Defendant Below, Appellant.
Appeal from the Circuit Court of Ohio County
Honorable James P. Mazzone, Judge
Criminal Action No. 07-F-51
Submitted: October 6, 2009
Filed: October 29, 2009
Scott R. Smith
Assistant Public Defender
Ohio County Prosecuting
First Judicial Circuit Public Defender Corp. Attorney
Wheeling, West Virginia
Stephen L. Vogrin
Attorney for the Appellant,
Assistant Prosecuting Attorney
Wheeling, West Virginia
Attorneys for the Appellee,
State of West Virginia
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. 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
2. 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).
3. While our constitutional proportionality standards theoretically can
apply to any criminal sentence, they are basically applicable to those sentences where there
is either no fixed maximum set by statute or where there is a life recidivist sentence.
Syllabus point 4, Wanstreet v. Bordenkircher
, 166 W. Va. 523, 276 S.E.2d 205 (1981).
4. Article III, Section 5 of the West Virginia Constitution, which contains
the cruel and unusual punishment counterpart to the Eighth Amendment of the United States
Constitution, has an express statement of the proportionality principle: 'Penalties shall be
proportioned to the character and degree of the offence.' Syllabus point 8, State v. Vance
164 W. Va. 216, 262 S.E.2d 423 (1980).
5. 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).
6. Disparate sentences for codefendants are not per se unconstitutional.
Courts consider many factors such as each codefendant's respective involvement in the
criminal transaction (including who was the prime mover), prior records, rehabilitative
potential (including post-arrest conduct, age and maturity), and lack of remorse. If
codefendants are similarly situated, some courts will reverse on disparity of sentence alone.
Syllabus point 2, State v. Buck
, 173 W. Va. 243, 314 S.E.2d 406 (1984).
The defendant below and appellant herein, Richard Ricky Booth (hereinafter
Mr. Booth), appeals from an order entered May 23, 2008, by the Circuit Court of Ohio
County. By that order, the circuit court sentenced Mr. Booth to a period of eighty years in
the penitentiary following Mr. Booth's guilty plea to the felony offense of first degree
robbery. On appeal to this Court, Mr. Booth argues that the sentence violates both state and
federal constitutional law because the time period is impermissibly harsh and
disproportionate to the crime committed. Based upon the parties' arguments, the record
designated for our consideration, and the pertinent authorities, we affirm the sentencing
decision by the circuit court.
FACTUAL AND PROCEDURAL HISTORY
The relevant facts of the case are largely undisputed. On March 21, 2007, Mr.
Booth, along with three other people,
(See footnote 1)
drove to Wheeling, West Virginia. Mr. Booth was
twenty years of age at the time. Mr. Booth asserts that the trip was for the purpose of looking
for employment. However, Mr. Booth concedes that he had ingested approximately twenty-
five Xanax pills that morning and that he was also in an altered state from smoking
marijuana. Upon arriving in Wheeling, the foursome embarked in a plan to obtain money
so that they could purchase more illegal drugs. They attempted to sell fake crack; however,
they were unable to find anyone to buy the fake drugs. The group then decided that they
would steal money to support their drug needs.
Ms. Linda Carney, an elderly woman walking with a cane, was spotted. Mr.
Booth followed Ms. Carney to her apartment and attempted to gain access to her apartment
on at least three separate occasions under the auspices of needing help with a car repair,
needing to use the telephone, and needing a drink of water. Ms. Carney was suspicious,
however, and denied him entry.
(See footnote 2)
Mr. Booth returned to the group in the car. They proceeded
to drive the streets of Wheeling until Ms. Wood spotted Mrs. Doris Schafer, along with her
husband, on the street outside of a restaurant. Upon spotting Mrs. Schafer and her husband
on the sidewalk, Mr. Booth and the juvenile male exited the car and followed Mrs. Schafer
down the street. Mr. Booth approached Mrs. Schafer from behind and grabbed her purse in
an attempt to pull it off of her shoulder. In the process, Mrs. Schafer fell to the ground
screaming as she clutched her purse. Mr. Booth released the purse, and both he and the
juvenile male ran back to the vehicle.
An onlooker witnessed the event and provided the authorities with the car's
license plate number, which resulted in all of the occupants' arrest. Mr. Booth was charged
with two counts of attempted first degree robbery, assault in the commission of a felony, and
conspiracy to commit robbery. On June 8, 2007, Mr. Booth entered into a plea agreement
with the State wherein he agreed to plead guilty to one count of first degree robbery
(See footnote 3)
exchange for the dismissal of the remaining counts. In the plea agreement, the State agreed
not to seek a longer sentence than what would be recommended in the pre-sentence
investigation report prepared by the probation officer. The lower court accepted the guilty
plea and ordered a pre-sentence investigation report.
