2. “The Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands.” Syllabus Point 1, in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).
3. “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).
Per Curiam:
This case is before the Court upon an appeal of the July 1, 2008, order of the
Circuit Court of Berkeley County through which the circuit court denied a motion by the
appellant, William Georgius, III, for reconsideration of his indeterminate sentence of not less
than fifteen nor more than thirty-five years in the state penitentiary upon his conviction for
first degree sexual assault in violation of W.Va. Code § 61-8B-3 (2000). On appeal, the
appellant maintains that the circuit court failed to properly apply the law as set forth in State
v. Arbaugh, 215 W.Va. 132, 595 S.E.2d 289 (2004). Based upon the parties' briefs and
arguments in this proceeding, as well as the relevant statutory and case law, we are of the
opinion that the circuit court did not commit reversible error and accordingly, affirm the
decision below.
As previously stated, following a jury trial, the appellant was convicted of first
degree sexual assault. Thereafter, the circuit court found in its August 3, 2005, order that the
appellant “accepted no responsibility for his actions and exhibited no remorse.” In fact,
during his April 29, 2005, three-hour interview by child psychiatrist Joseph R. Novello,
M.D., which was a part of the pre-sentencing forensic evaluation, the appellant continued to
maintain his innocence in spite of his conviction. He contended: “I know I'm innocent and
God knows too.” He cited to his alibi witnesses who testified that he could not have been
present at the time of the alleged crimes. He said that the circuit court, however, chose to
believe the word of “a five-year-old girl.” The appellant said that “there was [sic] no
witnesses, no physical evidence, no DNA-no nothing.” During the sentencing hearing, the
victim's mother, who is the appellant's sister, requested that the appellant receive the
maximum sentence allowed. On August 13, 2005, the appellant was sentenced to an
indeterminate sentence of fifteen to thirty-five years in the State penitentiary.
The appellant did not appeal his conviction or his sentence; however, on
October 11, 2005, he timely filed a Rule 35(b) motion under the West Virginia Rules of
Criminal Procedure requesting that the circuit court reconsider his sentence. (See footnote 1) Nearly three
years later, the circuit court heard testimony on the motion for reconsideration from the
appellant. The appellant, who was twenty-one years old at the time, testified that he had
admitted his guilt to his father and sisters and regretted his previous denials. He said that he
made the admission following the death of his mother in November 2006 because she died
believing a lie and that he did not want his father to die without knowing the truth regarding
the appellant's sexual assault of his niece. He had not, however, admitted his guilt or offered
an expression of regret directly to the victim at any time.
At the same hearing, the appellant's sister testified that her parents, who were
also the appellant's parents, were abusive and negligent toward her and the appellant as they
grew up in their home. She said that in spite of the fact that she “wanted to skin [the
appellant] alive” prior to his initial sentencing for the sexual assault of her daughter, she now
favored a reduction of his sentence. She also testified that she no longer had legal custody
of the victim. She stated that the victim, who was eleven at that time, lived with her father.
She was not even able to answer where the victim attended school as she testified: “I'm not
really sure, to be honest with you.”
The appellant then agreed with the information provided by his sister regarding
abusive parents, however, that testimony conflicted with the appellant's prior statement
incorporated in the pre-sentence report wherein he stated that he and his parents had an
excellent relationship. Moreover, during the reconsideration hearing, the circuit court
recognized the inconsistency from his prior statements and noted that after his conviction,
and while he was an adult, the appellant “stated that he was never abused as a child and he
characterized his family as being all American.” On July 1, 2008, the circuit court denied
the appellant's motion for reconsideration. This appeal followed.
II.
In reviewing the findings of fact and conclusions of law of a circuit court concerning an order on a motion made under Rule 35 of the West Virginia Rules of Criminal Procedure, we apply a three-pronged standard of review. We review the decision on the Rule 35 motion under an abuse of discretion standard; the underlying facts are reviewed under a clearly erroneous standard; and questions of law and interpretations of statutes and rules are subject to a de novo review.
This Court has further held that:
As a general rule, the sentence imposed by a trial court is not subject to appellate review. However, in cases ... in which it is alleged that a sentencing court has imposed a penalty beyond the statutory limits or for impermissible reasons, appellate review is warranted. Syl. Pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).
State v. McClain, 211 W.Va. 61, 64, 561 S.E.2d 783, 786 (2002). Moreover, with regard to
this Court's review of the circuit court's sentencing determination, this Court explained that:
“The Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse of
discretion standard, unless the order violates statutory or constitutional commands.” Syllabus
Point 1, in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997). With these standards
in mind, the parties' arguments will be considered.
