                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia, Plaintiff Below,                                               FILED
Respondent                                                                          August 31, 2015
                                                                                  RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
vs) No. 14-1200 (Putnam County 08-F-74)                                             OF WEST VIRGINIA


Roger G., Defendant Below,
Petitioner

                               MEMORANDUM DECISION
        Petitioner Roger G., by counsel Shawn D. Bayliss and Duane C. Rosenlieb Jr., appeals
the Circuit Court of Putnam County’s August 20, 2014, order sentencing him to ten years of
incarceration following revocation of his supervised release.1 The State, by counsel Jonathan E.
Porter, filed a response. On appeal, petitioner alleges that the circuit court’s sentence violates his
constitutional protections against double jeopardy and cruel and unusual sentences, and that the
circuit court improperly imposed the sentence solely because of petitioner’s inability to comply
financially with the terms of his supervised release.

        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 2008, petitioner was charged with several counts of sexual assault involving two
victims, a six-year-old boy and a nineteen-month-old girl. Petitioner thereafter pled guilty to one
count of first-degree sexual abuse, and the State agreed to dismiss the remaining counts. In 2009,
the circuit court sentenced petitioner to a term of incarceration of one to five years and also
imposed a fifteen-year term of supervised release. One of the conditions of petitioner’s
supervised release was that he complete a sex offender treatment course upon release. After
serving two years of incarceration, petitioner was discharged and placed on supervised release in
February of 2010.

        In September of 2010, the State filed its first petition to revoke petitioner’s supervised
release upon allegations that petitioner possessed alcohol and engaged in contact with minor
children on at least two occasions. At that time, the circuit court did not revoke petitioner’s

       1
         In keeping with this Court’s policy of protecting the identity of minors, we will refer to
petitioner by his last initial throughout this memorandum decision. Moreover, the Court notes
that by order entered on September 24, 2014, the circuit court extended the time period for
petitioner to appeal its August 20, 2014, order revoking his supervised release.
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supervised release and instead modified the terms to include GPS surveillance. Over the next
four years, the State filed several more petitions to revoke petitioner’s supervised release for
violations, including associating with disreputable persons, failing to register as a sex offender,
possessing alcohol, obstructing an officer, being dishonest with his parole officer, and failing to
attend sex offender counseling courses. In 2012, the circuit court sentenced petitioner to three
years of incarceration for repeated failures to comply with the conditions of his supervised
release. In revoking petitioner’s supervised release at that time, the circuit court noted that
petitioner was in danger of offending again and that incarceration was necessary to prevent such
actions. Moreover, the circuit court ordered that petitioner’s term of supervised release be
extended for a period of ten years. After his release in 2014, petitioner again violated the terms
of his supervised release by possessing alcohol and failing to attend the required counseling
classes. The circuit court then sentenced petitioner to ten years of incarceration for the most
recent violations of the terms of his supervised release. It is from the order revoking his
supervised release that petitioner appeals.

        We have previously held that “‘[t]he 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 the circuit court imposing a ten year term of incarceration upon
petitioner’s violation of the terms of his supervised release.

       To begin, petitioner’s arguments that his sentence violates constitutional protections
against double jeopardy and constitutes cruel and unusual punishment have no merit. In
discussing these issues, this Court has stated that

               [t]he imposition of the legislatively mandated additional punishment of a
       period of supervised release as an inherent part of the sentencing scheme for
       certain offenses enumerated in West Virginia Code § 62–12–26 (2009) does not
       on its face violate the double jeopardy provisions contained in either the United
       States Constitution or the West Virginia Constitution.

Id. at 411, 710 S.E.2d at 102, Syl. Pt. 11. Moreover, we have stated that “West Virginia Code §
62-12-26 (2009) is not facially unconstitutional on cruel and unusual punishment grounds in
contravention of the Eighth Amendment to the United States Constitution or Article III, § 5 of
the West Virginia Constitution.” Id. at 410, 710 S.E.2d at 101, Syl. Pt. 6. And in specifically
addressing sentences of incarceration imposed following violations of the conditions of
supervised release, we have stated that

              West Virginia Code § 62–12–26(g)(3) (2011), which provides for
       additional sanctions, including incarceration, upon revocation of a criminal
       defendant’s period of supervised release, does not violate the prohibition against
       double jeopardy found in the Fifth Amendment of the United States Constitution
       and Article III, § 5 of the Constitution of West Virginia.




