                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia,                                                           FILED
Plaintiff Below, Respondent                                                     February 18, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 13-0436 (Berkeley County 09-F-104)                                     OF WEST VIRGINIA



Russell Coates,

Defendant Below, Petitioner



                              MEMORANDUM DECISION
       Petitioner Russell Coates, by counsel Christopher J. Prezioso, appeals the Berkeley
County Circuit Court’s “Order Revoking Supervised Release Under West Virginia Code § 62­
12-26 and Committing Defendant to the Custody of the Division of Corrections” entered on
March 26, 2013. Respondent State of West Virginia, by counsel Christopher C. Quasebarth, 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 circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        In May of 2009, petitioner was indicted for one count of kidnapping, nine counts of
sexual assault in the second degree, and one count of delivery of cocaine. The charges stemmed
from allegations that petitioner held a woman against her will at her residence where he
repeatedly sexually assaulted her. As part of a plea agreement, petitioner pled no contest to three
counts of sexual abuse in the first degree. Pursuant to the agreement, on February 1, 2011, the
circuit court sentenced petitioner to one to five years in the penitentiary for each of the three
convictions, to run concurrently, and with credit for time served. The circuit court further
sentenced petitioner to ten years of supervised release pursuant to West Virginia Code § 62-12­
26, to commence upon petitioner’s release from incarceration or parole. The remaining charges
in the indictment were dismissed.

       Petitioner was discharged from incarceration on September 4, 2011.1 Under the terms of
his sentence, petitioner’s supervised release commenced that day. On October 19, 2011, after
only six weeks of supervised release, the probation office filed a petition to revoke petitioner’s

       1
         The State references an August 8, 2011, “Official Certificate of Discharge” as the basis
for petitioner’s discharge date. The certificate is not included in the appendix record submitted
by petitioner.
                                                1

supervised release based on allegations that petitioner failed to report to his probation officer on
multiple occasions as directed, failed to report to the West Virginia State Police to update his sex
offender registration as directed, and failed to provide required proof of enrollment in sexual
offender counseling and treatment. Following a hearing, the circuit court found that petitioner
violated the terms of his supervised release and sentenced him to serve thirty days of his ten-year
supervised release period in the penitentiary.

        Thereafter, on December 13, 2012, petitioner’s probation officer filed a second petition to
revoke petitioner’s supervised release, alleging that petitioner (1) failed to pay required
monitoring fees; (2) was charged on December 12, 2012, with misdemeanor possession of a
controlled substance; (3) tested positive for cocaine on December 13, 2012; (4) admitted to his
probation officer on December 12, 2012, that he used cocaine; and (5) admitted to his probation
officer that on December 12, 2012, he solicited a prostitute for sex. At a March 18, 2013, hearing
on this second petition, the circuit court found that petitioner violated the terms of his supervised
release. Petitioner did not contest the violations, but contended that he was doing well until early
December of 2012, when he was diagnosed with prostate cancer. Petitioner requested that his
supervised release be reinstated. However, by order entered March 26, 2013, the circuit court
revoked petitioner’s supervised release, sentenced petitioner to serve the remainder of the ten-
year period of supervised release in the penitentiary, with credit for the thirty days he served
from the first revocation, as well as the time he served after being arrested and incarcerated on
the second revocation petition. From this order, petitioner now appeals to this Court.

       West Virginia Code § 62-12-26(g)(3) authorizes the circuit court to

       [r]evoke a term of supervised release and require the defendant to serve in prison
       all or part of the term of supervised release without credit for time previously
       served on supervised release if the court, pursuant to the West Virginia Rules of
       Criminal Procedure applicable to revocation of probation, finds by clear and
       convincing evidence that the defendant violated a condition of supervised release,
       except that a defendant whose term is revoked under this subdivision may not be
       required to serve more than the period of supervised release[.]

       This Court “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).

        Petitioner raises two assignments of error. First, he argues that the circuit court
committed reversible error by denying his request to return to supervised release. Second, he
argues that the imposition of the remaining portion of the ten-year period of supervised release
violates his constitutional right to due process and freedom from cruel and inhuman punishment.
As these two arguments are closely related, we address them together.

       In his brief, petitioner admits that his sentence is allowable under West Virginia Code §
62-12-26(g)(3). Petitioner further recognizes that a sentence that is within the statutory limits,
unless based on some impermissible factor, is not subject to appellate review. See State ex rel.
Hatcher v. McBride, 221 W.Va. 760, 656 S.E.2d 789 (2007). Petitioner contends that to impose

                                                 2

the ten-year sentence, given that petitioner admitted the violations, is simply unjust and
constitutes an abuse of discretion. He adds that imposition of the ten-year sentence also violates
his constitutional rights against cruel and inhumane punishment because West Virginia Code §
62-12-26(g)(3) prohibits the court from awarding credit for the time petitioner spent on
supervised release. Applying this rule, petitioner hypothesizes that he could have served nine
years and three-hundred and sixty-four days of supervised release, violated the terms of his
release, and then unjustly be sentenced to the full ten years in prison.

        As respondent correctly notes, this Court has upheld the constitutionality of the
imposition of supervised release under West Virginia Code § 62-12-26 in addition to the
statutory sentence for the crime. See State v. James, 227 W.Va. 407, 710 S.E.2d 98 (2011).2 The
scenario painted by petitioner is not presented by the facts of this case. Here, the court showed
leniency by only imposing a thirty-day sentence following the first revocation of petitioner’s
supervised release. Petitioner’s complaint that the ten-year sentence is unjust does not constitute
an abuse of discretion as his continued violations gave the circuit court every reason to impose
the full ten years. Additionally, petitioner’s claim that he should be granted credit for time served
is flatly inconsistent with the plain language of West Virginia Code § 62-12-26(g)(3). If
supervised release is to have any meaning, then violations thereof must have consequences.
Accordingly, we see no error in the order of the circuit court.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.

ISSUED: February 18, 2014

CONCURRED IN BY:

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




       2
           Petitioner did not appeal his initial sentence.
                                                    3

