                                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. 12-0849 (Jackson County 11-F-104)                                  SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA

Edward C. Frazier,
Defendant Below, Petitioner


                                 MEMORANDUM DECISION

         Petitioner’s appeal, by counsel Kevin B. Postalwait, arises from the Circuit Court of
Jackson County, wherein he was sentenced to a term of incarceration of one to five years
following his guilty plea to one count of possession with intent to deliver a Schedule III
controlled substance by order entered June 22, 2012. The State, by counsel Scott E. Johnson, has
filed its response.

       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.

         During the June 2011 term of court, petitioner was indicted by a Jackson County Grand
Jury on seven counts of possession with intent to deliver a Schedule II controlled substance, one
count of conspiracy to commit the offense of possession with intent to deliver a Schedule II
controlled substance, and one count of possession with intent to deliver a Schedule III controlled
substance. These charges stemmed from an incident in which petitioner was arrested with over
900 opiate tablets in his possession, which law enforcement estimated to be worth over $21,000.
In March of 2012, petitioner entered into a plea agreement whereby he would plead guilty to
possession with intent to deliver a Schedule III controlled substance. On June 18, 2012, the circuit
court held a sentencing hearing, during which petitioner was sentenced to a term of incarceration
of one to five years, and also ordered to pay a fine of $10,000. At the time of sentencing,
petitioner had been on home incarceration as a condition of bail for a total of 538 days with no
violations. The circuit court denied petitioner’s request to serve his sentence on home
incarceration and also denied him time-served credit for the 538 days on home incarceration. The
circuit court specifically stated that it was denying the credit “[b]ased on the seriousness of the
offense and all other circumstances of the case . . . .”



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        On appeal, petitioner alleges that the circuit court erred in denying him time-served credit
for the 538 days he spent on home incarceration and in sentencing him to a period of incarceration
of one to five years. In support, petitioner argues that his co-defendant, who was indicted on
identical charges, was given credit for the time he served on home incarceration and that it was an
abuse of discretion to deny him the same. Petitioner also alleges that he has an extremely limited
criminal history, having only one prior arrest for petit theft. He also asserts his status as a disabled
Navy veteran who served in the Vietnam War and his lengthy employment history as factors in
favor of granting credit for his time served on home incarceration. Petitioner asks the Court to
apply proportionality principles to this issue by comparing the sentence he actually received to the
sentence that he would have been granted with time credit. According to petitioner, had the circuit
court granted him credit for his time served, he would have been eligible for parole immediately
upon his sentencing.

        “‘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). Upon our review, the Court finds no error in regard to
petitioner’s assignments of error. “‘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. 3, State v. Georgius,
225 W.Va. 716, 696 S.E.2d 18 (2010). Petitioner was convicted of possession with intent to
distribute a Schedule III controlled substance under West Virginia Code § 60A-4-401(a)(ii),
which provides for both a term of incarceration of one to five years and a fine of up to $15,000. It
is uncontroverted that petitioner was sentenced within these statutory limits, and his sentence is
therefore not subject to review.

        As to petitioner’s argument that it was error to deny him credit for the time he served on
home incarceration as a condition of bail, the Court finds no error. West Virginia Code § 62-11B­
11(b) states that “[u]pon conviction of a person, the circuit court . . . may, in its discretion, grant
credit for time spent on home incarceration as a condition of bail toward any sentence imposed, if
the person is found to have complied with the terms of bail.” Obviously, this statute provides
circuit courts discretion in granting credit for time served and does not make such an award
mandatory. Further, we have held that

       “[d]isparate sentences for codefendants are not per se unconstitutional. Courts
       consider many factors such as each codefendant’s respective involvement in the
       criminal transaction (including who was the prime mover), prior records,
       rehabilitative potential (including post-arrest conduct, age and maturity), and lack
       of remorse.” Syllabus Point 2, in part, State v. Buck, 173 W.Va. 243, 314 S.E.2d
       406 (1984).

Syl. Pt. 5, State v. Jones, 216 W.Va. 666, 610 S.E.2d 1 (2004). In the instant matter, the circuit
court considered multiple factors differentiating petitioner from his co-defendant. Most
importantly, the circuit court expressed disbelief as to petitioner’s account of how the crime in
question occurred, noting that he “takes absolutely no responsibility for his conduct.” According

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to the circuit court, petitioner stated that he came to be in possession of the large quantity of
controlled substances when he picked up the wrong bag in Florida. Conversely, petitioner’s co­
defendant gave a statement to law enforcement in which he admitted that he and petitioner
conspired to sell prescription pills and stated that he would take “whatever punishment” was
given. Based upon these facts, the Court finds no error in the circuit court denying petitioner
credit for time served while on home incarceration as a condition of bail.

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



                                                                                       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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