                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                       FILED
                                                                            September 19, 2016
vs) No. 15-0884 (Randolph County 14-F-9)                                           RORY L. PERRY II, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
Jared Michael Iseli,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner Jared Michael Iseli, by counsel Philip Isner and Jeremy Cooper, appeals the
Circuit Court of Randolph County’s August 10, 2015, order sentencing him to prison for fifteen
to thirty-five years, a fine, restitution, and additional terms of sex-offender registration and
supervision upon his release from prison. The State, by counsel Shannon Frederick Kiser, filed a
response and a supplemental appendix. Petitioner filed a reply. On appeal, petitioner argues that
the circuit court erred in (1) considering an allegedly impermissible factor at sentencing, namely
his prior sexual conduct and his children; (2) relying on allegedly inaccurate information at
sentencing; (3) failing to sentence petitioner to a youthful offender program; and (4) committing
cumulative error causing him prejudice.

        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 December of 2013, petitioner, then twenty years old, was arrested for allegedly having
sexual intercourse on two occasions with an eleven-year-old girl. During an interview with
police, petitioner admitted that he and the victim had sexual intercourse on two occasions.
However, petitioner denied knowing that the victim was eleven years old. When police informed
him of her age, petitioner responded that she claimed she was thirteen years old.1 It appears that
petitioner and the victim met at a public park and, thereafter, continued contact through on-line
social media. On both occasions, petitioner arranged to pick the victim up at her home after her
parents had gone to sleep, drive her back to his residence, engage in sexual intercourse, and drive
her back to her neighborhood. Also on both occasions, petitioner dropped her off far enough
from her home to avoid being seen. The victim’s parents discovered the victim missing during
the second occasion, and her father found her walking back to their home after petitioner

       1
        While petitioner reported that the victim told him she was thirteen years old, it is
undisputed that the victim’s true age at that time was eleven years old.
                                                    1


dropped her off. The victim apparently reported petitioner’s conduct to her parents and provided
further details during a subsequent forensic interview.

       In February of 2014, petitioner was indicted on two counts of first-degree sexual assault.
Following the indictment, petitioner was evaluated by Dr. Bobby Miller, a forensic psychologist.
Dr. Miller’s report noted that petitioner had a sexual history with multiple females, including the
teenage “nonmarital” mothers of his two children, and that he had a low risk of reoffending.

        In November of 2014, petitioner entered into a plea agreement with the State by which he
would plead guilty to one count of first-degree sexual assault and the remaining count would be
dismissed. At the conclusion of petitioner’s plea hearing, the circuit court accepted his guilty
plea and scheduled the matter for sentencing. The circuit court also ordered the department of
adult probation to prepare a pre-sentence investigation report (“PSI”).

        In January of 2015, the circuit court granted a motion to continue petitioner’s sentencing
hearing on the grounds that the probation officer had not timely disclosed the PSI. After
petitioner properly received the PSI, he filed written objections to it citing what he claimed were
factual inaccuracies and erroneous conclusions.

        The circuit court held a sentencing hearing the following month. At the outset of that
hearing, petitioner placed his objections to the PSI on the record. As they relate to this appeal, he
objected to the PSI as follows: (1) that it inaccurately listed the ages of the two women with
whom he had prior sexual relationships such that they seemed younger than they were;2 (2) that
the conclusion that he displayed a pattern of preying on underage girls was incorrect and based
on the inaccurate ages reflected therein; (3) that it inaccurately reflected the circumstances by
which he met the victim; (4) that it incorrectly provided that petitioner knew the victim was
thirteen years old at the time they had sexual intercourse when, according to his argument, she
told him she was thirteen only after their final sexual encounter; and (5) that it inaccurately
reflected his work history and ability to remain employed.