Conversely, the State maintains that the appellant's argument that the circuit
court should have sentenced him differently is without merit. The State contends that the
appellant showed no remorse and accepted no responsibility for his offense at his sentencing
hearing in spite of the significant emotional trauma experienced by the victim, nor did the
appellant present any evidence that he would not be a continuing threat to the victim or to the
community. The State also points out that several members of the appellant's family spoke
at his sentencing hearing and requested that the court impose the statutory sentence.
In the case at hand, the statutory sentence for felony first degree sexual assault,
in violation of W.Va. Code § 61-8B-3 is fifteen to thirty-five years in the penitentiary. The
version of the statute applicable at the time of the appellant's 2005 trial (See footnote 4) provided as follows:
(a) A person is guilty of sexual assault in the first degree when:
(1) The person engages in sexual intercourse or sexual intrusion with another person and, in so doing:
(i) Inflicts serious bodily injury upon anyone; or
(ii) Employs a deadly weapon in the commission of the act; or
(2) The person, being fourteen years old or more, engages in sexual intercourse or sexual intrusion with another person who is eleven years old or less and is not married to that person.
(b) Any person violating the provisions of this section is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than fifteen nor more than thirty-five years, or fined not less than one thousand dollars nor more than ten thousand dollars and imprisoned in a state correctional facility not less than fifteen nor more than thirty-five years.
It is undisputed that the sentence imposed upon the appellant by the circuit
court was within the statutory limits. Moreover, the appellant does not contend that any
impermissible factor was used by the circuit court in sentencing him. As this Court has
firmly established, “[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).
Instead of challenging his sentence based upon statutory limits or some
impermissible factor, the appellant relies solely on Arbaugh and argues that “the trial judge
failed to perform an analysis pursuant to the guidelines required by this Court under Arbaugh.” The appellant further states that Arbaugh is similar to his situation because he
also “led a painful life,” including emotional abuse from family members. As previously
discussed, however, the first time the appellant made these allegations was six years after
assaulting his niece and during a hearing for his motion for reconsideration of his sentence.
In fact, his pre-sentence report contained statements from the appellant indicating that he and
his parents had an excellent relationship. Likewise, the appellant's main complaint about his
family life during his youth was that there were inappropriate sexual comments made by his
father “more than a few times.”
The appellant's reliance on Arbaugh is massively misplaced. This Court's
decision in Arbaugh did not create any new standards, guidelines, or requirements to be
followed by the circuit courts of this State as contended by the appellant in his brief before
this Court. Arbaugh was a per curiam decision decided by this Court upon application of
existing precedent and was confined to the very specific facts of that case. As such, we
expressly reject the appellant's attempt to elevate or expand this Court's very limited per
curiam decision in Arbaugh.
At the hearing following his motion for reconsideration of his sentence, the
appellant testified that he participated in various educational programs offered through the
prison system. He also testified that he regretted that he had not accepted responsibility
earlier; however, he did not provide evidence that he expressed remorse or apology toward
the victim. Furthermore, as the circuit court noted in its July 1, 2008, order, the appellant
failed to present to the circuit court other important evidence including: the wishes of the
victim or her father with regard to the appellant's request for a reduced sentence; the failure
to provide any current psychological evidence from the appellant to assess his future risk to
the victim or to the community; and the failure to provide any evidence regarding his
diagnosis or whether or not any treatment was or should be mandated in any way in light of
his underlying sexual assault. The appellant and his sister were the only people to testify at
the reconsideration hearing. The circuit court held that the statutory penalty imposed on the
appellant was
not disproportionate to the serious felony of which the [appellant] was convicted. Incarceration in a State penal facility is the best means by which the public will remain safe from this [appellant]. The [appellant's] need for correctional treatment is best provided by his continued commitment to a correctional institution. A reduction in sentence will depreciate the seriousness of the [appellant's] crime.
In State v. Redman, 213 W.Va. 175, 179-80, 578 S.E.2d 369, 373-74 (2003),
this Court held that the circuit court did not abuse its discretion in denying a Rule 35(b)
motion to reconsider where no new arguments or reasons for granting the motion were
presented. The Court held:
Because nothing new had transpired in the period following the trial court's ruling on the probation revocation petition, it stands to reason that there would be no additional findings of fact or legal rulings required, other than the granting or denial of the Rule 35 motion itself. See Syl. Pt. 4, in part, Head, 198 W.Va. at 299, 480 S.E.2d at 508 (holding that “[w]hen considering West Virginia Rules of Criminal Procedure 35(b) motions, circuit courts generally should consider only those events that occur within the 120-day filing period”). In making its ruling of August 3, 2001, denying the Rule 35(b) motion, the trial court recognized that Appellant's counsel had not introduced any new arguments or reasons regarding the issue of probation. Consequently, the trial court referenced the reasons previously given in its March 16, 2001, ruling in denying probation in the first instance. By clearly incorporating its earlier findings of fact and conclusions of law from the March 16, 2001, ruling and given the absence of any new evidence or even new legal arguments raised through the Rule 35 motion, the lower court was not in violation of this Court's holdings that require findings of fact and conclusions of law as a necessary prerequisite to appellate review.
