September 2003 Term
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
Defendant Below, Appellant
Appeal from the Circuit Court of Kanawha County
Honorable Louis H. Bloom, Judge
Criminal Action No. 99-F-379
REVERSED AND REMANDED WITH DIRECTIONS
Submitted: September 24, 2003
Filed: November 10, 2003
Darrell V. McGraw, Jr.|
Robert D. Goldberg
Assistant Attorney General
Charleston, West Virginia
Attorney for Appellee
Troy N. Giatras, Esq.|
Mark L. French, Esq.
Giatras & Webb
Charleston, West Virginia
Attorney for Appellant
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE STARCHER and JUSTICE MAYNARD concur
and reserve the right to file concurring opinions.
Supreme Court of Appeals reviews sentencing orders, including orders of restitution
made in connection with a defendant's sentencing, under a deferential abuse
of discretion standard, unless the order violates statutory or constitutional
commands. Syllabus Point 1, State v. Lucas, 201 W. Va. 271,
496 S.E.2d 221 (1997).
2. Punishment 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, 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. Syllabus Point 5, State v. Cooper, 172 W. Va. 266, 304 S.E.2d 851 (1983).
The appellant in the present proceeding, Raymond Richardson, was sentenced
to 30 years in the State Penitentiary for kidnaping. He was also sentenced to five years in the
penitentiary, to run concurrently with the kidnaping sentence, for wanton endangerment. On
appeal, the appellant claims that the 30-year sentence for kidnaping was disproportionate to
the crime committed, and that the sentence is, as a consequence, unconstitutionally
The dispute erupted into violence after the appellant delivered Ms. Franks to
her apartment and after she went to bed. The appellant initially left the apartment, but later
reentered it and confronted Ms. Franks. A heated argument ensued, and during the argument,
the appellant forcefully struck Ms. Franks several times and forced her to exit the apartment
and walk down a side street to a building owned by his grandfather. In the building, the
appellant continued to confront Ms. Franks and made various serious threats against her.
Eventually, however, the appellant calmed down, and he and Ms. Franks returned to the
apartment where they made love and fell asleep.
The next day, the appellant's mother who had stopped at Ms. Franks' apartment,
became alarmed when she observed various bruises and knots on Ms. Franks' face. She then
took Ms. Franks to her own home where she fed Ms. Franks and helped her clean up.
Subsequently, she persuaded Ms. Franks to go to a hospital.
Following Ms. Franks' visit to the hospital, the incident was reported to the
authorities, and the appellant was charged with, and indicted for, kidnaping, wanton
endangerment, malicious wounding and domestic battery.
After considerable development of the case, the appellant and the State entered
into plea bargain negotiations, and the negotiations resulted in a plea bargain agreement
under which the appellant agreed to plead guilty to the charges of kidnaping and wanton
endangerment, and the State agreed to drop the malicious wounding and domestic battery
After the parties entered into the plea bargain agreement, the appellant actually
entered guilty pleas to the kidnaping and wanton endangerment charges, as provided in the
plea bargain agreement.
Prior to sentencing the appellant on the pleas, the Circuit Court of Kanawha
County conducted a sentencing hearing at which Ms. Franks, the victim, in essence, pled with
the court that the court impose a minimal sentence upon the appellant. She stated:
I feel even though what he did to me was wrong, I'm over it, you know. It's been two and a half years. I've moved on with my life. I'm going to school. I've got kids to raise. This has been going on for far too long. He's learned his lesson. It's over. I'm not physically hurt by it still. Nothing mentally was wrong with me. My son is perfectly healthy. I mean, I could see if something was wrong with one of us physically to where I can't do anything or something was wrong with my son, to give him the type of sentencing that they want to give him but there's no point. I go to visit him, me and my children_ . . . I go up to the jail. I have contact visits and regular visits. . . .
Ms. Franks also testified that in her visits with him:
He seems fine. There's no rage. There's no temper. He knows what he did. I know what he's done. We've both sat and talked about it. He's apologized umpteen amount of times. I'm just tired of it. He's tired of it. There's no need for him to be there. He needs _ I feel he needs to be out. . . . It wasn't the way I wanted it to be, but it's over. That's how I feel. I really feel it should just be over.