         Following petitioner’s objections to the PSI at the sentencing hearing, the circuit court
discussed each of those objections with the parties and the probation officer who prepared the
PSI. The circuit court then heard from several witnesses, including petitioner’s mother, who
testified that he had a positive character, and a police officer, who testified about petitioner’s

       2
         Petitioner repeatedly claims that the circuit court and others inaccurately stated the ages
of his children’s mothers in these proceedings. However, petitioner fails to relay where in the
record these ages were correctly set forth below. From a review of the record on appeal, the ages
of petitioner and these two women at the time of each child’s conception and birth are not easily
discernable. Even petitioner’s own expert witness incorrectly informed the circuit court at the
final sentencing hearing that, at the time of conception for “the second [child], [petitioner] was
19[,] and [the child’s mother] was 19.” As to his first child, it appears that petitioner was sixteen
at the time of conception and birth and that his first child’s mother was thirteen at the time of
conception and fourteen at the time of birth. As to the second child, it appears that petitioner was
nineteen at the time of conception and twenty at the time of birth and that his second child’s
mother was seventeen at the time of conception and eighteen at the time of birth.
                                                     2


statement to police around the time of his arrest wherein he admitted that the victim told him she
was under the legal age of consent. At the conclusion of the hearing, the circuit court determined
that it had insufficient information to proceed with sentencing. As such, the circuit court ordered
petitioner to undergo an evaluation for diagnosis and classification with the Division of
Corrections (“DOC”). Further, the probation officer was ordered to respond in writing to
petitioner’s objections to the PSI. The sentencing hearing was rescheduled.

        Soon thereafter, the probation officer filed a written response to petitioner’s objections,
which was accompanied by an updated PSI, and the DOC submitted its diagnosis and
classification for petitioner. In his written response, the probation officer admitted that he
inaccurately reflected the women’s ages in the prior PSI. He maintained that the remaining facts
and conclusions were accurate to the best of his belief. The DOC’s report noted petitioner’s prior
sexual relationships and his children and recommended that petitioner receive alternative
sentencing or placement in a youthful offender program.

         In June of 2015, the circuit court held the final sentencing hearing. At the hearing, the
circuit court again heard from several witnesses, including petitioner’s mother, Dr. William
Fremouw (a psychologist petitioner retained to provide a sex-offender evaluation), and the
victim’s father. Dr. Fremouw, who also prepared a written report, testified that petitioner
demonstrated a low risk to reoffend.3 In both his testimony and report, Dr. Fremouw noted
petitioner’s sexual history with multiple teenage girls and the fact that he had children as a result
of those relationships. However, unlike the PSI, Dr. Fremouw concluded that petitioner did not
show a pattern of selecting underage girls because petitioner was himself underage or an adult
teenager during those prior relationships. Dr. Fremouw recommended that petitioner be
sentenced to an aggressive outpatient treatment program or a youthful offender program. At the
conclusion of Dr. Fremouw’s testimony, the circuit court asked him whether he had reviewed the
information from the PSI that petitioner (1) “continues to select young underage females for
sexual partners and often impregnates them”; (2) “has a poor work history”; (3) “[a]rticulates
little remorse for his actions”; and (4) “has present [sic] bond violation for the pending domestic
battery charge of [one of the mother’s of his children].”4 In response to the circuit court’s
question, Dr. Fremouw, and later petitioner’s counsel, argued that the probation officer was
incorrect to conclude in the PSI that petitioner selects underage females for sexual partners,
given the incorrect ages listed in the first PSI.5

       At that hearing, the victim’s father also testified that after petitioner’s criminal conduct
the victim attempted suicide; was relocated to a different school “because of threats and

       3
         In apparent contradiction to his testimony, Dr. Fremouw’s written report indicates that
petitioner demonstrated a low-to-moderate risk to reoffend.
       4
         The nature and outcome of the domestic battery charge referenced by the circuit court
are not clear from the record on appeal.
       5
         Neither Dr. Fremouw nor petitioner’s counsel responded fully and substantively to the
circuit court’s question as it related to petitioner’s work history, remorse, or domestic violence
charge.
                                                     3


intimidation” from petitioner’s supporters; and was in counseling for over one year. The victim’s
father also characterized petitioner as having been “stalking” and “cyberstalking” his daughter—
characterizations to which petitioner objected. In rebuttal to the victim’s father’s testimony,
petitioner submitted messages between petitioner and the victim that he claimed contradicted the
characterizations that he stalked or cyberstalked her.

