                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS



State of West Virginia, Plaintiff Below,                                             FILED
Respondent                                                                        January 17, 2014
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs) No. 13-0150 (Harrison County 12-F-167)                                       OF WEST VIRGINIA


Jeffrey B., Defendant Below,
Petitioner


                                 MEMORANDUM DECISION

        Petitioner Jeffrey B., by counsel Keith A. Cox, appeals the Circuit Court of Harrison
County’s January 17, 2013, order sentencing him to the following terms of incarceration: five to
fifteen years for his conviction of one count of incest; ten to twenty-five years for his conviction
of one count of second degree sexual assault; and, one to five years for his conviction of one
count of first degree sexual abuse.1 These sentences followed petitioner’s entry of guilty pleas to
the crimes. The State, by counsel Laura Young, filed a response. On appeal, petitioner alleges that
the circuit court erred in sentencing him to sentences that are excessive and disproportionate to
the crimes.

        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.

        During the September 2012 term of court, a Harrison County Grand Jury indicted
petitioner on eight felony charges, including three counts of incest, three counts of second degree
sexual assault, and two counts of first degree sexual abuse. These charges stemmed from multiple
instances of forced sexual interaction between petitioner and his adult daughter that took place
from July of 2010 through December of 2010. It was alleged that on at least eight occasions,
petitioner forced his daughter to engage in sexual intercourse, oral sex, and masturbation.
Petitioner ultimately accepted a plea agreement and pled guilty to the above-referred charges in

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          The circuit court ordered the sentence for second degree sexual assault to run
consecutively to the sentence for incest, and also ordered the sentence for first degree sexual
abuse to run consecutively to the sentence for incest and concurrently to the sentence for second
degree sexual assault. Additionally, in keeping with the Court’s policy of protecting the identities
of the victims of sexual crimes, petitioner will be referred to by his last initial throughout the
memorandum decision.
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October of 2012. At the time, petitioner admitted that the sexual intercourse with his daughter was
without her consent. Pursuant to the plea agreement, the remaining five felony counts pending
against petitioner were dismissed.

        In January of 2013, the circuit court heard evidence from petitioner regarding possible
treatment and alternative sentencing and thereafter sentenced petitioner to the above-referred
terms of incarceration. Petitioner was additionally ordered to undergo twenty years of supervised
release following imprisonment. It is from the circuit court’s “Judgment And Commitment Order”
that petitioner appeals.

        Petitioner’s sole argument on appeal is that his sentences violate Article III, Section Five
of the West Virginia Constitution because the punishment is not proportionate to the character
and degree of the offenses for which he was convicted. 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). Upon our review, we find that petitioner’s sentence is not appropriate for review.

        Specifically, West Virginia Code §§ 61-8-12, 61-8B-4, and 61-8B-7 set forth the crimes of
incest, second degree sexual assault, and first degree sexual abuse, respectively. A review of
petitioner’s sentences show that he was sentenced within the applicable statutory guidelines for
these crimes. Further, petitioner does not allege that the circuit court based its sentence on any
impermissible factor, nor does the record contain any such evidence. We have further held that

       “[w]hile our constitutional proportionality standards theoretically can apply to any
       criminal sentence, they are basically applicable to those sentences where there is
       either no fixed maximum set by statute or where there is a life recidivist sentence.”
       Syllabus point 4, Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205
       (1981).

Syl. Pt. 3, State v. Booth, 224 W.Va. 307, 685 S.E.2d 701 (2009). The Court notes that the
sentences imposed have fixed maximums set by statute and there was no life recidivist sentence
below. Therefore, the Court finds that petitioner’s sentence is not appropriate for our review and
the same is hereby affirmed.

     For the foregoing reasons, the circuit court’s January 17, 2013, “Judgment And
Commitment Order” is hereby affirmed.


                                                                                         Affirmed.




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ISSUED: January 13, 2014

CONCURRED IN BY:

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




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