Moreover, in State v. Sugg, 193 W.Va. 388, 406, 456 S.E.2d 469, 487 (1995), we held that
“[a]s a general proposition, we will not disturb a sentence following a criminal conviction
if it falls within the range of what is permitted under the statute.” It is not the proper
prerogative of this Court to substitute its judgment for that of the trial court on sentencing
matters, so long as the appellant's sentence was within the statutory limits, was not based
upon any impermissible factors, and did not violate constitutional principles. Similar to the
situation in Redman, the appellant herein did not raise any new legal arguments nor did he
provide any new evidence through the Rule 35 motion. Accordingly, the circuit court did not
abuse its discretion in denying the appellant's motion to reconsider his sentence of not less
than fifteen nor more than thirty-five years in the state penitentiary upon his conviction for
first degree sexual assault in violation of W.Va. Code § 61-8B-3 (2000).
Reduction of Sentence. A motion to reduce a sentence may be made, or the court may reduce a sentence without motion within 120 days after the sentence is imposed or probation is revoked, or within 120 days after the entry of a mandate by the supreme court of appeals upon affirmance of a judgment of a conviction or probation revocation or the entry of an order by the supreme court of appeals dismissing or rejecting a petition for appeal of a judgment of a conviction or probation revocation. The court shall determine the motion within a reasonable time. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision.
Just as a trial court's decision to grant or deny probation is subject to the discretion of the sentencing tribunal, so too is the decision whether to sentence an individual pursuant to the Youthful Offenders Act. The determinative language of West Virginia Code § 25-4-6 is stated indisputably in discretionary terms: “[T]he judge of any court ... may suspend the imposition of sentence ... and commit the young adult to the custody of the West Virginia commissioner of corrections to be assigned to a center.” Id. (emphasis supplied). Since the dispositive statutory term is “may,” there can be no question that the decision whether to invoke the provisions of the Youthful Offenders Act is within the sole discretion of the sentencing judge. See State v. Allen, 208 W.Va. 144, 160, 539 S.E.2d 87, 103 (1999) (recognizing that “[c]lassification of an individual as a youthful offender rests within the sound discretion of the circuit court”); accord State v. Richards, 206 W.Va. 573, 575, 526 S.E.2d 539, 541 (1999) (stating that Youthful Offenders Act “grants discretionary authority to the circuit courts to suspend imposition of sentence, and place a qualifying defendant in a program of rehabilitation at a youthful-offender center”); see also State v. Hersman, 161 W.Va. 371, 242 S.E.2d 559 (1978) (discussing factors to be considered by sentencing judge in determining whether an individual should be sentenced as a youthful offender).
State v. Shaw, 208 W.Va. 426, 430, 541 S.E.2d 21, 25 (2000).
We have recognized that probation is a privilege of conditional liberty bestowed upon a criminal defendant through the grace of the circuit court. See, e.g., State ex rel. Winter v. MacQueen, 161 W.Va. 30, 32-33, 239 S.E.2d 660, 661-62 (1977) (“'[A] defendant convicted of a crime has no absolute right to probation, probation being a matter of grace only, extended by the State to a defendant convicted of a crime, in certain circumstances and on certain conditions.'” (quoting State v. Loy, 146 W.Va. 308, 318, 119 S.E.2d 826, 832 (1961))); Syl. pt. 1, State v. Rose, 156 W.Va. 342, 192 S.E.2d 884 (1972) (“Probation is a matter of grace and not a matter of right.”); State ex rel. Riffle v. Thorn, 153 W.Va. 76, 81, 168 S.E.2d 810, 813 (1969) ( “'Probation or suspension of sentence comes as an act of grace to one convicted of a crime[.]'” (quoting Escoe v. Zerbst, 295 U.S. 490, 492, 55 S.Ct. 818, 819, 79 L.Ed. 1566, 1568 (1935))); Syl. pt. 2, State ex rel. Strickland v. Melton, 152 W.Va. 500, 165 S.E.2d 90 (1968) (“Probation is not a sentence for a crime but instead is an act of grace upon the part of the State to a person who has been convicted of a crime.”).
State v. Duke, 200 W.Va. 356, 364, 489 S.E.2d 738, 746 (1997).
(c) Notwithstanding the provisions of subsection (b) of this section, the penalty for any person violating the provisions of subsection (a) of this section who is eighteen years of age or older and whose victim is younger than twelve years of age, shall be imprisonment in a state correctional facility for not less than twenty-five nor more than one hundred years and a fine of not less than five thousand dollars nor more than twenty-five thousand dollars.