                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia, Plaintiff Below,                                          FILED
Respondent                                                                     June 15, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
vs) No. 14-0860 (Berkeley County 13-F-79)                                     OF WEST VIRGINIA


Shawn Ganey, Defendant Below,
Petitioner


                              MEMORANDUM DECISION
       Petitioner Shawn Ganey, by counsel Kevin D. Mills and Shawn R. McDermott, appeals
the Circuit Court of Berkeley County’s July 30, 2014, order sentencing him to a term of
incarceration of one to five years for his conviction of conspiracy to commit malicious assault.
The State, by counsel Christopher C. Quasebarth, filed a response. Petitioner filed a reply. On
appeal, petitioner alleges that the circuit court violated West Virginia Code § 61-11A-2(b) and
his due process rights in the manner in which it allowed the victim to make an impact statement
below.

        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 February of 2013, petitioner was indicted on one count of malicious assault and one
count of conspiracy to commit malicious assault. These charges stemmed from an incident in
which petitioner and at least two others violently attacked Harold Messick Jr. According to
petitioner, he accompanied Joel Nies, and Mr. Nies’ girlfriend, Stella Huckabay, to Mr.
Messick’s home on the night in question. Petitioner also alleges that a third individual
accompanied them to Mr. Messick’s home, though he is unsure of that individual’s identity. Mr.
Messick (“the victim”) is Ms. Nies’ mother’s boyfriend. According to petitioner, once they
reached the home, Mr. Nies and Ms. Huckabay produced knives to use in the attack, wherein the
victim was stabbed and severely beaten. Petitioner claims that, following the attack, Mr. Nies
gave the knives to petitioner and fled the state, while petitioner and Ms. Huckabay remained at
the scene. Once police arrived, petitioner accompanied officers to the police station and gave a
full statement. Petitioner provided information to police and the United States Marshals Service
about Mr. Nies, who was later apprehended in Iowa and extradited to West Virginia. Though a
preliminary hearing was never held in petitioner’s criminal proceeding, the victim did testify at a
preliminary hearing in a co-defendant’s criminal proceeding. During his testimony, Mr. Messick
stated that petitioner participated in his attack and that he punched petitioner in the eye.

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        In June of 2014, the circuit court held a plea and sentencing hearing, during which
petitioner pled guilty to one count of conspiracy to commit malicious assault. In exchange, the
State dismissed the remaining count of malicious assault and agreed to stand silent as to
sentencing. During the plea hearing, petitioner admitted he participated in the attack insomuch as
he served as a lookout while the others attacked the victim, but he denied physically participating
in the attack. Petitioner further denied the victim’s account of giving him a black eye and
submitted evidence contained in the State’s discovery of the forensic analysis of his cell phone
that showed he texted pictures of his black eye on the day prior to the attack in question.
According to petitioner, he received the black eye in an unrelated incident at his home prior to
the crime at issue. Also at the hearing, Mr. Messick gave a victim impact statement. Ultimately,
the circuit court sentenced petitioner to a term of incarceration of one to five years for his
conviction of conspiracy to commit malicious assault. It is from the sentencing order that
petitioner appeals.

        We have previously 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. 3, State v.
Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010). In the instant matter, it is clear that petitioner
was sentenced within the applicable statutory guidelines. Pursuant to West Virginia Code § 61­
10-31, a person guilty of conspiracy is subject to a term of incarceration of one to five years. It is
uncontroverted that petitioner was sentenced within the terms of this statute. As such,
petitioner’s sentence is not reviewable on appeal, unless the sentence was based on an
impermissible factor.

        Petitioner alleges that the circuit court relied on impermissible factors in reaching his
sentence. Specifically, petitioner alleges that through the impact statement, the victim was
impermissibly allowed to present allegations related to charges that were dismissed, factually
inaccurate allegations, and irrelevant disparaging comments toward petitioner’s counsel.
Petitioner further alleges that the victim’s mannerisms and demeanor were overly emotional and
inappropriate. However, upon our review, we do not find that the circuit court erred in the
manner in which it allowed the victim to give his impact statement or that the circuit court relied
on any impermissible factors in reaching sentencing.

        According to West Virginia Code § 61-11A-2(b), a circuit court is required to allow a
victim impact statement prior to sentencing in a case such as this, where the defendant has
entered a guilty plea to a felony. Moreover, this statute requires that the statement “must relate
solely to the facts of the case and the extent of injuries, financial losses and loss of earnings
directly resulting from the crime for which the defendant is being sentenced.” While petitioner
alleges that the victim inappropriately addressed the actual malicious assault, a charge that was
dismissed, we find no error in the regard. Clearly the actual attack Mr. Messick suffered is
related to the crime for which petitioner was sentenced, regardless of the State’s dismissal of the
charge of malicious assault. Moreover, it is unclear if the facts the victim discussed were
inaccurate, as petitioner alleges. According to petitioner, he did not participate in the attack,
while Mr. Messick stated that petitioner did attack him and that he punched petitioner in the eye
during the attack. While it may be true that petitioner suffered a black eye a day prior to the

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attack, this does not make Mr. Messick’s allegation that he punched petitioner untrue. Further,
the victim’s version of the events was substantially similar to the State’s version of the events
contained in petitioner’s pre-sentence investigation report, to which petitioner did not object. As
such, the Court finds that there is no evidence the circuit court relied on any impermissible
factors in imposing sentence.

       For the foregoing reasons, the circuit court’s July 30, 2014, sentencing order is hereby
affirmed.


                                                                                        Affirmed.

ISSUED: June 15, 2015

CONCURRED IN BY:

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




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