                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,                                                                FILED
Plaintiff Below, Respondent                                                          January 14, 2013
                                                                                  RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
vs.) No. 11-1499 (Wood County 10-F-151)                                             OF WEST VIRGINIA



Nathaniel Pittman,
Defendant Below, Petitioner


                                 MEMORANDUM DECISION

       Petitioner’s appeal, by counsel Robin S. Bonovitch, arises from the Circuit Court of Wood
County, wherein he was sentenced to a term of incarceration of one to five years by order entered
on September 22, 2011. The State, by counsel Michele Duncan Bishop, has filed its response.

       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 Revised Rules of Appellate
Procedure.

        Following petitioner’s guilty plea to one felony count of delivery of a controlled
substance, the circuit court suspended petitioner’s sentence and committed him to the Anthony
Center for the Youthful Offender Program for a term of six months to two years beginning on
July 13, 2011. Petitioner was later discharged from the program as unfit, and, on September 22,
2011, the circuit court sentenced petitioner to a term of one to five years of incarceration. On
appeal, petitioner argues that his sentence is excessive and violates his due process rights under
both the United States Constitution and the West Virginia Constitution because the sentence is
disproportionate to the character and degree of his crime. In support, petitioner argues that his
young age and lack of a lengthy criminal history support a less severe sentence. In response, the
State argues that petitioner initially received a less severe sentence in the form of probation,
which was revoked for his continued use of marijuana. The State also notes that petitioner was
then committed to the Anthony Center, from which he was discharged as unfit for making violent
threats against other offenders and threatening to start a riot. As such, the State argues that
nothing about petitioner’s eventual sentence is shocking.

        “‘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). Moreover, “‘[s]entences imposed by the trial court, if within
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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).

        Upon our review, we find no abuse of discretion by the circuit court in sentencing
petitioner to incarceration following his return from the Anthony Center. Petitioner pled guilty to
one felony count of delivery of a controlled substance in violation of West Virginia Code § 60A­
4-401(a)(ii). Pursuant to that statute, any defendant convicted thereunder “may be imprisoned in
the state correctional facility for not less than one year nor more than five years. . . .” Because the
sentence imposed was within statutory limits and was not based on an impermissible factor, the
Court finds no error.

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


                                                                                            Affirmed.


ISSUED: January 14, 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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