          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                  January 2016 Term

                                  _______________
                                                                               FILED

                                                                            June 3, 2016

                                                                            released at 3:00 p.m.
                                    No. 15-0115
                          RORY L. PERRY II, CLERK

                                  _______________                       SUPREME COURT OF APPEALS

                                                                             OF WEST VIRGINIA


                             STATE OF WEST VIRGINIA,

                              Plaintiff Below, Respondent


                                          v.

                             TIMOTHY PAUL SHAFER,

                             Defendant Below, Petitioner


       ____________________________________________________________

                   Appeal from the Circuit Court of Kanawha County

                          The Honorable Louis Bloom, Judge

                             Criminal Action No. 14-F-227


                                     AFFIRMED


       ____________________________________________________________

                               Submitted: March 3, 2016

                                  Filed: June 3, 2015


Brian D. Yost, Esq.                            Patrick Morrisey, Esq.
Holroyd & Yost                                 Attorney General
Charleston, West Virginia                      Katlyn M. Miller, Esq.
Counsel for the Petitioner                     Assistant Attorney General
                                               Charleston, West Virginia
                                               Counsel for the Respondent


JUSTICE BENJAMIN delivered the Opinion of the Court.
                             SYLLABUS BY THE COURT


              1.     “‘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 W. Va. 407, 710 S.E.2d 98 (2011).



              2.     “‘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.’ Syllabus

Point 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).” Syl. pt. 6, State v.

Slater, 222 W. Va. 499, 665 S.E.2d 674 (2008).



              3.     “Punishment may be constitutionally impermissible, although not

cruel or unusual in its method, if it is so disproportionate to the crime for which it is

inflicted that it shocks the conscience and offends fundamental notions of human dignity,

thereby violating West Virginia Constitution, Article III, Section 5 that prohibits a

penalty that is not proportionate to the character and degree of an offense.” Syl. pt. 5,

State v. Cooper, 172 W. Va. 266, 304 S.E.2d 851 (1983).



              4.     “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

                                             i
jurisdictions, and a comparison with other offenses within the same jurisdiction.” Syl. pt.

5, Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981).




              5.     “Life imprisonment without possibility of parole is not cruel and


unusual punishment for first-degree murder. U.S.Const. amends. XIV and VIII;


W.Va.Const. art. III, § 5.” Syl. pt. 1, State ex rel. Leach v. Hamilton, 280 S.E.2d 62, 64


(W. Va. 1980).




                                            ii

Benjamin, Justice:

              In this appeal, petitioner Timothy Shafer challenges his sentence of life in

the penitentiary without mercy for his felony murder conviction. Having carefully

reviewed Mr. Shafer’s case, we find no error in his sentence.



                I. FACTUAL AND PROCEDURAL BACKGROUND

              In early 2014, Mr. Shafer was a drug addict, using heroin and

methamphetamine. He contends that his girlfriend at the time, Megan Hughes, was also

addicted to drugs and that they would use drugs together.



              Mr. Shafer, Ms. Hughes, and a friend of the couple, Jessica Wilson,

conspired to rob Nancy Lynch (“the victim”) of money to buy illegal drugs. The victim

was sixty-six years old, and she lived alone with her dog, Hazel, in St. Albans, West

Virginia. Mr. Shafer claimed he and Ms. Hughes got the idea to rob the victim after he

and Hughes had a chance encounter with the victim. During the encounter, the victim told

Mr. Shafer and Ms. Hughes that she had been robbed three or four times in the past but

that she did not report the robberies because she feared repercussions from the robbers.



              Sometime on the evening of January 3 or 4, 2014, Mr. Shafer and Ms.

Wilson decided to rob the victim in her home. Mr. Shafer maintains that he targeted the

victim because he did not believe she would report the robbery. There is no evidence in


                                            1

the record to suggest that Mr. Shafer or Ms. Wilson were under the influence of drugs at

this time. Mr. Shafer and Ms. Wilson left on foot from Ms. Wilson’s home. According to

Mr. Shafer, he took a toy gun and put it in his pants, intending to use it to threaten the

victim. He contended that Ms. Wilson took a long kitchen knife and put it in her pants.

Neither Mr. Shafer nor Ms. Wilson wore masks or gloves. Mr. Shafer claims that he did

not believe any violence would be necessary to rob the victim.



