                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS


State of West Virginia,                                                          FILED
Plaintiff Below, Respondent                                                  November 8, 2019
                                                                              EDYTHE NASH GAISER, CLERK
vs.) No. 18-0459 (Grant County 17-F-50)                                       SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA


Theresa M. Vanmeter,
Defendant Below, Petitioner



                              MEMORANDUM DECISION


        Petitioner Theresa M. Vanmeter, by counsel Jason T. Gain, appeals the Circuit Court of
Grant County’s May 4, 2018, order sentencing her to a total indeterminate term of five to forty-
five years of incarceration following her conviction of three counts of possession with intent to
deliver a controlled substance, one count of conspiracy to deliver a controlled substance, and
one count of criminal child neglect causing substantial risk of death or serious bodily injury.
The State of West Virginia, by counsel Caleb A. Ellis, filed a response. Petitioner filed a reply.
On appeal, petitioner argues that her prior drug use and drug addiction was an impermissible
factor upon which the circuit court based her sentence. Petitioner further argues that the Court
should reconsider and overturn Syllabus Point 4 of State v. Goodnight, 169 W. Va. 366, 287
S.E.2d 504 (1982), which states 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.”

        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.

        In November of 2017, petitioner was indicted on nine separate offenses: three counts of
possession with intent to deliver a controlled substance, three counts of conspiracy to deliver a
controlled substance, two counts of simple possession of a controlled substance, and one count
of child neglect causing substantial risk of death or serious bodily injury.

        In March of 2018, petitioner pled guilty to three counts of possession with intent to
deliver a controlled substance, one count of conspiracy to deliver a controlled substance, and
one count of criminal child neglect causing substantial risk of death or serious bodily injury—

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totaling five separate offenses. Per the plea agreement, the remaining charges were dismissed
and the State would recommend that the sentences run consecutively. The plea agreement was
later modified to allow petitioner the ability to argue for probation at sentencing. The circuit
court ordered that a presentence investigation report be completed prior to sentencing; the report
was completed on March 30, 2018.

       The circuit court held a sentencing hearing in April of 2018. Petitioner requested
probation and cited her recent nine-month period of sobriety at a sober living facility. The State
opposed alternative sentencing based on petitioner’s extensive drug use history as revealed in
her presentence investigation report, her recent drug-induced seizure while pregnant, and that
her five-year-old child was found to be living in a home filled with loaded guns and illegal
drugs. The State argued that petitioner’s recent sobriety was only due to her arrests.

       At sentencing, the circuit court considered information provided in petitioner’s
presentence investigation report and stated,

       I do appreciate the efforts Mrs. Van[m]eter’s made. Sometimes you get a little bit
       too late. And this—I mean, this information, I have to agree with [the prosecutor].
       I was a prosecutor for twenty years; I’ve been a [j]udge for nine. I’ve never seen a
       presentence report like that.

Based partly on petitioner’s voluminous drug use history, the circuit court sentenced petitioner
to the following terms of incarceration: two terms of one to fifteen years for her convictions of
possession with intent to deliver heroin and Dilaudid, one term of one to five years for her
conviction of possession with intent to deliver methamphetamine, one term of one to five years
for her conviction of conspiracy, and one term of one to five years for her conviction of child
neglect which could result in substantial risk of death or serious bodily injury. Further, the
circuit court ordered the sentences to run consecutively. The circuit court entered a sentencing
order reflecting its decision on May 4, 2018, and it is from this order that petitioner now
appeals.

         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.
Adams, 211 W. Va. 231, 565 S.E.2d 353 (2002). We have also held 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.” Syl. Pt. 4, State v. Goodnight, 169 W. Va. 366, 287 S.E.2d 504
(1982). Furthermore, regarding the granting of probation as an alternative to incarceration, “the
matter of probation is within the sound discretion of the trial court.” State v. Miller, 172 W. Va.
718, 720, 310 S.E.2d 479, 481 (1983).

