                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS


State of West Virginia,                                                              FILED
Plaintiff Below, Respondent                                                         March 28, 2014
                                                                                RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
vs) No. 13-0608 (Kanawha County 12-F-600)                                         OF WEST VIRGINIA



Billy T.,

Defendant Below, Petitioner



                                MEMORANDUM DECISION
       Petitioner Billy T., by counsel Herbert L. Hively, appeals the order of the Circuit Court of
Kanawha County, entered May 2, 2013, denying his motion to reconsider the sentence imposed
by the court on February 21, 2013.1 Respondent State of West Virginia appears by counsel
Christopher S. Dodrill.

        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.

        Petitioner entered a plea of guilty by way of information on September 13, 2012, to two
counts of sexual assault in the first degree and one count of sexual assault in the third degree
based on incidents involving his daughters.2 At the plea hearing, the State offered the following
factual basis:

               The victim in Count 1 . . . who is now over the age of—well, she is now
       18, this count stems from an incident which occurred when she was 11 and in the
       sixth grade. [Petitioner] was taking [her] to school. He stopped somewhere in
       Blue Creek, West Virginia, in Kanawha County, where he inserted his penis into
       her vagina. He stopped the assault when she screamed, but told her she was weak
       because she couldn’t handle it.

       1
          Because of the sensitive nature of the facts alleged in this case, we use the initials of the
affected parties. See State v. Edward Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127
n.1 (1990) (“Consistent with our practice in cases involving sensitive matters, we use the victim's
initials. Since, in this case, the victim . . . [is] related to the appellant, we have referred to the
appellant by his last name initial.” (citations omitted)).
       2
           Petitioner later moved, pro se, to withdraw this plea, but then withdrew that motion.
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               After that assault is Count 2, and that is against [another daughter], who is
       now nine years old. Within the last year, [petitioner] inserted his penis inside of
       her, but not all the way because it hurts her. The child says he puts the end in, but
       not the rest of it. That occurred in their home in Kanawha County.

              Count 3, the victim is [a third daughter], who is now age 16. This count
       stems from when [the victim] was 13 years old. [Petitioner] penetrated her vagina
       with his penis at their home in Kanawha County.

Pursuant to petitioner’s plea agreement, the State recommended that the sentences for each count
run concurrently. At a later hearing, the State represented that had the case proceeded pursuant to
an indictment, the indictment likely would have included forty to sixty counts.3

       The circuit court conducted a sentencing hearing on February 21, 2013. At that hearing,
the court granted petitioner’s request for a psychological evaluation and instructed petitioner’s
counsel to file an appropriate motion upon receipt of the results of the evaluation. The court
entered its sentencing order on February 21, 2013, confirming the sentence of 25 to 100 years of
incarceration on each Counts 1 and 2, and one to five years of incarceration on Count 3, with the
sentences to run consecutively. Upon receipt of the psychological report, which petitioner’s
counsel stated at the hearing “wasn’t a good report,” petitioner appeared before the court on his
motion to reconsider the sentence.4 The circuit court denied that motion by order entered May 2,
2013. This appeal followed.

              “‘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.’ Syllabus Point 1, State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).”

Syl. Pt. 1, State v. Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010). “‘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. 4, State v. Manley, 212 W.Va. 509, 575 S.E.2d 119 (2002).
        Petitioner has not asserted that the circuit court made unsupported factual determinations
or that the sentence is based on some impermissible factor. Rather, petitioner argues that his
sentence violates the proportionality principle in the West Virginia Constitution. In State v.
Cooper, 172 W.Va. 266, 304 S.E.2d 851 (1983), this Court recognized two tests to determine if a
sentence violates the proportionality principle set forth in Article III, Section 5 of the West

       3
         The criminal investigation report and the presentence investigation report confirm that
the victims described years of ongoing sexual abuse.
       4
       We note that the report of the psychological examination was not included in the
appendix record on appeal.
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Virginia Constitution. The first is whether the sentence shocks the conscience, and if not, then
the Court should proceed to the second test found in Wanstreet v. Bordenkircher, 166 W.Va.
523, 276 S.E.2d 205 (1981), which considers the nature of the offense, the legislative purpose
behind the punishment, and a comparison with other offenses within the same jurisdiction. This
Court has noted 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).

        Petitioner states that his sentence violates these standards, because he did not use a
weapon in the commission of his crimes, had no prior felony record, was young—forty years of
age—when he committed the crimes, and because his crimes were not directed to the general
public but were “situational and perpetrated on family members.” Indeed, petitioner’s crimes
were inflicted on family members: young, vulnerable children who were as young as nine years
old when one of the few people they should have been able to trust completely subjected them to
unspeakable harm. To paraphrase a prior conclusion of this Court, “Without hesitation, this
Court concludes that the act of using [one’s own] child to gratify one’s perverse sexual appetite
‘shocks the conscience.’ Therefore, we conclude that the trial court’s sentence for such a crime
does not shock the conscience.” State v. Goff, 203 W.Va. 516, 523-24, 509 S.E.2d 557, 564-65
(1998).

        Proceeding to the second leg of our analysis, we are required to consider the nature of the
offense, the legislative purpose behind the punishment, and a comparison with punishments
outside of our jurisdiction as well as a comparison of punishments for offenses within. Petitioner
concedes that his crimes were “heinous” and we are therefore disposed of the first consideration.
As to the second, petitioner acknowledges that the legislature has deemed sexual assault and
abuse as crimes against the person, and asks only that we consider the mitigating factors of his
acting without a weapon and having accepted responsibility.5 We are not persuaded that these
factors affect the legislative purpose behind West Virginia Code § 61-8B-3(c): to bring about the
imprisonment of an offender in a state correctional facility for not less than twenty-five nor more
than one hundred years.6 Finally, we agree with the State that petitioner has not shown that the
penalties for similar crimes in other states, or the penalties for other crimes in our own State, are
inherently disproportionate to petitioner’s sentence.

       In consideration of all of the above, we find no error in the circuit court's decision to deny
reconsideration of petitioner's sentence.

       For the foregoing reasons, we affirm.

       5
         We do not readily agree that petitioner accepted responsibility for the harm that he
inflicted on his victims, inasmuch as the presentence investigation report reflects that he was
uncooperative and manipulative after the entry of his plea.
       6
        Petitioner does not address his sentence of one to five years of incarceration for sexual
abuse in this portion of his argument.
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                                      Affirmed.

ISSUED: March 28, 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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