              When Mr. Shafer and Ms. Wilson arrived at the victim’s home, the victim

was not there. They waited for her, and she later returned home from a shopping trip to

K-Mart. Mr. Shafer, Ms. Wilson, and the victim spoke together outside the home until

Mr. Shafer lifted his shirt so that the victim could see the gun and insisted that they all go

into the house. Mr. Shafer later told police that the victim did not take him seriously. In

response to the victim’s indifference, he asserts that Ms. Wilson pulled the knife out of

her pants and pushed the victim inside. Once inside the house, Ms. Wilson demanded

money and pills. The victim told Ms. Wilson that she had $13 in her purse, but upon

inspection of the purse, Ms. Wilson found $16 and an ATM card. According to Mr.

Shafer, Ms. Wilson ordered the victim to provide her with the pin number to the card, but

the victim responded with a string of different numbers.



              Mr. Shafer theorized that Ms. Wilson was angered by the victim’s lies

about the amount of money in the purse and the ATM card pin number. He told police


                                              2

that Ms. Wilson told him to look away, and that as soon as he looked away, Ms. Wilson

began quickly stabbing the victim in the chest and neck area. Mr. Shafer said he turned

around as soon as he heard the stabbing and watched Ms. Wilson stab the victim to death.

The victim was stabbed nineteen times. After the victim fell to the floor, Ms. Wilson

covered her with a blanket. Ms. Wilson put the victim’s dog, which had been outside

during the attack, in the house.



              Directly after the killing, Mr. Shafer and Ms. Wilson left the victim’s house

with the victim’s ATM card, two pistols, a camera with lenses, jewelry, and prescription

medications. They tried to withdraw cash using the ATM card, but the pin numbers they

tried failed. They returned to Ms. Wilson’s home where Ms. Hughes was waiting. Ms.

Hughes sorted through the stolen property. Mr. Shafer and Ms. Wilson then went back to

the victim’s home to steal one of the victim’s cars. Mr. Shafer used the stolen car to drive

to a separate location where he traded the victim’s property for heroin, prescription

narcotics, and $150. He used the money he acquired to buy methamphetamine from

another person. Upon acquiring the drugs, Mr. Shafer drove back to Ms. Wilson’s home

where he, Ms. Wilson, and Ms. Hughes used the drugs.



              The next day, Mr. Shafer returned to the victim’s home with Ms. Hughes.

They took jewelry, pills, a flat-screen television, and the victim’s checkbook from the

home. Within a week of the victim’s death, Mr. Shafer and Ms. Hughes again went to the


                                             3

victim’s home to take the victim’s second car. Mr. Shafer asserted that the victim’s dog

was alive during these trips. Mr. Shafer, Ms. Wilson, and Ms. Hughes pawned the

victim’s jewelry, sold one of the two cars for scrap, and Mr. Shafer used the victim’s

checkbook to write six checks to himself.



              Sometime during the weeks following the victim’s death, Mr. Shafer took

the victim’s mail, which had been accumulating in her mailbox, after Ms. Wilson told

him she had seen a police officer near the house. A neighbor who was concerned that she

had not seen the victim called the police. The police visited the victim’s home twice but

could see no evidence of foul play and noted that the victim’s doors were locked.



              A friend discovered the victim’s decaying body on January 26, 2014. The

friend had gone to the victim’s home to check on her. When she arrived at the home, she

found a door unlocked and went inside. In addition to finding her friend dead, the friend

also found the dead body of the victim’s dog. Police believed the dog’s death was the

result of neglect.



              Mr. Shafer, Ms. Wilson, and Ms. Hughes were all arrested in connection

with the victim’s murder and the burglary of her home. Mr. Shafer was indicted on

multiple felony charges, including first degree murder. The State made a plea offer to Mr.

Shafer. The plea offer required Mr. Shafer to plead guilty to one count of first degree


                                            4

murder in the commission of the felony offense for first degree robbery (felony murder),1

one count of conspiracy, three counts of burglary by breaking and entering, and two

counts of grand larceny. In exchange, the State agreed to recommend that the circuit court

sentence Mr. Shafer to life with mercy on the felony murder charge. The State also

agreed to stand silent on the issue of whether his sentences should run consecutive or

concurrent to each other. Mr. Shafer accepted the plea offer.



              A plea hearing took place on July 11, 2014. During the plea hearing, Mr.

Shafer answered in the affirmative each time he was asked if he understood that the

State’s recommendations as to sentencing were not binding upon the court. By order

entered on July 11, 2014, the circuit court accepted Mr. Shafer’s guilty plea to one count

of conspiracy, three counts of burglary by breaking and entering, first degree murder, and

two counts of grand larceny.



