                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia,                                                           FILED
Plaintiff Below, Respondent                                                  February 27, 2015
                                                                             RORY L. PERRY II, CLERK
vs) No. 14-0444 (Pocahontas County 13-F-14)                                SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA

Kristopher Dale Nutter,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
       Petitioner and defendant below, Kristopher Dale Nutter, by counsel Paul S. Detch,
appeals the March 18, 2014, order of the Circuit Court of Pocahontas County that sentenced him
to one to five years of incarceration for each of two counts of delivering a controlled substance
following a jury verdict. The State of West Virginia, by counsel Derek A. Knopp, filed a
response in support of the circuit court’s order.

        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.

        On April 18, 2013, petitioner was indicted on five counts of delivery of a controlled
substance (marijuana), as follows: three counts relating to delivery to a confidential informant;
one count of delivery to an undercover officer; and one count of delivery to one Teresa Teter.
Petitioner represents that he offered to plead guilty to several misdemeanors or to one felony.
The State refused petitioner’s offer, advising him that it was willing to allow petitioner to plead
guilty to all of the charges contained in the indictment in exchange for the State remaining silent
at sentencing. Petitioner declined the State’s counteroffer.

        A jury trial was conducted on August 1, 2013. Petitioner was convicted of two felony
      1
counts --one relating to delivering marijuana to an undercover officer and one relating to
delivering marijuana to Teresa Teter. Petitioner was sentenced to one to five years of
incarceration for each count. By order entered March 18, 2014, the circuit court ordered that the
sentences be served concurrently; that the sentences be suspended; that petitioner be placed on
probation for five years; and that he pay the costs of the proceedings (amounting to $2,917.85).
The circuit court further ordered that petitioner not be subjected to any monetary fine. This

          1
        Count V of the Indictment, relating to delivery of marijuana to a confidential informant,
was, according to petitioner, “stricken by motion.”
                                                1

appeal followed.

        This Court “‘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. Rebecca F., 233 W.Va. 354, 758 S.E.2d 558 (2014) (quoting Syl. Pt. 1, State v. Lucas,
201 W.Va. 271, 496 S.E.2d 221 (1997)).

       In his first assignment of error, petitioner argues that West Virginia’s system of
designating all crimes as either a felony or misdemeanor violates the state constitutional
provision requiring that “penalties shall be proportional to the character and degree of the
offense.” See W.Va. Const. art. III, § 5. Petitioner contends that the non-violent crimes of which
he was convicted should not be categorized and punished in the same manner as more egregious
offenses, particularly given that, in petitioner’s view, marijuana is no longer considered to be a
dangerous drug. We find petitioner’s argument to be without merit.

        Petitioner was convicted of violating West Virginia Code § 60A-4-401(a), which
prohibits any person from manufacturing, delivering, or possessing with intent to manufacture or
deliver, a controlled substance. A person convicted under this statute may be sentenced to one to
five years in prison. Id. The classification of petitioner’s crimes as felonies is solely within the
province of the legislature. “The power of the Legislature to prescribe the punishment for the
offense is very broad, and must be left to the judgment of that body as to what punishment will
be adequate for the purpose of deterring others from the commission of crime, and for the
reformation of the offender.” State v. Painter, 135 W.Va. 106, 117, 63 S.E.2d 86, 94 (1950). See
State v. Mann, 205 W.Va. 303, 316, 518 S.E.2d 60, 73 (1999) (stating that “‘[t]he legislature has
broad power in prescribing punishments for criminal offenses, limited only by the constitutional
prohibition against cruel and unusual punishments or disproportionate sentences.’ State v.
Glover, 177 W.Va. 650, 355 S.E.2d 631 (1987).”). The Legislature made a policy decision in
classifying petitioner’s crime as a felony, a decision with which this Court will not interfere. See
State ex rel. Blankenship v. Richardson, 196 W.Va. 726, 731, 474 S.E.2d 906, 911 (1996)
(stating that this Court does not “‘sit as a superlegislature, commissioned to pass upon the
political, social, economic or scientific merits of statutes pertaining to proper subjects of
legislation. It is the duty of the legislature to consider facts, establish policy, and embody that
policy in legislation.’ Boyd v. Merritt, 177 W.Va. 472, 474, 354 S.E.2d 106, 108 (1986).”).

        Furthermore, it is undisputed that petitioner was sentenced within the statutory limits for
his crimes. “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.” Syl. Pt. 4, State v. Goodnight,
169 W.Va. 366, 287 S.E.2d 504 (1982). See State ex rel. Hatcher v. McBride, 221 W.Va. 760,
764, 656 S.E.2d 789, 793 (2007) (stating that “[h]istorically, this Court has declined to intervene
in cases where judicially-imposed sentences are within legislatively prescribed limits.”).

       Next, petitioner argues that because county governments are required to bear the costs for
housing misdemeanants while the State bears the costs for housing felons,2 there exists “an

       2
        See W.Va. Code §§ 31-20-10 and 10a; State ex rel. Reg’l. Jail & Corr. Fac. Auth. v.
Cnty. Comm’n. of Cabell Cnty., 222 W.Va. 1, 4, 657 S.E.2d 176, 179 (2007).
                                                 2

impermissible pressure on counties to reduce their costs by charging and accepting pleas only for
felonies.” Petitioner argues that this dual system of financing violates article II, section 17 of the
West Virginia Constitution, which provides, in part, that “justice shall be administered without
sale.” Petitioner surmises that the assistant county prosecuting attorney’s refusal to negotiate a
plea in this case was improperly motivated by the financial incentive related to the fact that the
State, rather than the county, bears the cost of incarcerating felons. Petitioner argues further that
he was ultimately sentenced to “the exact penalty as though he had been convicted of a
misdemeanor” and that the only difference between the “felony charge and if he had been
charged with a misdemeanor is simply the costs to the county.”