        Following the introduction of evidence at the final sentencing hearing, petitioner moved
for alternative sentencing or placement in a youthful offender program. In support of his motion,
petitioner stated that a lengthy prison term would not allow him to support his two young
children. Conversely, the State requested that petitioner be sentenced to the maximum prison
term permitted by law. In pronouncing petitioner’s sentence, the circuit court noted that “[t]he
thing that bothers me the most in this case is a 20-year-old man having sex with an 11-year-old
girl, and he’s already had sex with two other women and had illegitimate children with both of
them.” Thereafter, the circuit court sentenced petitioner to the maximum prison term and also
imposed court costs, restitution, sex offender registration, HIV testing, and fifty years of
supervised release. This appeal followed.

        Generally, our standard of review for the circuit court’s findings and rulings in a criminal
case is as follows:

               In reviewing challenges to findings and rulings made by a circuit court, we
       apply a two-pronged deferential standard of review. We review the rulings of the
       circuit court concerning a new trial and its conclusion as to the existence of
       reversible error under an abuse of discretion standard, and we review the circuit
       court’s underlying factual findings under a clearly erroneous standard. Questions
       of law are subject to a de novo review.

Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 641, 535 S.E.2d 484, 485 (2000). Where specific
standards of review are necessary to discuss petitioner’s assignments of error, we provide them
below.

        On appeal, petitioner first assigns error to the circuit court’s consideration of his non-
marital, sexual relationships with two young women and the resulting children born “out of
wedlock.” In sum, petitioner argues that his “prior procreative history is an impermissible
sentencing factor, because it penalizes him for constitutionally protected conduct.” We have
often explained 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. 3, State v. Georgius, 225
W. Va. 716, 717, 696 S.E.2d 18, 19 (2010). It is undisputed that petitioner’s sentence was within
statutory limits. Therefore, the threshold question in our review of this issue is whether the
circuit court based its sentence on an impermissible factor.

       In support of his claim, petitioner cites the circuit court’s statement at the final sentencing
hearing regarding his “sex with two other women” and the resulting “illegitimate children” and




                                                      4


as well other references made to the women throughout the underlying proceedings.6 We first
note that it is apparent from the record on appeal that petitioner’s sexual history and children
were not the primary focus of the circuit court’s consideration at sentencing. To the contrary,
there were a host of factors, such as the substantial negative impact petitioner’s criminal conduct
had on the victim’s life, that were of serious import at the sentencing phase of this case.
Particularly, the circuit court seemed justly concerned with the fact that petitioner was almost
twice the age of his victim. However, to the extent the circuit court’s comment rose to the level
of a sentencing factor, we find no error.

         Given the particular circumstances of this case, which involved a sex-crime committed
against an eleven-year-old victim, the circuit court did not commit reversible error in considering
petitioner’s prior sexual history with two undisputedly teenage girls (notwithstanding his own
age at the time of those relationships) and the circumstances by which he had two children with
them. Several grounds in both law and fact undergird our conclusion. While petitioner repeatedly
asserts that there was nothing illegal about his sexual history and procreation and, therefore, they
were impermissible sentencing factors, he fails to cite any authority to show that a sentencing
court may only consider illegal conduct at the time of sentencing. To the contrary, sentencing
courts consider many factors, such as work history and the victim’s age, at the time of sentencing
that do not by themselves constitute illegal conduct. In apparent support of his argument,
petitioner cites United States v. Tucker, 404 U.S. 443 (1972), in his discussion of this issue;
however, that case does not stand for the proposition that a sentencing court may only consider
illegal conduct at the time of sentencing. In Tucker, the sentencing court erroneously considered
two prior convictions that had been unconstitutionally imposed and, thus, reversed by a higher
court. The facts underlying the Tucker decision are wholly distinguishable from the case at bar.
Here, the circuit court did not enhance its sentence based on prior convictions that were invalid.
Hence, we find petitioner’s reliance on Tucker to be misplaced.

