                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,                                                             FILED
Plaintiff Below, Respondent                                                    February 6, 2015
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
vs) No. 14-0474 (Berkeley County 11-F-46)                                       OF WEST VIRGINIA


Rebecca Ferguson,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner Rebecca Ferguson, by counsel Christopher J. Prezioso, appeals the “Amended
Plea Sentencing Order” entered by the Circuit Court of Berkeley County on April 3, 2014,
following petitioner’s no contest plea to five felony counts of child abuse resulting in injury. The
State of West Virginia, by counsel Cheryl K. Saville, filed a response. The circuit court
sentenced petitioner to an effective sentence of one to five years on home incarceration.
Petitioner appeals her sentence inasmuch as the circuit court also ordered that she be subjected to
ten years of supervised release.

        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 February 2011, petitioner was indicted on eleven felony counts of child abuse with
bodily injury and eight felony counts of identity theft. In April 2012, petitioner pled guilty to the
eight identity theft counts and, ultimately, the circuit court suspended all but five years of
incarceration on those charges and ordered that she make restitution to various financial
institutions and the victim, her daughter.1

        On September 18, 2013, pursuant to a binding plea agreement, petitioner pled no contest
to five of the eleven counts of child abuse resulting in injury, as alleged in the above-referenced
indictment. Each of the counts to which petitioner pled no contest alleged a violation of West
Virginia Code § 61-8D-3(a)2 and involved one of petitioner’s five different children in each

       1
          This Court affirmed petitioner’s sentence with respect to the identify theft convictions
in a published opinion, State v. Rebecca F., 233 W.Va. 354, 758 S.E.2d 558 (2014).
       2
           West Virginia Code § 61-8D-3(a) provides that


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count. Specifically, Count 2 alleged that in 2005 petitioner struck the face of one of her children,
resulting in injury; Counts 4, 9, and 11 alleged that in 2003 and 2007 petitioner struck three of
her children with a belt, causing injuries; and Count 5 alleged that in 2007 petitioner grabbed her
child, causing an injury.

        By its “Amended Plea Sentencing Order,” entered on April 3, 2014, the circuit court
sentenced petitioner to one to five years of incarceration3 for each of the five child abuse counts,
to which she pled no contest, to run concurrently with one another. The circuit court ordered that
the sentence for the child abuse convictions run consecutively to the previously-imposed
sentence for the identity theft convictions. The circuit court further ordered that petitioner
register under the Child Abuse Registry for ten years upon her release from incarceration.
Important for the purposes of the present appeal, the circuit court also imposed a ten-year period
of supervised release pursuant to West Virginia Code § 62-12-26. Petitioner now appeals to this
Court, challenging the imposition of supervised release.

        “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,
State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997). “Sentences 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).
However, “[t]he constitutionality of a statute is a question of law which this Court reviews de
novo.” Syl. Pt. 1, State v. Rutherford, 223 W.Va. 1, 672 S.E.2d 137 (2008).

       On appeal, petitioner raises two assignments of error. First, she argues that the imposition
of supervised release constitutes cruel and unusual punishment in violation of the Eighth
Amendment to the United States Constitution and Article III of the West Virginia Constitution.
Second, she argues that her sentence violates due process. Petitioner’s two assignments of error
are premised on the same argument – that her sentence is unconstitutional because West Virginia
Code § 62-12-26 only permits the imposition of supervised release for sexual offenses. In
support, petitioner points to the title of the statute, “Extended supervision for certain sex
offenders; sentencing; conditions; supervision provisions; supervision fee.”

       However, the plain language of West Virginia Code § 62-12-26 indicates otherwise.
Subsection (a) provides, in pertinent part, as follows:




       [i]f any parent, guardian or custodian shall abuse a child and by such abuse cause
       such child bodily injury as such term is defined in section one, article eight-b of
       this chapter, then such parent, guardian or custodian shall be guilty of a felony
       and, upon conviction thereof, shall be fined not less than one hundred nor more
       than one thousand dollars and committed to the custody of the division of
       corrections for not less than one nor more than five years, or in the discretion of
       the court, be confined in the county or regional jail for not more than one year.
       3
           The circuit court permitted petitioner to serve her sentence on home incarceration.
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       Notwithstanding any other provision of this code to the contrary, any defendant
       convicted after the effective date of this section of a violation of section twelve,
       article eight, chapter sixty-one of this code or a felony violation of the provisions
       of article eight-b, eight-c or eight-d of said chapter shall, as part of the sentence
       imposed at final disposition, be required to serve, in addition to any other penalty
       or condition imposed by the court, a period of supervised release of up to fifty
       years[.]

(Emphasis added).

        Clearly, the Legislature authorized the imposition of supervised release for a violation of
Article 8D of Chapter 61 of the West Virginia Code, the offense to which petitioner pled no
contest. Petitioner’s overly-narrow interpretation of the statute finds no support in our case law
or the statute itself.4 Accordingly, under the limited facts and circumstances presented in this
case, we see no error in the circuit court’s sentencing order.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.

ISSUED: February 6, 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




       4
          In her brief, petitioner acknowledges that a violation of West Virginia Code § 61-8D-3
is a qualifying offense under West Virginia Code § 62-12-26. Nevertheless, petitioner contends
that the inclusion of non-sex offenses in the statute must have been by legislative accident or
mistake. We decline to draw such a conclusion in this case.


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