                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS



State of West Virginia,                                                                   FILED
Plaintiff Below, Respondent                                                             March 12, 2013
                                                                                    RORY L. PERRY II, CLERK
                                                                                  SUPREME COURT OF APPEALS
vs) No. 12-0271 (Jefferson County 11-F-52)                                            OF WEST VIRGINIA


Joshua Hutzler,

Defendant Below, Petitioner



                                  MEMORANDUM DECISION

        Petitioner’s appeal, by counsel Christopher J. Prezioso, arises from the Circuit Court of
Jefferson County, wherein he was sentenced to a term of incarceration of one to ten years for the
crime of daytime burglary by order entered on January 24, 2012. The State, by counsel Brandon
C.H. Sims, has filed its response, to which petitioner has filed a reply.

       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.

        Following his entry of a guilty plea pursuant to a plea agreement, petitioner was
sentenced in November of 2011 to a term of incarceration of one to ten years for the crime of
daytime burglary. Pursuant to the plea agreement, other charges upon which petitioner was
indicted were dismissed. On appeal, petitioner alleges that the circuit court erred in imposing this
sentence instead of placing petitioner on probation. According to petitioner, his sentence violates
the Eighth Amendment to the United States Constitution and Article III of the West Virginia
Constitution. In support, he argues that he would benefit from alternative sentencing and his
attempts to better himself are being stifled by his incarceration. Petitioner further requests that the
Court reconsider its prior rulings regarding appellate review of sentences in the absence of an
impermissible factor.

       In response, the State argues that circuit courts have discretion to grant or deny probation.
Further, the State argues that the record clearly establishes that the circuit court found the public
good required incarceration. Lastly, the State argues that the circuit court did not rely on
impermissible factors in sentencing petitioner, and that petitioner does not allege a clear error of
judgment in sentencing.



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        “‘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). Further, the Court notes 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. 6, State v. Slater, 222 W.Va. 499, 665 S.E.2d 674 (2008). In his petition for appeal,
petitioner admits that the sentence at issue does not exceed that set forth in the applicable statute
and that the circuit court did not rely on any impermissible factors in determining the sentence. As
such, the Court finds no error in the circuit court sentencing petitioner to a term of incarceration
of one to ten years for his conviction of daytime burglary pursuant to West Virginia Code § 61-3­
11.

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


                                                                                          Affirmed.


ISSUED: March 12, 2013

CONCURRED IN BY:

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

DISSENTING:

Justice Menis E. Ketchum




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