                                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. 12-0436 (Berkeley County 11-F-118 & 11-F-169)                         OF WEST VIRGINIA


Tyler S. Munson,
Defendant Below, Petitioner

                                 MEMORANDUM DECISION

       Petitioner Tyler Munson, by counsel Neil J. Zahradnik, appeals the Circuit Court of
Berkeley County’s sentencing order entered on December 27, 2012. The State of West Virginia,
by counsel Cheryl K. Saville, 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.

         Petitioner was indicted on one count of daytime burglary, two counts of grand larceny,
and one count of burglary. In a separate action, petitioner waived indictment on one count of aid
in concealing stolen property. By non-binding plea, petitioner pled guilty to one count of daytime
burglary, one count of grand larceny, and one count of aid in concealing stolen property. As a
condition of the plea, the remaining charges were dismissed and the State agreed to recommend
that petitioner’s sentence be delayed pending completion of a program at the Anthony Center.
Petitioner was sentenced to confinement for not less than one year nor more than ten years on
each count, to be served consecutively. Additionally, petitioner was ordered to pay $1,611 in
restitution.

        On appeal, petitioner argues that the circuit court violated the proportionality principle
contained in Article III, Section 5 of the West Virginia Constitution when he was sentenced to
three consecutive indeterminate terms of incarceration of one to ten years each. Petitioner
concedes that the sentences imposed are within the statutory limits and are not so excessive to
shock the conscience. Petitioner simply argues the sentences are disproportionate to the nature of
the crimes. Petitioner argues that the crimes involved are all nonviolent theft-related crimes and
the aggregate value of the stolen goods does not justify the sentence imposed.

        “‘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

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W.Va. 407, 710 S.E.2d 98 (2011). 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.” Syl. Pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).
Although the sentences in this matter are within the statutory limits, petitioner argues that his
sentences violate the proportionality principle of the West Virginia Constitution.

       In the present case, petitioner’s sentences are within the statutory limits for daytime
burglary pursuant to West Virginia Code § 61-3-11(b), grand larceny pursuant to West Virginia
Code § 61-3-13(a), and aid in concealing stolen property pursuant to West Virginia Code § 61-3­
18. If a sentence is subject to appellate review, however, the Court must review it under the
standards set forth in State v. Cooper, 172 W.Va. 266, 304 S.E.2d 851 (1983), and Syllabus Point
5 of Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981):

       There are two tests to determine whether a sentence is so disproportionate to a
       crime that it violates our constitution. Accord, Stockton v. Leeke, 269 S.C. 459,
       237 S.E.2d 896, 897 (1977). The first is subjective and asks whether the sentence
       for the particular crimes 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. When it cannot be said that a sentence
       shocks the conscience, a disproportionality challenge is guided by the objective
       test we spelled out in Syllabus Point 5 of Wanstreet v. Bordenkircher, 166 W.Va.
       523, 276 S.E.2d 205 (1981): In determining whether a given sentence violates the
       proportionality principle found in Article III, Section 5 of the West Virginia
       Constitution, 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.

State v. Cooper, 172 W.Va. 266, 272, 304 S.E.2d 851, 857 (1983). Upon our review of the
record, the Court finds that the petitioner’s sentences do not violate the West Virginia
Constitution, as the sentences do not shock the conscience, nor are they disproportionate.

       For the foregoing reasons, we affirm the circuit court’s sentencing order.


                                                                                          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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