Another witness at the sentencing hearing was Dr. David A. Clayman. Dr.
Clayman was a clinical and forensic psychologist who assessed the appellant. Dr. Clayman
concluded that the appellant was neither a predator nor an excessively violent person. He
indicated that the appellant did not have a history of violence, and he expressed the opinion
that the appellant's behavior on the night of the incident giving rise to the charges was
aberrant and he surmised that it was induced by alcohol ingestion. He also stated that his
assessment of the appellant for violence and sexual violence predator issues showed that the
appellant demonstrated a low risk of repeating the behavior. He further indicated that the
longer the appellant spent in prison, the less likely he would be able to engage in socially
acceptable behavior upon release.
As has previously been indicated, at the conclusion of the sentencing hearing, the circuit court sentenced the appellant to 30 years in the State Penitentiary for kidnaping, and five years in the State Penitentiary for wanton endangerment.
As has also been stated previously, on appeal, the appellant claims that the
30-year sentence for kidnaping is constitutionally impermissible given the circumstances of
In Syllabus Point 1 of State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997),
this Court stated that:
The Supreme Court of Appeals reviews sentencing orders, including orders of restitution made in connection with a defendant's sentencing, under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands.
In State v. Cooper, 172 W. Va. 266, 304 S.E.2d 851 (1983), this Court established a so-called subjective test for determining whether a sentence violates the constitutional disproportionality principle. That test questions whether a sentence offends the conscience and offends the fundamental notions of human dignity. Specifically, in Syllabus Point 5 of State v. Cooper, id., the Court stated:
Punishment 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, thereby violating
West Virginia Constitution, Article III, Section 5 that prohibits
a penalty that is not proportionate to the character and degree of
Further, in State v. Cooper, id., the Court suggested that factors affecting the subjective impact of a sentence include the age of the defendant, statements of the victim, and evaluations and recommendations made in anticipation of sentencing.
With these principles in mind, this Court has examined the circumstances of the present case. The facts show that the appellant was twenty years old at the time of the crime charged_ close in age to the nineteen-year-old in the Cooper case. The victim, Ms. Franks, who is the mother of the appellant's child, has stated that neither she, nor the child, was permanently injured as a result of the incident and has plainly expressed the opinion that a lengthy sentence is unjustified. She has also suggested that it would be in her best interest for the appellant to receive a lesser sentence. Finally, the psychological evidence in the case has indicated that the appellant's behavior on the night of the crime charged was aberrant and that the appellant has demonstrated a low risk of repeating it. The psychological evidence also has indicated that the longer the appellant remains in prison, the less he will be able to engage in socially acceptable behavior.
On the wanton endangerment charge, which involved actual acts of violence against Ms. Franks, the appellant was sentenced to five years in the State Penitentiary, as provided by W. Va. Code 61-7-12. On the other hand, for the kidnaping, the charge in issue in the present appeal, the appellant was sentenced to the maximum 30 years in the State Penitentiary allowable under W. Va. Code 61-2-14a(a)(4). (See footnote 1) Rather plainly, the acts of violence harmed Ms. Franks more seriously than the kidnaping, and it appears that the kidnaping was ancillary to the acts of violence, rather than an end in itself.
Under the overall circumstances, this Court believes that the 30-year sentence
for kidnaping imposed upon the appellant does shock the conscience and is constitutionally
impermissible under State v. Cooper, id. The Court also believes that the ten-year minimum
sentence for kidnaping as set forth in W. Va. Code 61-2-14a(a)(4) should have been imposed,
rather than the 30-year sentence imposed by the circuit court.
For the reasons stated, the judgment
of the Circuit Court of Kanawha County is reversed insofar as it relates to the
appellant's kidnaping sentence, and this case is
remanded with directions that the appellant be sentenced to 10 years in the State
Penitentiary, to run concurrently with the wanton endangerment sentence, on the