              The Division of Probation Services prepared a presentence investigation

report in advance of sentencing. The report revealed that as a juvenile, Mr. Shafer was

arrested and charged with breaking and entering for which he was sentenced to twenty­


       1
         Specifically, the plea offer provided that Mr. Shafer would plead guilty to “the
felony offense of Murder in the First Degree, to-wit: Murder in the Commission of the
Felony Offense of First Degree Robbery.” See W. Va. Code § 61-2-1 (1991) (“Murder . .
. in the commission of, or attempt to commit . . . robbery . . . is murder in the first
degree.”).


                                            5

four hours of community service. In addition to being charged with a string of driving

related offenses between 2004 and 2011, Mr. Shafer was convicted for attempting to

commit daytime burglary in 2010 and was placed on probation with day report

programming, the terms of which he violated twice. Mr. Shafer also has an extensive

history of illicit drug use and addiction. According to the report, Mr. Shafer left school in

eighth grade but later acquired his GED and one college credit while incarcerated. The

report concludes that Mr. Shafer would be likely to reoffend if he did not receive a very

high level of supervision and treatment and that “he has little regard for human life.”



              A sentencing hearing was held on August 22, 2014. The circuit court heard

statements from Mr. Shafer, parties’ counsel, and family of the victim. Mr. Shafer told

the court:

                      I’d again like to apologize to the family. There’s no
              excuse or reason for the things that happened. If I could take
              it all back, I would. I know that doesn’t make anything right.
              I’ll never be able to, to say exactly how sorry I am. At this
              time I just - - I’m ready to take my punishment because I
              know I did - - the things that I did was [sic] wrong. It was all
              over a stupid drug habit.

When asked by the court about “continuing to violate the decedent by going back to her

home time after time after time,” Mr. Shafer said:

                     There is no excuse. I mean, I look back on things now that,
              you know, I, you know, I haven’t done anything; and I look on
              things now and I just - - there is no excuse for the things that was
              [sic] done. There will never be any kind of excuse for any kind, any
              kind of behavior like that, whether it be on drugs or not on drugs, for
              anyone.

                                             6

              The State’s counsel recommended that the court sentence Mr. Shafer to life

in the penitentiary with mercy for his participation in the victim’s murder. The State

explained that the recommendation of mercy was based on Mr. Shafer’s cooperation with

the State in other criminal investigations, including those of his co-defendants.



              A relative of the victim, Judy Cleary, asked the circuit court to sentence Mr.

Shafer to life in the penitentiary without mercy. She gave the following statement:

                      First and foremost, no apology will ever be accepted
              by this family. You made your choices, and now you must
              live with the consequences of your actions. . . .
              There are thousands of things I would like to say, but my
              breath would be wasted when it comes to the man in question.
              I do, however, want him to know that Nancy and her beloved
              dog, Hazel, may be an urn in the ground but they are together
              and they are at peace. He knows what happened that night in
              January. He was part of it, and he made a choice that put them
              there.
                      I pray this murderer never has the same type of peace
              that they are experiencing together now. . . .
                      Please, Judge Bloom, give this person the maximum
              that you can, and without mercy, for the choices he made on
              the way to a senseless murder of an innocent 66-year-old
              woman. My family and I have suffered enough.

Another relative, Sue White, made a similar request, stating:

                      And to Judge Bloom, I just - - what he has done to our
              family, what he did to Nancy - ­
                      ....
                      I just hope that you can throw, as they say on
              television, the book at him and throw away the key and just
              help the family heal, because this was such a horrific thing for

                                             7
               us, to happen to a 66-year-old woman, defenseless. And it’s ­
               - please. Thank you.



               Following Ms. White’s statement, the Court told Mr. Shafer:

                      All right, Mr. Shafer, not only was this a very cold and
               horrible act that you committed, you compounded it by going
               back time after time. You had the opportunity when you
               committed your earlier crime that you ultimately went to the
               penitentiary for to get drug treatment and help. You had help
               while you were in the penitentiary. You ignored all of those
               opportunities. You needlessly, senselessly caused and
               participated in the death of this poor victim and caused this
               grief to this family. You set a great deal of unrest in this
               community because of the horrifying facts of this case.
                      It’s the judgment of this Court you be sentenced to the
               penitentiary for the remainder of your natural life.