        Moreover, petitioner’s nonmarital relationships and children were referenced in several
reports and the testimony of several witnesses, including petitioner’s own expert, without
objection. It is the rare case where we will find error in the circuit court’s consideration of
properly admitted evidence without an objection to its admission. We have often explained that
the requirement for a party to raise or waive an objection is designed “to prevent a party from
obtaining an unfair advantage by failing to give the trial court an opportunity to rule on the
objection and thereby correct potential error.” Wimer v. Hinkle, 180 W.Va. 660, 663, 379 S.E.2d
383, 386 (1989). With the exception of objections to the ages of his sexual partners and
conclusions drawn from those ages in the PSI, which were addressed before the circuit court, at
no time during petitioner’s case did he object to the admission of evidence of his sexual history
or the circumstances of his children’s conception and birth.

        Further, petitioner’s claim ignores his own argument that he should have been granted
alternative sentencing because his children needed their father. In that way, petitioner directly
asked the circuit court to consider his children and their circumstances as factors in its sentencing
decision. Where petitioner sought the circuit court’s consideration of his children at sentencing,

       6
        Petitioner cites the circuit court’s attempts in the underlying proceedings to clarify that
the two women with whom petitioner had children were not the victims of any criminal conduct.
                                                     5


he cannot now complain of error in the circuit court’s decision to do so. See State v. Crabtree,
198 W.Va. 620, 627 482 S.E.2d 605, 612 (1996) (stating that “[h]aving induced an error, a party
in a normal case may not at a later stage of the trial use the error to set aside its immediate and
adverse consequences”). Consequently, we find that the circuit court’s sentencing order was not
based on any impermissible factor, and, therefore, we will not review the same.7

        Next, petitioner argues that the circuit court erred in relying on allegedly inaccurate
information at sentencing. A defendant has a due process right to be sentenced on the basis of
accurate information. Fox v. State, 176 W.Va. 677, 682, 347 S.E.2d 197, 202 (1986). In this case,
petitioner claims that the circuit court considered inaccurate information in three forms: (1)
“misapprehensions . . . concerning pertinent facts of the [p]etitioner’s conduct[;]” (2) inaccurate
ages for the two women with whom petitioner had children, as relayed in the first PSI; and (3)
inaccurate information provided in the testimony of the victim’s father. Following our review of
these arguments and the record on appeal, we find that the circuit court did not rely upon false
information in sentencing petitioner such that a due process violation occurred.

       As to the first form of allegedly false information, it is unclear from petitioner’s argument
what information was allegedly misapprehended by the circuit court concerning petitioner’s
conduct. Instead of detailing any such information in his argument to this Court, petitioner
attempts to cite to a former section of his brief and “incorporate[] [it] into this section by
reference.” However, the former section he attempts to incorporate does not detail any apparent
“misapprehensions” by the circuit court. Given petitioner’s failure to set forth a factual basis for
his argument, we find no merit to his claim that the circuit court misapprehended petitioner’s
conduct at sentencing.

        As to the second form of allegedly false information, the record is abundantly clear that
the circuit court went to great lengths to give petitioner an opportunity to voice his corrections
about the ages of his sexual partners as reflected in the first PSI. Petitioner admits that “[t]his
inaccuracy was actually corrected” by the probation officer in an updated PSI. Although, while
the probation officer corrected the women’s ages in the updated PSI, he still concluded that
petitioner demonstrated a pattern of selecting underage females as sexual partners. However,
despite acknowledging that the PSI was updated, petitioner claims that the circuit court “spent
much of the final sentencing hearing operating as though that discredited information was
correct.” We disagree. The circuit court did not state the women’s ages in its sentencing
pronouncement nor in its subsequent sentencing order. The only reference the circuit court made

