                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

                                                                                   FILED
State of West Virginia,
Plaintiff Below, Respondent                                                    October 11, 2019
                                                                                EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
vs) No. 18-0971 (Ohio County 17-F-100)                                              OF WEST VIRGINIA


Clifton Marcus Dent,
Defendant Below, Petitioner


                               MEMORANDUM DECISION
        Petitioner Clifton Marcus Dent, by counsel Richard W. Hollandsworth, appeals the August
30, 2018, order of the Circuit Court of Ohio County that sentenced petitioner to ninety years in
prison for his Kennedy1 plea to one count of robbery in the first-degree. The State of West Virginia,
by counsel Scott E. Johnson, filed a response in support of the circuit court’s order. On appeal,
petitioner argues that the circuit court abused its discretion and violated Article III, Section 5 of
the West Virginia Constitution in sentencing petitioner.

       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 affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.

         At about 4:30 p.m. on May 12, 2017, police officers arrived at the scene of a carjacking in
Wheeling. The officers spoke with the victim, seventy-two-year-old Diane Higgs, who was
bleeding from her nose and face and had severe swelling around both eyes. Ms. Higgs reported
that, as she parked in front of her apartment building, she saw a black man with short hair walking
towards her gold 2008 Honda CRV (the “Honda”). The man opened the Honda’s door and
demanded Ms. Higgs’s car keys. When Ms. Higgs did not immediately comply, the man repeatedly
struck her in the face and head, pulled her out of the Honda, and threw her onto the ground. The
man then drove off in the Honda going the wrong direction on a one-way street. The police arrived
at the scene soon thereafter. They questioned Ms. Higgs and found she needed immediate medical
attention. Ms. Higgs was then transported to the hospital by ambulance.

       1
          Relying on North Carolina v. Alford, 400 U.S. 25 (1970), this Court held in Syllabus
Point 1 of Kennedy v. Frazier, 178 W. Va. 10, 357 S.E.2d 43 (1987), that “[a]n accused may
voluntarily, knowingly and understandingly consent to the imposition of a prison sentence even
though he is unwilling to admit participation in the crime, if he intelligently concludes that his
interests require a guilty plea and the record supports the conclusion that a jury could convict him.”
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        Mary L. Klosterman, who lived in the same apartment complex as Ms. Higgs, reported that
she heard screams and a car alarm and observed Ms. Higgs’s Honda backing out of a parking spot.
Becky Meadows, who also lived in the same apartment complex, observed a black man getting
into Ms. Higgs’s Honda while Ms. Higgs was on the ground screaming. Soon thereafter, Karen
Clyne reported seeing a gold Honda driving the wrong way on Pike Street. The driver of the Honda
yelled at Ms. Clyne to “get out of the way.” Ms. Clyne described the driver as a black male with
curly hair who appeared to be thirty to forty years old. At 5:39 p.m., Luke Reed called the Wheeling
Police and informed them that a gold Honda was traveling eastbound on I-70 between Claysville
and West Alexander, Pennsylvania. Diane Schau also reported a gold car in the eastbound lane of
I-70. The Pennsylvania State Police located Ms. Higgs’s Honda broken down on the eastbound
berm of I-70. They found petitioner nearby on foot and noted he matched the descriptions given
by the various witnesses.

       Petitioner was indicted in Ohio County on one count of first-degree robbery and two counts
of malicious assault.

        Christi Cooper-Lehki, DO, prepared petitioner’s “Forensic Psychiatry Report: Competency
to Stand Trial/Criminal Responsibility.” Dr. Cooper-Lehki found that, despite petitioner’s
diagnosis of Schizoaffective Disorder, Bipolar Type, and Polysubstance Dependence, he did not
lack substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct
to the requirements of the law. Dr. Cooper-Lehki also found that petitioner had “a sufficient
rational and factual understanding of the proceedings against him and ha[d] adequate ability to
assist his attorney in his own defense.”

        Thereafter, petitioner entered a Kennedy plea in which he agreed to plead guilty to one
count of first-degree robbery pursuant to West Virginia Code § 61-2-12(a) and one count of
unlawful assault pursuant to West Virginia Code § 61-2-10b(c). In his plea agreement, petitioner
acknowledged that the penalty for first-degree robbery was not less than ten years in prison, and
that the sentence for unlawful assault was one to five years in prison.

        At an April 6, 2018, hearing, the circuit court accepted petitioner’s Kennedy plea and
sentenced him to one to five years in prison for his plea to unlawful assault. However, the circuit
court delayed sentencing on petitioner’s first-degree robbery plea so that petitioner’s probation
officer could prepare a presentence investigation report.

