                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS


                                                                                     FILED
State of West Virginia,                                                              April 16, 2013
                                                                                RORY L. PERRY II, CLERK
Plaintiff Below, Respondent                                                   SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
vs) No. 12-0660 (Cabell County 10-F-351)

Mark A. Sowards,
Defendant Below, Petitioner

                                MEMORANDUM DECISION

        Petitioner Mark Sowards, by counsel James Cagle, appeals the April 18, 2012 order of
the Circuit Court of Cabell County sentencing him to a term of incarceration of forty years for
first degree robbery and two to ten years for malicious assault. The State of West Virginia, by
counsel Scott Johnson, has filed its response.

       The 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.

         In October of 2008, the Cabell County Grand Jury indicted petitioner on one count of
first degree robbery and one count of malicious wounding for events that occurred in Cabell
County.1 In October of 2010, Cabell County Grand Jury indicted petitioner on one count of first
degree robbery and one count of malicious assault for events that occurred in Cabell County.2 On
January 21, 2011, the State filed a motion to amend the second indictment to include the proper
date regarding the malicious assault charge. By order entered on April 19, 2011, the State was
granted permission to amend the second indictment to change the date of the malicious assault
charge from 2010 to 2008. The circuit court also dismissed the first indictment.3 Following a jury
trial, petitioner was sentenced to a term of incarceration of forty years for first degree robbery

       1
        The 2008 indictment stated the crimes were committed on or about August 12, 2008, in
Cabell County, West Virginia.
       2
        The first October of 2010 indictment stated the crimes were committed in Putnam
County, West Virginia, and the date for the malicious assault charge stated it occurred in 2010.
       3
         The State properly amended the second indictment to change the date of the malicious
assault charge. However, the State also changed the location of both crimes from Putnam County
to Cabell County without the circuit court’s permission.
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and two to ten years for malicious assault. The circuit court ordered these sentences to run
consecutively.

        On appeal, petitioner alleges that pursuant to State v. McGraw, 140 W.Va. 547, 85 S.E.2d
849 (1955), the amendment of venue must be considered one of substance because venue is a
jurisdictional fact which the State must prove. Additionally, petitioner argues the State exceeded
the circuit court’s permission when the State amended the second indictment to change the date
of the malicious assault crime as well as the location of both crimes. In support, petitioner states
the amended indictment has a hand-written filed stamp date that is the same as the first
indictment, the date substantially predates the motion to amend and the order granting the
amendment, and the term of the grand jury which returned the indictment ended in December of
2010. Petitioner states he did not waive this assignment of error because it appears that no one
other than the State was aware of the specific change. The State argues that petitioner concedes
that he did not object to the indictment. The State argues that venue is not a change is substance
because this Court has held that venue is not jurisdictional. State v. Tommy Y Jr., 219 W.Va. 530,
536, 637 S.E.2d. 628, 634 (2006). Pursuant to Rule 7(c) of the West Virginia Rules of Criminal
Procedure, venue is not required to be pled in an indictment. The State argues plain error is not
applicable because petitioner did not allege that the State did not prove at trial that venue was
properly in Cabell County and petitioner failed to show an impact on his substantial rights.

        “To trigger application of the ‘plain error’ doctrine, there must be (1) an error; (2) that is
plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public
reputation of the judicial proceedings.” Syl. Pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114
(1995). Moreover, this Court has stated:

       Under the “plain error” doctrine, “waiver” of error must be distinguished from
       “forfeiture” of a right. A deviation from a rule of law is error unless there is a
       waiver. When there has been a knowing and intentional relinquishment or
       abandonment of a known right, there is no error and the inquiry as to the effect of
       a deviation from the rule of law need not be determined. By contrast, mere
       forfeiture of a right-the failure to make timely assertion of the right-does not
       extinguish the error. In such a circumstance, it is necessary to continue the
       inquiry and to determine whether the error is “plain.” To be “plain,” the error
       must be “clear” or “obvious.”

Syl. Pt. 8, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). Applying this standard,
petitioner’s rights were not affected because venue was not an element of the underlying crimes
and petitioner was aware of the necessary elements of the crimes. Upon our review of the
amendment to the second indictment as contained in the appendix record, relevant case law, and
to the arguments of the parties on appeal, we find no plain error.

        Petitioner also argues his sentence violates the proportionality principle found in Article
III, Section 5 of the West Virginia Constitution. Petitioner argues his sentence is disproportionate
because he does not have any prior serious criminal conduct, is the primary care giver for his
mother, and while the victim suffered a broken nose and some facial fractures, he did not present

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any evidence of continuing or future problems or emotional injury. Petitioner argues the sentence
is particularly disproportionate when compared to other statutory sentences. The State argues
that under both the subjective and objective tests, petitioner’s sentence is not disproportionate.
The State argues the violent nature of the assault and his failure to show remorse supported the
sentence and a forty-year sentence is not unusual in West Virginia.

        “‘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 ex rel. Hatcher v. McBride, 221 W.Va.
760, 656 S.E.2d 789 (2007). 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) (per
curiam).

       If a sentence is subject to appellate review, however, the Court must review it under the
standards set forth in State v. Cooper, 172 W.Va. 266, 304 S.E.2d 851 (1983), and Syllabus Point
5 of Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981):

       There are two tests to determine whether a sentence is so disproportionate to a
       crime that it violates our constitution. Accord, Stockton v. Leeke, 269 S.C. 459,
       237 S.E.2d 896, 897 (1977). The first is subjective and asks whether the sentence
       for the particular crimes shocks the conscience of the court and society. If a
       sentence is so offensive that it cannot pass a societal and judicial sense of justice,
       the inquiry need not proceed further. When it cannot be said that a sentence
       shocks the conscience, a disproportionality challenge is guided by the objective
       test we spelled out in Syllabus Point 5 of Wanstreet v. Bordenkircher, 166 W.Va.
       523, 276 S.E.2d 205 (1981): In determining whether a given sentence violates the
       proportionality principle found in Article III, Section 5 of the West Virginia
       Constitution, consideration is given to the nature of the offense, the legislative
       purpose behind the punishment, a comparison of the punishment with what would
       be inflicted in other jurisdictions, and a comparison with other offenses within the
       same jurisdiction.

State v. Cooper, 172 W.Va. 266, 272, 304 S.E.2d 851, 857 (1983). Pursuant to West Virginia
Code § 61-2-9, petitioner received the statutory term of incarceration of not less than two years
nor more than ten years for malicious assault. Additionally, petitioner’s sentence is within the
statutory limits for first degree robbery pursuant to West Virginia Code § 61-2-12. This Court
finds that petitioner’s sentence does not violate the West Virginia Constitution, as the sentence
does not shock the conscience, nor is it disproportionate.

       For the foregoing reasons, we affirm.



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                                        Affirmed.

ISSUED: April 16, 2013

CONCURRED IN BY:

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




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