       7
         We further note out that even assuming the circuit court’s consideration of petitioner’s
sexual history and “illegitimate” children were impermissible, it would be harmless error. See
Syl. Pt. 13, State v. Bradshaw, 193 W.Va. 519, 457 S.E.2d 456 (1995) (holding that “[i]n the
realm of a nonconstitutional error, the appropriate test for harmlessness is whether we can say
with fair assurance, after stripping the erroneous evidence from the whole, that the remaining
evidence independently was sufficient to support the verdict and the judgment was not
substantially swayed by the error”). There was substantial evidence presented below separate and
apart from petitioner’s sexual history and children that supports the circuit court’s sentencing
decision. Therefore, assuming the circuit court’s consideration of that evidence were
impermissible, we would find no reversible error.
                                                     6


to the women’s ages at the final sentencing hearing was in asking petitioner’s expert if he had
reviewed the probation officer’s conclusion about petitioner’s pattern of selecting “underage”
women as sexual partners. The circuit court then heard the expert’s answer and petitioner’s
counsel’s response on the issue and stated “[a]ll right.” It is undisputed that both women were, in
fact, under the age of eighteen when they first engaged in sexual relations with petitioner,
notwithstanding his own age. Following our review of this claim, we find no inaccurate
information before the circuit court as it relates to the ages of petitioner’s prior sexual partners.

         As to the final form of allegedly false information, petitioner claims that the victim’s
father falsely testified about how petitioner and the victim met and about petitioner “stalking” or
“cyberstalking” the victim. However, petitioner concedes that the victim’s father was permitted
to testify at the sentencing hearing, and he does not dispute that the circuit court permitted him to
submit rebuttal evidence after the victim’s father testified to correct any portion of that testimony
with which he disagreed. Notably, petitioner does not cite any portion of the circuit court’s
sentencing pronouncement or sentencing order that relied upon information he claims was false
in the testimony of the victim’s father. The reportedly false information in the victim’s father’s
testimony was properly contested and apparently disregarded by the circuit court. Consequently,
the record does not support the conclusion that the circuit court sentenced petitioner based on the
false information in the victim’s father’s testimony.

        Petitioner’s third argument on appeal is that the circuit court erred in denying his motion
to be complete his sentence in a youthful offender program. We have held as follows:

               Just as a trial court’s decision to grant or deny probation is subject to the
       discretion of the sentencing tribunal, so too is the decision whether to sentence an
       individual pursuant to the Youthful Offenders Act. The determinative language of
       West Virginia Code § 25-4-6 is stated indisputably in discretionary terms: “[T]he
       judge of any court . . . may suspend the imposition of sentence . . . and commit
       the young adult to the custody of the West Virginia commissioner of corrections
       to be assigned to a center.” Id. (emphasis supplied). Since the dispositive statutory
       term is “may,” there can be no question that the decision whether to invoke the
       provisions of the Youthful Offenders Act is within the sole discretion of the
       sentencing judge. See State v. Allen, 208 W.Va. 144, [157], 539 S.E.2d 87, [100]
       (1999) (recognizing that “[c]lassification of an individual as a youthful offender
       rests within the sound discretion of the circuit court”); accord State v. Richards,
       206 W.Va. 573, 575, 526 S.E.2d 539, 541 (1999) (stating that Youthful Offenders
       Act “grants discretionary authority to the circuit courts to suspend imposition of
       sentence, and place a qualifying defendant in a program of rehabilitation at a
       youthful-offender center”) (citation omitted).


State v. Shaw, 208 W.Va. 426, 430, 541 S.E.2d 21, 25 (2000) (emphasis in original). As
explained above, “‘[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). Upon review of the record on appeal, we find that the circuit

                                                     7


court sentenced petitioner within the statutory limits and that the sentence was not based on any
impermissible factor. The circuit court was clearly within its discretion to decline to sentence
petitioner to a youthful offender program. Therefore, we find no merit to petitioner’s third
assignment of error.

        Last, petitioner argues that cumulative error in the proceedings below violated his rights
to due process of law. See Syl. Pt. 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972)
(holding that “[w]here the record of a criminal trial shows that the cumulative effect of numerous
errors committed during the trial prevented the defendant from receiving a fair trial, his
conviction should be set aside, even though any one of such errors standing alone would be
harmless error.”). In light of our rulings on petitioner’s first three grounds for relief, petitioner’s
final assignment of error must fail. We have found no error in the record before us. As such, we
reject petitioner’s argument under the cumulative error doctrine.

       For the foregoing reasons, the circuit court’s August 10, 2015, order is hereby affirmed.


                                                                                            Affirmed.

ISSUED: September 19, 2016

CONCURRED IN BY:

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




                                                      8