        Following his guilty plea, petitioner participated in a court-ordered psychological
evaluation “to provide the court with professional opinions for the purpose of sentencing.” Dr.
Robert Rush presented a detailed report to the court. Additionally, petitioner’s probation officer
prepared a presentence investigation report in which she recommended petitioner receive an
eighty-year sentence given his substantial risk of reoffending. The probation officer noted in her
report that she worked with petitioner for thirteen years during which he was arrested numerous
times, had twelve misdemeanor and two felony convictions, and took his mother’s car several
times despite not having a valid driver’s license. The probation officer also noted that petitioner is
not compliant in taking his psychiatric medication and continues to use illegal drugs, which causes
him to act out. The probation officer opined that petitioner’s destructive behaviors are escalating,

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and that he is in need of correctional treatment. The probation officer asserted that when petitioner
is incarcerated, prison staff manage his medications, which is imperative for his well-being; and
he is away from the illegal substances that make him volatile. The probation officer further found
that petitioner (1) has serious mental and emotional issues, and drug and alcohol addiction; (2) has
been on probation about four times since 1997, but failed to benefit from probation each time; and
(3) has twice been placed on probation with the condition that he complete a treatment court
program, but was removed from the program both times. Finally, the probation officer found that
petitioner assaulted another woman on June 15, 2016, and demanded money from her while she
sat in her vehicle. In that case, petitioner pled guilty to simple assault and his probation was
revoked.

       At an August 30, 2018, hearing, the circuit court sentenced petitioner to ninety years in
prison for his first-degree robbery conviction, and ordered that the sentence be served
consecutively to petitioner’s sentence for unlawful assault. The circuit court entered its sentencing
order on October 8, 2015. Petitioner now appeals his ninety-year sentence for first-degree robbery.

         “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).

        On appeal, petitioner argues that the circuit court violated Article III, Section 5 of the West
Virginia Constitution in sentencing petitioner to a ninety-year term of incarceration for his first-
degree robbery conviction. That section provides, in pertinent part, that “[p]enalties shall be
proportioned to the character and degree of the offence.” Petitioner admits that a ninety-year
sentence is permissible under the open-ended robbery statute; however, he argues that his sentence
is so disproportionate that it shocks the conscience and offends fundamental notions of human
dignity. Petitioner claims he will have to serve twenty-two years and six months in prison before
he is eligible for parole, whereas a person convicted of murder in the first degree (with mercy) is
eligible for parole in fifteen years. Petitioner also asserts that if he is not released on parole, he will
serve forty-five years in prison with good time. Accordingly, he will be eighty-three years old
when he is released from prison, well past the life expectancy of the average person. Therefore,
petitioner avers that the circuit court imposed a life sentence. Finally, petitioner argues that his
ninety-year sentence is disproportionate because he did not use a weapon when he assaulted Ms.
Higgs. Petitioner points out that in State v. Cooper, 172 W. Va. 266, 304 S.E.2d 851 (1983), we
reversed a forty-five-year sentence for first-degree robbery and suggested the appropriate sentence
was the ten-year statutory minimum because the defendant did not use a weapon.

       Petitioner’s sentence is not disproportionate under Article III, Section 5 of the Constitution
of West Virginia. “Two tests are employed in determining whether a sentence is constitutionally
disproportionate: a subjective test and an objective test. State v. Gibbs, 238 W.Va. 646, 659, 797
S.E.2d 623, 636 (2017).” Jeffrey v. Mutter, No. 17-0792, 2018 WL 4944959, at *5 (W. Va. Oct.
12, 2018)(memorandum decision). Under the subjective test,

                 [p]unishment may be constitutionally impermissible, although not cruel or
        unusual in its method, if it is so disproportionate to the crime for which it is inflicted
        that it shocks the conscience and offends fundamental notions of human dignity,

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       thereby violating West Virginia Constitution, Article III, Section 5 that prohibits a
       penalty that is not proportionate to the character and degree of an offense.

Cooper, 172 W. Va. at 267-68, 304 S.E.2d at 852, syl. pt. 5. “In making the determination of
whether a sentence shocks the conscience, we consider all of the circumstances surrounding the
offense.” State v. Adams, 211 W. Va. 231, 233, 565 S.E.2d 353, 355 (2002). Here, petitioner
demanded an elderly woman’s car keys. When she did not comply quickly enough, he beat her
severely and then threw her out of the car and onto the ground, causing significant injuries. In fact,
petitioner struck Ms. Higgs with such force that doctors found bone fragments from her right
orbital floor fracture in her right sinus cavity. Although petitioner blames his actions on his mental
health problems, Dr. Cooper-Lehki found petitioner knew right from wrong and had the ability to
conform his conduct accordingly. Consequently, given the violent nature of petitioner’s crime
against an elderly person, we do not find that petitioner’s sentence shocks the conscience.

       Having found that the subjective test does not apply, we turn to the objective test, which
provides that,

               [i]n 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.

Syl. Pt. 5, Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981).

       With regard to the nature of petitioner’s first-degree robbery, we have previously observed
that

       “[a]ggravated robbery2 in West Virginia has been recognized as a crime that
       involves a high potentiality for violence and injury to the victim involved.” State v.
       Ross, 184 W.Va. 579, 582, 402 S.E.2d 248, 251 (1990) . . . . See also State v. Glover,
       177 W.Va. 650, 659, 355 S.E.2d 631, 640 (1987) (“[Aggravated r]obbery has
       always been regarded as a crime of the gravest character.”).