               Pursuant to the circuit court’s August 25, 2014, sentencing order, Mr.

Shafer received an indeterminate sentence of one to five years for conspiracy, one to

fifteen years on each conviction for burglary by breaking and entering, a life sentence

without mercy for felony murder, and one to ten years on each conviction for grand

larceny. The sentences were set to run consecutive to each other. The court did not order

restitution.




                                             8

              On December 17, 2014, Mr. Shafer filed a motion pursuant to Rule 35 of

the West Virginia Rules of Criminal Procedure,2 requesting that the circuit court

reconsider the sentence. Specifically, he requested that the court sentence him to life with

mercy on the felony murder conviction and order that his sentences for the other

convictions be set to run concurrently to each other. He did not allege that his sentence

was illegal in this motion. By order entered January 12, 2015, the circuit court denied the

motion, stating that “[t]he [c]ourt finds after consideration of the facts and circumstances

that the sentence is proper.”



              Mr. Shafer now appeals his sentence to this Court.



                                II. STANDARD OF REVIEW

              In this appeal, Mr. Shafer only challenges the circuit court’s sentence of life

without mercy on the felony murder conviction. He alleges that the sentence is

unconstitutional and that the circuit court abused its discretion in imposing the sentence.

“‘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,


       2
          Rule 35 of the West Virginia Rules of Criminal Procedure allows a court to
correct an illegal sentence at any time or to reduce a sentence when particular conditions
set forth in the rule are met.


                                             9

State v. James, 227 W. Va. 407, 710 S.E.2d 98 (2011). In applying this standard, we

recognize that “[a]lthough this Court may not necessarily have obtained the same result

had we been presiding over a case determined by a lower court, our mere disagreement

with such a ruling does not automatically lead to the conclusion that the lower court

abused its discretion.” State v. Allen, 208 W. Va. 144, 155, 539 S.E.2d 87, 98 (1999). The

lower court should only be overruled where the reviewing court has “‘a firm conviction

that an abuse of discretion has been committed.’” Id. (quoting Jordache Enters., Inc. v.

Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 204 W. Va. 465, 473, 513 S.E.2d 692, 700

(1998)).



              Additionally, we have 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. 6, State v. Slater, 222 W. Va. 499, 665 S.E.2d 674 (2008).



                                     III. ANALYSIS

             A. Mr. Shafer’s sentence does not violate the proportionality
                   requirement in the West Virginia Constitution.

              Mr. Shafer contends that his sentence of life without mercy for his felony

murder conviction violates the proportionality requirement set forth in Article III, Section

5 of the West Virginia Constitution. This provision of our Constitution prohibits the

infliction of “cruel and unusual punishment,” and it mandates that, “[p]enalties . . . be

                                            10

proportioned to the character and degree of the offence.” Id.; see also syl. pt. 8, State v.

Vance, 164 W. Va. 216, 262 S.E.2d 423 (1980) (recognizing that Article III, Section 5 of

the West Virginia Constitution is the counterpart to the Eighth Amendment to the United

States Constitution).3 “As to the ordinary criminal statute, we have traditionally held that

the Legislature has a broad power in defining offenses and prescribing punishments,

limited in severity only by the constitutional prohibition against cruel or unusual or

disproportionate sentences.” Wanstreet v. Bordenkircher, 166 W. Va. 523, 533, 276

S.E.2d 205, 211 (1981).



              The Court uses two tests for determining whether a sentence violates the

proportionality requirement set forth in our Constitution. State v. Mann, 205 W. Va. 303,

314–15, 518 S.E.2d 60, 71–72 (1999). The first test is subjective and requires that the

Court determine whether the sentence “shocks the conscience and offends fundamental

notions of human dignity.” Syl. pt. 5, in part, State v. Cooper, 172 W. Va. 266, 304

S.E.2d 851 (1983). If the Court decides that the sentence shocks the conscience, then the

Court need not proceed to the second test. Mann, 205 W. Va. at 315, 518 S.E.2d at 72. In

determining whether a sentence shocks the conscience, we consider all of the

circumstances surrounding the offense, the information contained in the presentence


       3
         Mr. Shafer alleges that his sentence violates the West Virginia Constitution, but
he does not allege that his sentence also violates the United States Constitution. Our
analysis of the proportionality of his sentence is limited accordingly.


                                            11

investigation report, and findings made by the trial court. State v. Phillips, 199 W. Va.

