                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                      FILED
                                                                            September 5, 2017
vs) No. 16-0600 (Preston County 15-F-53)                                          RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
Robert Michael Larue,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
       Petitioner Robert Michael Larue, by counsel Jeremy B. Cooper, appeals the Circuit Court
of Preston County’s June 6, 2016, order sentencing him to two years of incarceration and ten
years of supervised release. The State of West Virginia, by counsel David A. Stackpole, filed a
response. On appeal, petitioner argues that the circuit court considered an impermissible factor in
sentencing him.

        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.

        On October 20, 2015, the Preston County grand jury indicted petitioner on three felony
counts of distributing and exhibiting material depicting minors engaged in sexually explicit
conduct, in violation of West Virginia Code § 61-8C-3 (1988).1 Petitioner entered into a plea
agreement whereby he pled guilty to one count of distributing and exhibiting material depicting
minors engaged in sexually explicit conduct and the State dismissed the remaining two counts,
agreed to forego prosecuting him in another matter, and agreed to leave sentencing to the trial
court and not oppose probation.

       On June 6, 2016, petitioner’s sentencing hearing was held. At that hearing, the circuit
court denied petitioner’s request for probation

               because the Court finds that you’re a high risk to re-offend. The
               Court is considering the recommendations of the Probation Office
               and Dr. Baker[, who conducted a pre-sentencing psychological

       1
       Petitioner was indicted and convicted under the 1988 version of this statute. The statute
was amended in 2014.


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               evaluation and sex offender risk assessment]. The Court is also
               considering this is in the Court’s opinion a crime of violence, and
               it is not appropriate to grant probation or alternative sentence in
               your case.

Petitioner was sentenced to a determinate two-year term of incarceration and ten years of
supervised release.

        On appeal, petitioner argues that the circuit court considered an impermissible factor in
sentencing him. Namely, petitioner contends that the circuit court erred in characterizing his
offense as a crime of violence and in using that characterization to deny him an alternative
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, 273, 496 S.E.2d 221, 223 (1997).2 Moreover,
“[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, 366, 287 S.E.2d 504, 505 (1982). We note first that petitioner’s sentence is within
the applicable statutory limitations. Specifically, West Virginia Code § 61-8C-3 (1988) provides
that, upon conviction, an individual “shall be imprisoned in the penitentiary not more than two
years, and fined not more than two thousand dollars.” Thus, to be entitled to review, petitioner
must establish that his sentence was based on an impermissible factor.

        Petitioner claims that the circuit court’s characterization of his crime as one of violence
constitutes an impermissible factor. In support of his argument, petitioner claims that West
Virginia Code § 62-12-2, which addresses eligibility for probation, does not preclude probation
for those convicted of crimes involving acts of violence against a person. We disagree. During
the pendency of this appeal, this Court decided State v. Riggleman, -- W.Va. --, 798 S.E.2d 846
(2017). In Riggleman, we held that

                       [d]istributing and exhibiting material depicting minors
               engaged in sexually explicit conduct in violation of West Virginia
               Code § 61-8C-3 (2014) is a crime that ‘involve[s] an act of
               violence against a person’ within the meaning of West Virginia
               Code § 27-6A-3(h) (2013) because it derives from and is
               proximately linked to physical, emotional, and psychological harm
               to children.



       2
         Petitioner contends that he is asserting an error of statutory or constitutional dimension
and urges application of a de novo standard of review. See State v. Finley, 219 W.Va. 747, 749,
639 S.E.2d 839, 841 (2006) (“The issue in this case calls on us to examine a question of
constitutional dimension and as such, ‘[w]here the issue on an appeal from the circuit court is
clearly a question of law . . . we apply a de novo standard of review.’” (citation omitted)).
Petitioner, however, fails to state what statutory or constitutional command was violated.
Accordingly, this Court declines to apply a de novo standard of review.


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Syl. Pt. 5, Riggleman, -- W.Va. at --, 798 S.E.2d at 848. Thus, the circuit court’s characterization
was not improper.

        Further, “[p]robation is a matter of grace and not a matter of right.” Syl. Pt. 1, State v.
Rose, 156 W.Va. 342, 342, 192 S.E.2d 884, 885 (1972). West Virginia Code § 62-12-2 does not
mandate probation in any instance; rather, it outlines the circumstances under which an
individual is eligible for probation. The statute addresses eligibility for probation, not the
appropriateness of probation in a given case. Lastly, petitioner has failed to cite any authority
that consideration of the nature of an individual’s crime constitutes an impermissible factor. For
these reasons, the circuit court did not abuse its discretion in sentencing petitioner.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.

ISSUED: September 5, 2017

CONCURRED IN BY:

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




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