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Syl. Pt. 7, State v. Hargus, 232 W.Va. 735, 753 S.E.2d 893 (2013). As is clear from our prior
holdings, sentences imposed following revocation of supervised release violate neither the
constitutional prohibitions against double jeopardy nor the constitutional prohibitions against
cruel and unusual punishment.

        Moreover, to the extent that petitioner argues that his sentence is cruel and unusual
because it is disproportionate to the crime, 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).
Petitioner was originally convicted of first-degree sexual abuse pursuant to West Virginia Code §
61-8B-7. Accordingly, pursuant to West Virginia Code § 62-12-26(a), the circuit court was
permitted to impose a term of supervised release of up to fifty years for such a conviction.
Moreover, upon a revocation of supervised release, West Virginia Code § 62-12-26(g)(3) allows
a circuit court to “require the defendant to serve in prison all or part of the term of supervised
release . . . .” Here, the circuit court properly imposed a fifteen-year term of supervised release
when petitioner was sentenced for the underlying crime of first-degree sexual abuse, and
permissibly increased that term of supervised release by ten years when petitioner’s supervised
release was revoked in 2012 for a total term of supervised release of twenty-five years.
Thereafter, upon petitioner’s continued violation of the terms of his supervised release, the
circuit court properly imposed a ten-year term of incarceration that was well within the
permissible length of sentences for such violations pursuant to West Virginia Code § 62-12­
26(a). As such, it is clear that petitioner was sentenced within the applicable statutory guidelines
and, therefore, his sentence is not reviewable on appeal.

        Finally, petitioner argues that the circuit court improperly imposed his ten-year sentence
because of his alleged inability to pay for the required sex offender counseling classes.
However, the Court finds no merit to this argument. To begin, petitioner cites our prior holding
in Fox v. State, 176 W.Va. 677, 347 S.E.2d 197 (1986), to argue that the circuit court erred in
failing to make an inquiry into his ability to pay for the sex offender counseling classes at issue.
However, Fox concerned separate issues relating to probationers and their ability to pay court-
ordered costs, fees, and restitution, and, thus, is not guiding for our analysis in the present matter.
Moreover, the record is clear that the circuit court made abundant inquiry into petitioner’s
financial ability to comply with the terms of his supervised release and ultimately based its
decision to revoke petitioner’s supervised release upon his repeated, willful disregard for those
terms, rather than his financial situation.

        According to the updated report submitted by petitioner’s probation officer in advance of
the August of 2014 hearing on revocation of petitioner’s supervised release, it was indicated that
since as early as 2009, petitioner expressed the opinion that he did not need to attend the required
treatment as prescribed by the terms of his supervised release. Further, the circuit court
specifically found that petitioner held this belief at the time of the August of 2014 hearing as
evidenced by his continued refusal to comply with the ordered sex offender counseling classes.
In revoking petitioner’s supervised release, the circuit court also considered the fact that
petitioner’s probation officers worked to help petitioner obtain employment by teaching him
about proper attire, etiquette, and appearance, yet petitioner remained unemployed. The circuit

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court also noted that the doctor treating petitioner in his sex offender counseling had “agreed to
waive his fees a long time ago, so cost wasn’t really that much of an issue since then.” Based
upon this evidence, it is clear that the circuit court conducted an appropriate inquiry into
petitioner’s financial ability to comply with the terms of his supervised release and ultimately
revoked the supervised release because of petitioner’s refusal to comply, not because of his
financial situation. As such, we find no error.

        For the foregoing reasons, the circuit court’s August 20, 2014, order revoking
petitioner’s supervised release is hereby affirmed.


                                                                                        Affirmed.

ISSUED: August 31, 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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