507, 513, 485 S.E.2d 676, 682 (1997). However, if the sentence is not subjectively

unconstitutional, then the Court must proceed to examine the sentence using an objective

test. Id. The objective test requires that the Court consider (1) “the nature of the offense,”

(2) “the legislative purpose behind the punishment,” (3) how the punishment compares

“with what would be inflicted in other jurisdictions,” and (4) how the punishment

compares to the punishments of “other offenses within the same jurisdiction.” Syl. pt. 5,

in part, Wanstreet, 166 W. Va. 523, 276 S.E.2d 205.



                              1. The subjective component.

              Mr. Shafer contends that because Ms. Hughes selected the victim for the

robbery, because he did not believe that harm would befall the victim, because he did not

inflict the harm resulting in the victim’s death, because he has been cooperative with

investigators and the State, and because he was twenty-nine years old at sentencing, he

should have been granted mercy. A sentence of life without mercy under these facts, Mr.

Shafer says, shocks the conscience and offends fundamental notions of human dignity.



              The State counters Mr. Shafer’s argument by pointing to different facts:

Ms. Hughes and Mr. Shafer targeted the victim, believing she was vulnerable because she

had not reported prior robberies; Mr. Shafer intended to frighten the victim with a fake

gun; he did not intervene to try to save the victim; he returned to the victim’s home—


                                             12

which contained the victim’s decomposing body—multiple times to steal the victim’s

belongings; he attempted to thwart police investigation by taking the victim’s mail; he

left the victim’s dog without care, and the dog died; he had a criminal history; and he had

a substantial drug habit for which, when given the opportunity after his 2010 conviction

to rehabilitate himself, he did not do so. The State asserts that “[a] sentence of life in

prison for participating in cold and calculated actions which led directly to [the victim’s]

death, committed by a selfish, insensitive recidivist is not shocking to the conscience.”



              The circuit court characterized the facts of this case as “horrible” and

“horrifying,” noting that Mr. Shafer has compounded his participation in the victim’s

death by returning to the victim’s home time after time to steal more of the victim’s

belongings. The court recognized that Mr. Shafer ignored opportunities to get help for his

drug addiction, that he caused the victim’s family to suffer, and that his actions greatly

disrupted the community.



              The punishment in the case at bar is similar to that imposed upon the

defendant in State v. Tesack, 181 W. Va. 422, 383 S.E.2d 54 (1989). In Tesack, four

participants, including defendant Franklin Tesack, orchestrated the burglary of the home

of William Pearson and his wife. During the burglary, defendant Tesack served as the

lookout and the getaway driver. Id. at 425, 383 S.E.2d at 57. When two of the participants

had difficulty breaking into the home, they radioed defendant Tesack, and defendant


                                            13

Tesack dispatched a third participant to aid the other two. Id. During the burglary, Mr.

Pearson was wounded, and his wife was fatally shot. Id. at 424–25, 383 W. Va. at 56–57.

Defendant Tesack was convicted of conspiracy, burglary, two counts of attempted

robbery, felony murder, and assault during the commission of a felony. Id. at 425, 383

S.E.2d at 57. For the felony murder conviction, defendant Tesack was sentenced to life in

the penitentiary without a recommendation of mercy, and this Court upheld that sentence.

Id. at 428, 383 S.E.2d at 60 (“The portion of the circuit court’s order sentencing the

defendant to life in the penitentiary without a recommendation of mercy for [felony]

murder . . . is affirmed.”).



               Mr. Shafer’s actions are more egregious than defendant Tesack’s. While

both Mr. Shafer and defendant Tesack were involved in planning their respective

burglaries, unlike defendant Tesack, Mr. Shafer was an active participant in the breaking

and entering of the victim’s home. Mr. Shafer threatened the victim, and he stood by as

he watched Ms. Wilson kill the victim. After the victim’s death, Mr. Shafer proceeded to

return to her home to steal more of her belongings, and he stole the victim’s mail to

thwart police investigation.



               With the strongest conviction, we conclude that the facts surrounding Mr.

