                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                         FILED
                                                                                    May 24, 2013
                                                                               RORY L. PERRY II, CLERK
vs) No. 12-0834 (Wood County 09-F-173)                                       SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

Sanford Kidd,

Defendant Below, Petitioner


                                 MEMORANDUM DECISION

       Petitioner Sanford Kidd, by counsel William Summers, appeals the Circuit Court of
Wood County’s order entered on June 5, 2012, which denied petitioner’s motion for
reconsideration of his sentence. Respondent State of West Virginia, by counsel Andrew
Mendelson, has filed its response in support of the circuit court’s decision.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        On September 18, 2009, a Wood County Grand Jury indicted petitioner on six counts of
second degree sexual assault and three counts of malicious assault. Following discovery,
petitioner pled guilty to one count of the lesser included offense of unlawful assault and one
count of the lesser included offense of first degree sexual abuse. Pursuant to the plea agreement,
the remaining charges were dismissed. The circuit court sentenced petitioner to a term of
incarceration of one to five years, with credit for 227 days for unlawful assault and a term of
incarceration of one to five years, with no credit for time served for first degree sexual abuse,
said sentences to run consecutively. Additionally, petitioner was ordered to undergo HIV tests,
DNA analysis, register as a sex offender for the duration of his life, and ten years of supervised
release. On June 5, 2012, the circuit court denied petitioner’s motion for reconsideration of his
sentence.

        On appeal, petitioner argues that his Rule 35(b) motion should have been granted because
he has little to no criminal history, has essentially been a model citizen all his life, was sixty-two
years old at the time of his sentencing, and the sentence is shocking and disproportionate to the
crime. The State argues that petitioner’s sentence was within statutory limits, was not based on
any impermissible factors, and he received a significant reduction in his potential exposure
through his plea agreement.




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       This Court has adopted the following standard of review:

       In reviewing the findings of fact and conclusions of law of a circuit court
       concerning an order on a motion made under Rule 35 of the West Virginia Rules
       of Criminal Procedure, we apply a three-pronged standard of review. We review
       the decision on the Rule 35 motion under an abuse of discretion standard; the
       underlying facts are reviewed under a clearly erroneous standard; and questions of
       law and interpretations of statutes and rules are subject to a de novo review.

Syl. Pt. 1, State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996). Additionally, this Court has
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). However, this Court has held as follows:

       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). Upon review of the record,
the circuit court sentenced petitioner within the statutory limit for first degree sexual abuse
pursuant to West Virginia Code § 61-8B-7 and unlawful assault pursuant to West Virginia Code
§ 61-2-9. Further, the sentences were not based on an impermissible factor, and are not shocking
or disproportionate. Therefore, under the facts of this case, petitioner’s sentence is not found to
be excessive, and we find no error in the circuit court’s order.

       For the foregoing reasons, we affirm the circuit court’s decision.


                                                                                              Affirmed.

ISSUED: May 24, 2013

CONCURRED IN BY:

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




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