Adams, 211 W. Va. at 234, 565 S.E.2d at 356. The aggravated robbery in this case was particularly
violent and caused substantial injury to the elderly victim. Nevertheless, petitioner likens his case
to Cooper where we reversed a forty-five-year robbery sentence and suggested a ten-year sentence.


       2
         “W. Va. Code, 61-2-12, defines ‘aggravated robbery’ as ‘commit[ting], or attempt[ing]
to commit, robbery by partial strangulation or suffocation, or by striking or beating, or by other
violence to the person, or by the threat or presenting of firearms, or other deadly weapon or
instrumentality.” State v. Massey, 178 W. Va. 427, 431, 359 S.E.2d 865, 869 (1987). Accordingly,
the law regarding “aggravated robbery” applies to petitioner’s first-degree robbery conviction
under West Virginia Code § 61-2-12(a).


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However, petitioner fails to note that the defendant in Cooper was only nineteen years old at the
time of his crime and had only one prior conviction, a misdemeanor for public intoxication.
Conversely, petitioner was in his thirties when he robbed Ms. Higgs, and had a lengthy criminal
history that included an assault on another woman during which he demanded money from her
while she sat in her vehicle.

       As for the legislative purpose behind petitioner’s punishment, petitioner was convicted
under West Virginia Code § 61-2-12(a) that provides:

       Any person who commits or attempts to commit robbery by: (1) Committing
       violence to the person, including, but not limited to, partial strangulation or
       suffocation or by striking or beating; or (2) uses the threat of deadly force by the
       presenting of a firearm or other deadly weapon, is guilty of robbery in the first
       degree and, upon conviction thereof, shall be imprisoned in a state correctional
       facility not less than ten years.

Although § 61-2-12(a) applies a minimum sentence, the West Virginia Legislature did not set a
maximum sentence and, instead, left the maximum sentence to the trial court’s discretion.

       Our cases have recognized that the legislatively created statutory
       minimum/discretionary maximum sentencing scheme for aggravated robbery
       serves two purposes. “First, it gives recognition to the seriousness of the offense by
       imposing a minimum sentence below which a trial court may not go. Second, the
       open-ended maximum sentencing discretion allows trial courts to consider the
       weight of aggravating and mitigating factors in each particular case.” State v. Mann,
       205 W.Va. 303, 316, 518 S.E.2d 60, 73 (1999) . . . (citation omitted).

Adams, 211 W. Va. at 234-35, 565 S.E.2d at 356-57. Here, the circuit court considered the weight
of the aggravating and mitigating factors in this case and determined petitioner’s sentence.
Accordingly, the circuit court satisfied the legislative purpose behind petitioner’s punishment.

        As for petitioner’s claim that his sentence is, in essence, a life sentence, we have recognized
that “the Legislature, by not expressly fixing a maximum term, has impliedly authorized life
imprisonment as the maximum penalty for aggravated robbery. State v. Turley, 177 W. Va. 69,
350 S.E.2d 696 (1986).” State v. Mann, 205 W. Va. 303, 315, 518 S.E.2d 60, 72 (1999).

        Regarding a comparison of petitioner’s ninety-year sentence for a first-degree robbery with
sentences for first-degree/aggravated robbery in other jurisdictions, “[w]e have previously
recognized that other jurisdictions permit long prison sentences for the crime of aggravated
robbery.” Adams, 211 W. Va. at 235, 565 S.E.2d at 357. In Adams, we found that Mr. Adams’s
ninety-year prison sentence for first-degree robbery was “consistent with punishments imposed by
other jurisdictions for similar conduct.” Accordingly, we find that petitioner’s ninety-year prison
sentence is consistent with punishments imposed for similar conduct by other jurisdictions.

       Finally, with regard to comparisons with other offenses within West Virginia, in Adams,
we highlighted that we have “rejected proportionality challenges in a number of cases involving

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aggravated robbery sentences.” Id. Moreover, as noted above, in Adams we affirmed a ninety-year
sentence for aggravated robbery. Id. at 236, 565 S.E.2d at 358. Like petitioner, the appellant in
Adams argued that a ninety-year sentence was disproportionate because he used no weapon, and
only beat his robbery victim. We found that, “[w]hile it is true that this Court examines whether
an aggravated robbery involved the use of a deadly weapon or violence, our analysis has never
been limited to only these considerations.” Id. at 235, 565 S.E.2d at 357. Although petitioner did
not use a weapon during the commission of his robbery, he did employ extreme violence by
striking and beating Ms. Higgs in the process of robbing her of her car. Thus, we do not find
petitioner’s sentence to be so disproportionate that it shocks the conscience or offends fundamental
notions of human dignity. Accordingly, we reject petitioner’s argument that his sentence violates
Article 3, Section 5 of the West Virginia Constitution.

        For the foregoing reasons, we affirm the circuit court’s August 30, 2018, order sentencing
petitioner to ninety years in prison for his first-degree robbery conviction.

                                                                                         Affirmed.


ISSUED: October 11, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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