Shafer’s involvement in the victim’s death warrant the sentence imposed by the circuit

court. Mr. Shafer’s decision to target, threaten, and frighten a vulnerable, elderly woman


                                           14

was calculated and deliberate. His repeated ransacking of the victim’s home, his neglect

of the victim’s dog, and his attempt to thwart police investigation all show his utter

disregard for the sanctity of life and his lack of remorse for his involvement in the

victim’s murder. Since before his incarceration in 2010, he has made little effort to

conform his behavior to law, having chosen to perpetuate his drug habit and reject

opportunities to alleviate his addiction. In light of the totality of Mr. Shafer’s conduct,

and given that his sentence falls within the statutory limits imposed for felony murder,

the sentence imposed upon him does not shock the conscience or offend fundamental

notions of human dignity. His heinous actions justify his permanent removal from

society. Consequently, we must proceed by evaluating Mr. Shafer’s sentence pursuant to

the objective test set forth in syllabus point 5 of Wanstreet.



                               2. The objective component.

              a. The nature of the offense. The crime connected to the sentence at

issue—felony murder—is a felony. To commit this crime, another felony—arson,

kidnapping, sexual assault, robbery, burglary, breaking and entering, escape from lawful

custody, or a felony offense of manufacturing or delivering a controlled substance—must

also be committed. W. Va. Code § 61-2-1. In this case, the underlying felony giving rise

to the felony murder conviction is first degree robbery. With regard to robbery, the court

has observed that “[r]obbery has always been regarded as a crime of the gravest

character.” Mann, 205 W. Va. at 315, 518 S.E.2d at 72 (quoting State v. Glover, 177 W.


                                              15

Va. 650, 659, 355 S.E.2d 631, 640 (1987)); see also State v. Ross, 184 W. Va. 579, 582,

402 S.E.2d 248, 251 (1990) (“Aggravated robbery in West Virginia has been recognized

as a crime that involves a high potentiality for violence and injury to the victim

involved.”). As a violent crime, the Court has observed that the Legislature “has provided

circuit courts with broad, open-ended discretion in sentencing individuals for the

offense[] of aggravated robbery.” Phillips, 199 W. Va. at 514, 485 S.E.2d at 683; see also

State v. Woods, 194 W. Va. 250, 254, 460 S.E.2d 65, 69 (1995) (“The Legislature chose

not to deprive trial courts of discretion to determine the appropriate specific number of

years of punishment for armed robbery, beyond ten.” (internal quotation omitted)).

Similarly, the Court has recognized that “first-degree murder is a most heinous crime”

and that the Legislature has permitted the imposition of “the severest penalty in West

Virginia” for that crime: life imprisonment without the possibility of parole. State ex rel.

Leach v. Hamilton, 280 S.E.2d 62, 64 (W. Va. 1980).



              Mr. Shafer attempts to mitigate the seriousness of the nature of his crime by

arguing that his murder conviction did “not require a showing of malice, premeditation,

or a specific intent to kill” on his part, and that “[t]here is a very low level of proof

required for the state to obtain a conviction for felony murder.” We are unmoved by Mr.

Shafer’s argument. The Legislature’s intent is clear: The nature of felony murder, which

is placed on par with all other types of first degree murder in West Virginia Code § 61-2­

1, is equivalent to the nature of the other types of first degree murder. Furthermore, we


                                            16

disagree with Mr. Shafer’s contention that there is a low level of proof required to obtain

a conviction for felony murder. On the contrary, to convict a defendant of felony murder,

the State must prove the following elements: “(1) the commission of, or attempt to

commit, one or more of the enumerated felonies; (2) the defendant’s participation in such

commission or attempt; and (3) the death of the victim as a result of injuries received

during the course of such commission or attempt.” State v. Williams, 172 W. Va. 295,

311, 305 S.E.2d 251, 267 (1983).



              b. The legislative purpose behind the punishment. West Virginia Code §

61-2-2 (1965) and § 62-3-15 (1994) provide that the sentence for a conviction for first

degree murder is confinement in a penitentiary for life. However, if granted mercy, a

defendant may become eligible for parole after serving at least fifteen years of his

sentence. W. Va. Code § 62-3-15. The harsh penalty for first degree murder reflects the

seriousness of the crime. Cf. Mann, 250 W. Va. at 316, 518 S.E.2d at 73. While this

Court has never spoken directly to the Legislature’s purpose in providing such a harsh

penalty, other jurisdictions have recognized that “[a]n obvious purpose of the felony

murder statute, or any murder statute, is to protect human life.” State v. Greco, 579 A.2d

84, 91 (Conn. 1990); see also Talancon v. State, 721 P.2d 764, 768 (Nev. 1986) (“[T]he

felony murder statute seeks to protect against homicides.”). This is accomplished through

punishment and deterrence. See Todd v. State, 884 P.2d 668, 686 (Alaska Ct. App. 1994)

(“[I]f the increased punishment for an unintended homicide does not deter people from


                                            17

committing dangerous felonies, it will at least encourage criminals to plan and carry out

such crimes with increased regard for physical dangers.” (internal quotation omitted));

Santiago v. State, 874 So. 2d 617, 621 (Fla. Dist. Ct. App. 2004) (“[T]he purpose of the

felony murder statute [is] to protect society by imposing just punishment and, perhaps to

some degree, deter future crime . . . .”).



