Mark D. Sergent, Esquire
Darrell V. McGraw, Jr.
Spencer, West Virginia Attorney General
Attorney for Appellant Allen H. Loughry, II
Asst. Attorney General
Charleston, West Virginia
Attorneys for Appellee
The Opinion of the Court was delivered PER CURIAM.
JUSTICE STARCHER dissents and reserves the right to file a dissenting opinion.
1. 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. Syl. Pt. 1, State v. Head, 198 W.Va. 298, 480 S.E.2d 507
2. 'Sentences imposed by the trial court, if within statutory limits and if not
based on some unpermissible 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. 7,
State v. Layton, 189
W.Va. 470, 432 S.E.2d 740 (1993).
3. The decision of a trial court to deny probation will be overturned only
when, on the facts of the case, that decision constituted a palpable abuse of discretion.
Pt. 2, State v. Shafer, 168 W.Va. 474, 284 S.E.2d 916 (1981)
Levi Sam Shaw appeals from the September 13, 1999, order of the Circuit Court of Roane County denying his motion for reconsideration of sentencing in connection with his previous plea of guilty to charges of first and fourth degree arson. Appellant argues that the trial court abused its discretion in initially denying his motion for probation and in subsequently denying his motion for reconsideration. Upon review of the record in this matter, we find no error and accordingly, affirm.
Following his arrest and arraignment in late May 1998 for three counts of first
degree arson of a residence, attempted arson of a structure, and attempted third degree arson
of personal property, Appellant was indicted on three counts of first degree arson and three
counts of conspiracy to commit a felony. Appellant entered a plea of guilty on January 11,
1999, to the charges of first degree arson and fourth degree arson. At the sentencing hearing
held on February 19, 1999, the trial court sentenced Appellant to ten years for the first degree
arson conviction and two years for the fourth degree arson conviction.See footnote 2
The sentences were
to run concurrently and Appellant was further ordered to pay restitution in the amount of
Appellant began serving his sentence at the Anthony Center for Youthful
Offenders (Anthony) at Neola, West Virginia, at an unspecified date following the
sentencing hearing. On July 15, 1999, Appellant was transferred from Anthony to the
Central Regional Jail at Sutton, West Virginia. On the date of the transfer, the warden at
Anthony authored two separate documents, explaining that Appellant was not sentenced
pursuant to the Youthful Offenders Act, West Virginia Code §§ 25-4-1 to -10 (Supp. 2000),
and, therefore, was unfitSee footnote 3
for continued housing at such facility and, also, that Anthony
lacked appropriate medical personnel to treat Appellant's diabetic condition.
Appellant filed a motion for reconsideration of sentencing on July 21, 1999, asserting that he was a good candidate for probation and was wrongly denied same. At a brief hearing on the motion for reconsideration on August 9, 1999, Appellant's counsel apprised the trial court of his client's diabetic condition. The matter was continued until September 13, 1999, to permit the retrieval and review of Anthony's medical records pertinent to Appellant. At the September 13, 1999, hearing, the circuit court took testimony from Appellant on the issue of his diabetic condition and the nature of his required treatment.
Despite the circuit court's initial ruling from the bench during the September
13, 1999, hearing that Appellant should be transferred back to Anthony,See footnote 4
reconsidered this position and ultimately ruled that the initial order sentencing Appellant to
a specified term of incarceration was to remain in place. Appellant seeks a reversal of the
trial court's September 13, 1999, order denying his motion for reconsideration of sentencing.
After refuting either the accuracy or the significance of the eleven factors relied
upon by Appellant,See footnote 7
the State discusses the law as it relates to the discretion of a trial judge
in rendering a criminal sentence. Focusing initially on the inherent limitations imposed on
appellate review of sentencing, the State cites syllabus point seven of State v. Layton, 189
W.Va. 470, 432 S.E.2d 740 (1993): 'Sentences imposed by the trial court, if within
statutory limits and if not based on some unpermissible factor, are not subject to appellate
review.' Syllabus point 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).
Continuing its recitation of the law, the State quotes from our recent decision in State v.
Duke, 200 W.Va. 356, 489 S.E.2d 738 (1997), wherein the legal underpinnings of probation
were fully explored:
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.).
200 W.Va. at 364, 489 S.E.2d at 746.
We explained further in Duke that,
the decision as to whether the imposition of probation is appropriate in a certain case is entirely within the circuit court's discretion. The West Virginia Legislature has established that [a]ny circuit court of this State shall have authority ... to place on probation any person convicted of a crime. W.Va.Code § 62-12-1 (1975) (Repl.Vol.1992). Likewise, W.Va.Code § 62-12-3 (1988) (Repl.Vol.1992) specifies the discretionary nature of the circuit court's authority to suspend either the imposition or execution of a sentence of incarceration and to place the defendant on a period of probation . . . .
200 W.Va. at 364, 489 S.E.2d at 746. Except for clear statutory exceptions, this legislative grant of power clearly places the matter of probation within the sound discretion of the trial court. State v. Wotring, 167 W.Va. 104, 118, 279 S.E.2d 182, 192 (1981) ; accord State v. Simon, 132 W.Va. 322, 348, 52 S.E.2d 725, 738 (1949) (concluding that the matter of suspending sentence or placing the defendant on probation was within the discretion of the trial court). The law remains, as articulated in syllabus point two of State v. Shafer, 168 W.Va. 474, 284 S.E.2d 916 (1981), that [t]he decision of a trial court to deny probation will be overturned only when, on the facts of the case, that decision constituted a palpable abuse of discretion.
In support of its position that the trial court did not abuse its discretion in
denying Appellant probation, the State maintains that the lower court fully articulated its
reasons for imposing incarceration rather than probation; the lower court did not rely on any
impermissible factors in sentencing Appellant; the trial court's imposition of sentence was
within statutory limits; and the severity of the underlying acts of arson merit punishment
more severe than probation. Having reviewed the record on this issue in conjunction with
the arguments raised, we find no abuse of discretion in the trial court's denial of probation.
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, No. 25980, 1999 WL 1040545 at *12 (Nov. 17, 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). Based on the record before us, we find no abuse of discretion in the trial court's decision not to sentence Appellant as a youthful offender.See footnote 8 8
Based on the foregoing, the decision of the Circuit Court of Roane County is
1. He had just turned 18 before the instant offenses occurred.
2. He had no prior criminal record either as a juvenile or as an adult.
3. He had cooperated with the investigative officer and had signed a written statement of his involvement in the instant offenses.
4. He had ceased contact or association with the other person that was involved in the instant offense.
5. He had offered to make restitution to the victims in this action.
6. He exhibited remorse for his actions and publicly apologized for his actions at his sentencing hearing to the victim present.
7. He exhibited responsibility for his actions.
8. He had served in the Central Regional Jail approximately 130 days of confinement as of the sentencing date.
9. His education as a high school student was interrupted by the instant offenses and he needed to continue his education.
10. He had plans and interest in learning the building construction trades and needed vocational training.
11. He had family support and was living with his mother and attending high school prior to his arrest.
of February, 1999, remains in full force and effect.