        On appeal, petitioner concedes that her sentences are within the applicable statutory
limits, but argues that this Court should find that drug addiction and prior drug use constitute
impermissible factors not to be considered at sentencing. In support of this position, petitioner
relies upon Robinson v. California, 370 U.S. 660 (1962). In Robinson, the United States Supreme
Court addressed a constitutional challenge to a California statute that made the status of narcotic
addiction a criminal offense, “for which the offender may be prosecuted ‘at any time before he
reforms.’” Id. at 666. Ultimately, the United States Supreme Court found that the statute in
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question was unconstitutional because imprisoning those afflicted with drug addiction when it
was possible that they had “never touched any narcotic drug within the State or been guilty of
any irregular behavior there,” inflicted a “cruel and unusual punishment in violation of the
Fourteenth Amendment.” Id. at 667.

        However, Robinson is not applicable because it does not speak to the factors a trial court
may consider at sentencing. Robinson dealt with the constitutionality of a statute criminalizing
addiction, but petitioner does not challenge the validity of the statutes under which her
convictions were obtained and concedes that she violated them. Robinson simply fails to support
petitioner’s assertion that an individual’s history of drug use may not be considered at
sentencing.

        Furthermore, we have previously held that a sentencing court may consider a defendant’s
prior criminal history and rehabilitative potential. See syl. pt. 2, State v. Buck, 173 W. Va. 243,
314 S.E.2d 406 (1984) (holding that a sentencing court may consider codefendants’ respective
involvement in the crime, prior records, rehabilitative potential, and lack of remorse). Here, the
circuit court considered petitioner’s extensive prior drug use1 and her non-compliance with
previous home incarceration regulations, and found a low likelihood of compliance with
alternative sentencing. Buck permits consideration of a defendant’s prior criminal history, and
petitioner’s prior drug use was considered as it related to her rehabilitative potential, which is
also permissible under Buck. Thus, petitioner has failed to demonstrate error, and we find none.2

       1
        Petitioner also argues that the State’s estimated figures regarding her past drug use were
improper to proffer to the circuit court. However, according to the record, the State’s estimated
figures were based upon petitioner’s admissions within her presentence investigation report that
she used illegal drugs daily for many years. Therefore, we do not find the State’s estimations
improper.
       2
        Petitioner argues that the circuit court erred by not giving her the opportunity to “rebut
the incorrect statements made by the prosecuting attorney, to argue that [petitioner’s] addiction
was not a proper sentencing factor, nor did the court give [petitioner] the opportunity to make a
statement herself in allocution.” However, petitioner completely fails to expound on this
argument and thus fails to comply with Rule 10(c)(7) of the West Virginia Rules of Appellate
Procedure, which requires that the brief contain an

       argument exhibiting clearly the points of fact and law presented, the standard of
       review applicable, and citing the authorities relied on, under headings that
       correspond with the assignments of error. The argument must contain appropriate
       and specific citations to the record on appeal, including citations that pinpoint
       when and how the issues in the assignments of error were presented to the lower
       tribunal. The Court may disregard errors that are not adequately supported by
       specific references to the record on appeal.

Accordingly, we decline to address this issue.




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         Second, petitioner argues that this Court should reconsider and overturn its holding in
Syllabus Point 4 of Goodnight. In support of this argument, petitioner asserts several public
policy arguments that sentencing among the circuit courts is inconsistent and that the lack of
uniformity in sentencing violates a defendant’s equal protection and due process rights.
Petitioner’s counsel anecdotally argues that, in his experience, petitioner would likely have
received probation for her convictions if she had been sentenced in another county. However,
petitioner’s counsel’s assertions are purely speculative, and petitioner cites no authority that
discretion in sentencing is unconstitutional. Therefore, we decline to overturn our long-standing
and often cited holding in Syllabus Point 4 of Goodnight, and find petitioner is entitled to no
relief in this regard.

       For the foregoing reasons, the circuit court’s May 4, 2018, sentencing order is hereby
affirmed.



                                                                                      Affirmed.

ISSUED: November 8, 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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