              At common law, “the commission of, or the attempt to commit, any felony

which resulted in a homicide was deemed murder.” State v. Sims, 162 W. Va. 212, 221,

248 S.E.2d 834, 839 (1978). Further, at common law, “all murder was punishable by

death.” Id. at 221, 248 S.E.2d at 840. By limiting the felonies that may provide the basis

for a felony murder conviction, the Legislature specifically delineated the crimes that are

of such a serious nature as to warrant punishment as first degree murder when the

commission of those crimes results in a victim’s death. See id. (observing that the

Legislature “establish[ed] categories of the common law crimes of murder for the

purpose of setting degrees of punishment”). The Legislature intended that a killing

occurring during a robbery be punished as first degree murder, even where the killing

was not intended by the defendant. See id. at 228, 248 S.E.2d at 843 (“No case, either

from this Court or from the Virginia court, has ever broken from the historical common

law precedent to suggest that proof of an intentional killing is an element of the felony-

murder crime.”).




                                             18

              c. A comparison of the punishment with other jurisdictions. The vast

majority of states permit prosecution for felony murder. But see Garringer v. State, 909

P.2d 1142, 1148–49 n.11 (Haw. 1996) (noting that Hawaii’s felony murder statute was

repealed); Bennett v. Commonwealth, 978 S.W.2d 322, 327 (Ky. 1998) (“With the

adoption of the penal code, the felony murder doctrine was abandoned as an independent

basis for establishing an offense of homicide in Kentucky.”); People v. Aaron, 299

N.W.2d 304, 324 (Mich. 1980) (abolishing the common-law doctrine of felony murder).

Of these states, most recognize robbery as a predicate to the crime, and they permit the

penalty provided under West Virginia law: life imprisonment. See, e.g., Colo. Rev. Stat. §

18-1.3-401 (2015) (providing that the minimum sentence for a Class 1 felony is life

imprisonment); Colo. Rev. Stat. § 18-3-102 (2000) (defining felony murder as a Class 1

felony); Ga. Code Ann. § 16-5-1 (2014) (permitting life imprisonment for felony

murder). While West Virginia does not have the death penalty, other states permit the

death penalty—a greater punishment than life imprisonment—for felony murder. See,

e.g., Colo. Rev. Stat. § 18-1.3-401; Ga. Code Ann. § 16-5-1. In the jurisdictions that

recognize felony murder, the punishment for the crime varies depending on the specific

facts of the case. Mr. Shafer’s conduct is comparable to conduct in other jurisdictions that

has provided the basis of a life without mercy sentence. See, e.g., Skinner v. State, 575

A.2d 1108 (Del. 1990) (sentencing a defendant to life imprisonment without the

possibility of parole where, during a robbery, a codefendant killed the victim); People v.

Perkins, Nos. 259865, 259866, 260161, 2006 WL 1330320 (Mich. Ct. App. May 16,


                                            19

2006) (sentencing a defendant to life imprisonment without the possibility of parole

where, during a robbery, a codefendant killed the victim); cf. State v. Bonnett, 502 S.E.2d

563 (N.C. 1998) (upholding a death sentence for felony murder premised on robbery

where the homicidal act was committed by a codefendant); Dutton v. State, 188 S.E.2d

794 (Ga. 1972) (granting mercy for felony murder where defendant, the driver during the

burglary, learned from his companions when they returned to the vehicle that they had

committed the homicide).



              d. A comparison of the punishment with other offenses within the

State. In our evaluation of this factor of the objective test, we begin by noting that we

have held that “[l]ife imprisonment without possibility of parole is not cruel and unusual

punishment for first-degree murder. U.S.Const. amends. XIV and VIII; W.Va.Const. art.

III, s 5.” Syl. pt. 1, Hamilton, 280 S.E.2d 62. Aside from first degree murder, which

includes felony murder, the only other crime that mandates a life sentence in West

Virginia is kidnapping. W. Va. Code § 61-2-14a (2012). Mercy, which carries the

possibility of parole, may be withheld in sentencing for either crime.



