of, or pleaded
guilty to, a violation of . . . the provisions of . . . [§§ 61-8B-1 et seq.] . . . such person shall only be
eligible for probation after undergoing a physical, mental and psychiatric study and diagnosis . . .
.”). In the latter, it was reported that, in 2014, petitioner had been accused of sexual misconduct
involving a ten-year-old child, which included the child performing oral sex on petitioner.
According to a police report, petitioner denied the allegation but admitted that “he witnessed his
friend watch the minor having sex with an 18-year-old in order ‘to make sure he (the 18-year-old)
didn’t hurt her;’ another person corroborated this report. [Petitioner] advised that he took a
photograph of the minor sleeping with the 18-year-old boy.” The circuit court specifically noted
that the child victim involved in the prior incident ultimately recanted the allegation against
petitioner. Nonetheless, at the sentencing hearing, the court expressed its concern “that there may
have been a number of prior violations of the law with regard to sex offenses that just have not
been prosecuted because victims aren’t prepared to go through what they have to go through to
come forward.”

        In addition to considering the prior allegation of sexual misconduct set forth in the court-
ordered psychological evaluation, the circuit court stated that it also took into account petitioner’s
refusal to accept responsibility for his conduct even though “semen was found on the victim in this
case and that semen matched this Defendant’s genetic profile.” Additionally, the court indicated
that “[o]ne of the things [it] looks at in terms of determining whether somebody is a good candidate
for probation is how they did on bond supervision. And in this case[,] [petitioner’s] bond
supervision was revoked for a fairly serious violation of the law.” (While on bond supervision,
petitioner admitted to smoking marijuana and snorting heroin.3 He also tested positive for
marijuana and opiates.) Finally, the circuit court considered the serious nature of the crime – that
“this [c]ourt believes that crimes, sex crimes against children are perhaps the most serious that this
[c]ourt has before it and this [c]ourt is just not going to tolerate that behavior in the community.”
Based upon these factors, the court denied petitioner’s request for probation, and, instead,
sentenced him to five to twenty-five years in prison and ordered that he serve a period of forty
years of supervised release and register as a sex offender for life. It is from this sentencing order
that petitioner now appeals.

       Sentencing orders are reviewed “‘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, in part, State v. James, 227 W. Va. 407, 710 S.E.2d


a guilty plea and the record supports the conclusion that a jury could convict him.”
        3
         According to the presentence investigation report, during the pendency of this case,
petitioner was indicted on two counts of possession with intent to deliver heroin. As a condition
of the proffered plea in the present case, the indictment filed in that case (Case No. 18-F-4) was
dismissed.


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98 (2011). Moreover, this Court has 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. Georgius, 225 W. Va. 716, 696 S.E.2d 18 (2010).

        On appeal, petitioner argues that the circuit court abused its discretion in denying his
request for supervised probation. Although petitioner does not dispute that the sentence imposed
is within the statutory parameters, he contends that the court impermissibly considered a prior
allegation of sexual misconduct against a minor that was recanted and for which he was never
charged. According to petitioner, the circuit court violated West Virginia Rule of Evidence 404(b),
which prohibits the consideration of “other bad acts” for the purpose of determining a defendant’s
character and propensity to act in conformity therewith.4

        We find no error. “‘The decision of a trial court to deny probation will be overturned only
when, on the facts of the case, that decision constituted a palpable abuse of discretion.’ Syl. Pt.
2, State v. Shafer, 168 W.Va. 474, 284 S.E.2d 916 (1981).” Syl. Pt. 3, State v. Shaw, 208 W. Va.
426, 541 S.E.2d 21 (2000). As a threshold matter, we observe that petitioner’s claim that the circuit
court’s consideration of a prior (and uncharged) allegation of sexual misconduct against petitioner
violated Rule 404(b) is fundamentally flawed because “the Rules of Evidence do not apply to
sentencing hearings[.]” State v. Trail, 236 W. Va. 167, 180 n.17, 778 S.E.2d 616, 629 n.17 (2015).
Rule 1101(b)(3) specifically states that “[u]nless otherwise provided by rules of the Supreme Court
of Appeals, these rules other than those with respect to privileges do not apply in the following
situations: . . . [s]entencing . . . .” See also State v. LaRock, 196 W. Va. 294, 306 n.15, 470 S.E.2d
613, 625 n.15 (1996) (noting that “the West Virginia Rules of Evidence do not apply
to sentencing matters and proceedings”). Thus, this Court is mindful that a sentencing judge “is
not limited to considering only information which would be admissible under the adversary
circumstances of trial . . . . The rules of evidence which ordinarily obtain in a trial where guilt is
denied do not bind the court in its inquiry.” State v. Houston, 166 W. Va. 202, 207-08, 273 S.E.2d
375, 378 (1980).



       4
           West Virginia Rule of Evidence 404(b) provides as follows:

       (b) Crimes, Wrongs, or Other Acts.
       (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to
       prove a person’s character in order to show that on a particular occasion the person
       acted in accordance with the character.
       (2) Permitted Uses; Notice Required. This evidence may be admissible for another
       purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge,
       identity, absence of mistake, or lack of accident. Any party seeking the admission
       of evidence pursuant to this subsection must:
       (A) provide reasonable notice of the general nature and the specific and precise
       purpose for which the evidence is being offered by the party at trial; and
       (B) do so before trial--or during trial if the court, for good cause, excuses lack of
       pretrial notice.


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        In this case, the circuit court was presented with factual findings in petitioner’s
psychological evaluation describing prior sexual misconduct involving petitioner and a minor.
According to the evaluation (which was derived from a police report), although petitioner denied
the allegation that a ten-year-old child performed oral sex on him, he admitted that he “witnessed
his friend watch the minor having sex with an 18-year-old . . . . [and] that he took a photograph of
the minor sleeping with the 18-year-old boy.” Petitioner did not challenge the validity of this
factual finding at the sentencing hearing. The circuit court considered this prior incident along with
other factors—i.e., the seriousness of the crime, petitioner’s bond violation, and his refusal to take
responsibility despite the physical evidence against him—all of which the court deemed to be
relevant as to whether probation was appropriate in this case. This Court has recognized that “‘a
defendant convicted of a crime has no absolute right to probation, probation being a matter
of grace only, extended by the State to a defendant convicted of a crime, in certain circumstances
and on certain conditions.’” State ex rel. Winter v. MacQueen, 161 W. Va. 30, 32-33, 239 S.E.2d
660, 661-62 (1977) (quoting State v. Loy, 146 W. Va. 308, 318, 119 S.E.2d 826, 832 (1961)).
Given all of the above, we conclude that the circuit court did not abuse its discretion in determining
that petitioner’s request for probation should be denied.

       For the foregoing reasons, we affirm.

                                                                                           Affirmed.

ISSUED: October 11, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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