        Petitioner’s supposition that there was undue pressure on the assistant county prosecutor
to only accept a plea for the felonies as charged in the indictment is completely unfounded and
unsupported in the record. Moreover, petitioner’s crime—delivery of a controlled substance—
was classified by the Legislature as a felony,3 and petitioner was properly charged and
subsequently convicted of such a crime based upon his illegal activities.4 The State was not
required to negotiate a plea. As we have previously stated, “‘there is no absolute right under
either the West Virginia or the United States Constitution to plea bargain. To this end, we have
noted that a defendant has “no constitutional right to have his case disposed of by way of a plea
bargain [.]”’” State v. Myers, 204 W.Va. 449, 457, 513 S.E.2d 676, 684 (1998) (quoting State ex
rel. Brewer v. Starcher, 195 W.Va. 185, 192, 465 S.E.2d 185, 192 (1995) (internal citation
omitted)).

       In his third assignment of error, petitioner argues that a conviction under West Virginia
Code § 60A-2-204(d), which classifies marijuana as a Schedule I drug, requires the State to
prove that marijuana meets the requirements of a Schedule I drug, as set forth in West Virginia
Code § 60A-2-203. West Virginia Code § 60A-2-203 requires that

       [t]he State Board of Pharmacy shall recommend to the legislature that a substance
       be included in Schedule I if it finds that the substance:

       (1) [h]as high potential for abuse; and
       (2) [h]as	 no accepted medical use in treatment in the United States or lacks
           accepted safety for use in treatment under medical supervision.

       Petitioner argues that the State must prove the foregoing by a preponderance of the
evidence in order to criminalize marijuana or, at the very least, it must prove that the
recommendation is current. Petitioner contends that, during trial, Carrie J. Kirkpatrick, an expert
from the West Virginia State Police Crime Lab, testified that she did not know if marijuana met



       3
         See Mann, 205 W.Va. at 316, 518 S.E.2d at 73; Blankenship, 196 W.Va. at 731, 474
S.E.2d at 911.
       4
          On appeal, petitioner makes no attempt to deny that he engaged in such activities;
rather, he attempts to justify his crimes by stating that he sold marijuana because he needed
money to financially support his children in a poor economy.
                                                  3
the statutory requirements of a Schedule I substance. Petitioner argues that he should be awarded
a new trial in which the State will be required to prove that the requirements of West Virginia
Code § 60A-2-203 have been or can be satisfied.

        The Legislature has designated marijuana to be a Schedule I substance. See W.Va. Code
§ 60A-2-204(d)(19).5 The prohibited act of which petitioner was convicted, delivering a
controlled substance, requires that the State prove that the substance delivered is a classified
Schedule I substance. W.Va. Code § 60A-4-401(a)(ii). The State satisfied its burden of proof in
this regard. It was not required to prove that marijuana should be or is properly classified as
such. See State v. Poling, 207 W.Va. 299, 306, 531 S.E.2d 678, 685 (2000) (holding that
“medical necessity is unavailable as an affirmative defense to a marijuana charge in West
Virginia because the Legislature has designated marijuana as a Schedule I controlled substance
with no exception for medical use.”).

        In his final assignment of error, petitioner argues that he substantially prevailed at trial
and, therefore, should not be required to pay the $2,917.85 in court costs, as ordered by the
circuit court. Petitioner contends that, in light of the State’s refusal to meaningfully negotiate a
plea, he was forced to exercise his constitutional right to a jury trial. He argues that, given that he
was convicted of only two counts (or 40%) of the offenses charged in the indictment and was not
given a sentence any greater than could have been imposed if he had pled guilty to a
misdemeanor, at the very least, he should be required to pay only 40% of the costs. Petitioner’s
argument is not persuasive.

       This Court has “heretofore established that the assessment of costs is not for punitive
purposes. ‘[C]osts are not punishment or part of the penalty for committing a crime.’ State ex rel.
Canterbury v. Paul, 205 W.Va. 665, 670, 520 S.E.2d 662, 667 (1999).” State v. Myers, 216
W.Va. 120, 124-25, 602 S.E.2d 796, 800-01 (2004). Rather, “the costs of prosecution are purely
compensatory . . . .” Id. (quoting 24 C.J.S. Criminal Law § 1738 (1989)). Requiring a convicted
criminal to pay court costs is well settled in West Virginia law. See W.Va. Code §§ 62-5-7, 62-5­
10, and 62-12-9(b)(2). Petitioner fails to cite any legal authority supporting his contention that
the amount of court costs to be paid should be linked to the number of counts in an indictment of
which a defendant is ultimately convicted.

       For the foregoing reasons, we affirm.

                                                                                            Affirmed.




       5
           West Virginia Code § 60A-1-101(q) defines “marijuana” as “all parts of the plant
‘Cannabis sativa L.’, whether growing or not; the seeds thereof; the resin extracted from any part
of the plant; and every compound, manufacture, salt, derivative, mixture or preparation of the
plant, its seeds or resin.”
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ISSUED: February 27, 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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