              A defendant can also receive an effective life sentence for certain crimes.

For instance, a conviction for robbery requires a minimum sentence of ten years

incarceration, but the controlling statute does not place an upper limit on the sentence that

may be imposed. W. Va. Code § 61-2-12 (2000); see also State v. England, 180 W. Va.


                                             20

342, 356, 376 S.E.2d 548, 562 (1988) (affirming a life sentence with the possibility of

parole after ten years for aggravated robbery where the defendant had a criminal history,

and the defendant presented a firearm and fired three shots during the course of the

robbery); Glover, 177 W. Va. at 659, 355 S.E.2d at 640 (upholding defendant’s seventy-

five year sentence for aggravated robbery where defendant had a criminal history

spanning twenty years, his victim nearly died, and the presentence report described him

as “repeatedly violent” and a “danger to society”). Under certain circumstances, a

conviction for sexual assault can result in a sentence of twenty to one hundred years of

incarceration. W. Va. Code § 61-8B-3 (2006). While the punishments for almost all

offenses in West Virginia provide for less than a mandatory life sentence, the life

sentence for felony murder reflects the severity of the crime. See Sims, 162 W. Va. at

221, 248 S.E.2d at 840.



             In examining the punishments available in West Virginia for other offenses,

the Fourth Circuit of the United States Court of Appeals asked in Hart v. Coiner, 483

F.2d 136 (4th Cir. 1973), whether the court could be rationally urged that the defendant

was “as dangerous to society and as deserving of punishment as the murderer . . . and

kidnapper.” Id. at 142. As discussed in detail above, the nature of Mr. Shafer’s offense

was violent, heinous, and of the gravest character; the Legislature has intended that

killings incident to robberies be punished like all other first degree murder; other

jurisdictions have permitted punishment for the same crime under similar circumstances;


                                           21

and his participation in the events surrounding the killing committed during the robbery

of the victim is the type of behavior that indicates Mr. Shafer is a danger to society and

deserving of punishment as a murderer. Objectively, his sentence is proportional to his

crime.



             B. The circuit court did not abuse its discretion by rejecting
                        the State’s recommendation of mercy.

              This Court grants substantial deference to a lower court’s sentencing

decisions. As established supra, when the sentence at issue is within statutory limits and

is not tainted by an impermissible factor, we defer to the circuit court’s ruling. Mr. Shafer

does not dispute that his sentence falls within the statutory limits for his crime, and he

does not contend that the circuit court relied on an impermissible factor in sentencing

him.



              Mr. Shafer argues that the circuit court failed to give “any justifiable basis”

for its sentencing decision aside from the court’s recognition that he failed to treat his

drug problem. We disagree. First, the circuit court made a determination that Mr. Shafer

committed “a very cold and horrible act.” Mr. Shafer contends that the cold and horrible

act resulting in the victim’s death was committed not by him but by Ms. Wilson. Mr.

Shafer’s argument overlooks his participation in the events leading up to the killing,

including threatening the victim with a toy gun and standing by as Ms. Wilson threatened



                                             22

and stabbed the victim with a knife. These acts of Mr. Shafer are certainly cold and

horrible.



              Second, the circuit court determined that Mr. Shafer’s return to the victim’s

home was another aspect of his participation in the killing. Mr. Shafer argues that the fact

that he returned to the home after the murder should not justify his sentence of life

without mercy because his other sentences were related to his return to the home. On the

contrary, we find that Mr. Shafer’s repeated return to the victim’s home shows he lacked

remorse for his involvement in the victim’s death.



              Third, the circuit court determined that Mr. Shafer “caused and participated

in the death” of the victim. He planned the initial robbery with Ms. Wilson and Ms.

Hughes, and he and Ms. Wilson carried out that plan. While he may not have dealt the

deathblows to the victim, the victim and her dog might still be alive were it not for his

participation in planning and carrying out the robbery.



              Finally, the circuit court determined that Mr. Shafer’s actions harmed more

than just the victim; his participation in the victim’s murder “caused this grief to this

family.” All of the court’s given justifications support its decision to withhold mercy in

this case.




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                                   IV. CONCLUSION

              The circuit court’s August 25, 2014, order sentencing Mr. Shafer to life in

the penitentiary without mercy for his felony murder conviction does not offend the

Constitution and does not constitute an abuse of the circuit court’s discretion.



                                                                                   Affirmed.




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