In the pre-sentence investigation report, the probation officer recommended a
sentence of eighty years. Further, the probation officer discouraged the use of alternative
sentencing practices such as home incarceration or probation due to the violent and serious
nature of this particular crime.
(See footnote 4)
The pre-sentence investigation report justified the length of
the recommended sentence by analyzing the specifics of this case. First, the report reasoned
that Mr. Booth's crime essentially had two victims: Mrs. Schafer and her ill husband. Mrs.
Schafer, prior to the crime, provided the primary care for her infirm husband, and he was
present at the scene of the crime but was unable to aid his wife due to his poor physical
Second, the report recognized that Mrs. Schafer was seriously injured as a
result of the crime. At the time of the incident, Mrs. Schafer was eighty-two years old and
in good health. She was the primary caregiver for her infirm husband who was eighty-seven
years of age at the time of the crime. Mrs. Schafer was also an active walker and frequently
babysat her nine-year-old grandson. As a result of this crime, she has necessitated two
surgeries, which included one to place pins in her hip and a second emergency surgery to
repair her femur.
(See footnote 5)
Prior to this crime, Mrs. Schafer was completely independent and able to
ambulate without assistance. Since the crime and the resultant surgeries, Mrs. Schafer can
no longer walk without the aid of a walker, and must hop on one leg even with the use of a
walker, and she can no longer care for her husband or her grandson. Mrs. Schafer has not
yet been able to return to her home from rehabilitation due to the accommodations that her
home will now require to allow her access therein. The victim impact statement prepared by
Mrs. Schafer and presented to the circuit court during the sentencing hearing explained as
This has turned my life completely upside-down. I went
from being an active helper for my husband (who has great
difficulty walking as well as standing for any length of time) and
an always available baby-sitter for my 9-yr. old grandson and
enjoying many activities including going to the Wellness Center
and walking anywhere I wanted, into a helpless person who
can't even go to the bathroom without assistance. This has been
a devastating blow to me and my family. We are faced with
many expensive co-pays on our insurance coverage, making
arrangements for help at home, and some renovations to our
house to make it suitable for my return there. Also, I am facing
an uncertain future in many ways. I suffer from anxiety for
which I should be receiving treatment but unable to attend
because of my confinement. I have literally been robbed of a
large chunk of my remaining life.
Third, the probation officer's recommended sentence was further bolstered by
Mr. Booth's prior criminal record. The nature of the current crime was violent, and his
record shows a history of numerous felony and misdemeanor offenses. In 2004, Mr. Booth
entered a no contest plea to a charge of petit larceny and was sentenced to thirty days in jail,
suspended for six months of probation. In Ohio in 2005, Mr. Booth entered a guilty plea to
misdemeanor theft and was sentenced to ninety days in jail with eighty-eight days suspended
for two years of unsupervised probation. Mr. Booth entered into a plea agreement in 2006,
wherein he pled guilty to two felony offenses of petit larceny in exchange for dismissal of
three counts of entering without breaking into an automobile. He was sentenced to a one-
year sentence for each count, to be served concurrently, and was released from the
penitentiary after discharging his sentence. One month after his release, he was charged with
the felony offense of delivery of a controlled substance within one thousand feet of a school.
(See footnote 6)
Mr. Booth was on bond for this alleged offense at the time of the commission of the crime
currently before this Court for review. The following month, in early 2006, Mr. Booth was
charged with intimidation of a witness, which was dismissed a month later. Subsequently,
in March 2006, Mr. Booth entered a guilty plea to driving with no operator's license and no
insurance. The charges of failure to report an accident and failure to drive on the roadway
were dismissed. He was sentenced to fifteen days in jail with credit for time served.
Fourth, the pre-sentence investigation report also relied on the deliberate
manner in which this crime was committed as justification for the institution of a harsher
penalty. The group was actively seeking to prey on an elderly person and sought their
victims based on their classification within this vulnerable class of people. Mr. Booth
attempted to rob one elderly woman and when that attempt was thwarted, the group sought
and found another elderly target in Mrs. Schafer.
Moreover, the fifth point relied on in the report of the probation officer
contended that Mr. Booth had already been shown leniency in the lower court's acceptance
of the plea agreement, which allowed the State to dismiss three counts pending against him.
The final point set forth in the report reasoned that Mr. Booth's overall behavior was a
significant factor in the recommended sentence. Mr. Booth's young age and the extensive
criminal history he had already accumulated within that time worked against him. Further,
he refused to find regular employment and, instead, chose to use illegal drugs every day. He
committed crimes against the public to support his drug habit and had never sought treatment
for his addiction. Based on all of the aforementioned reasons, the probation officer
recommended a sentence of eighty years, explaining that Mr. Booth will be eligible for
parole after serving one-fourth of the sentence, or twenty years, and that his sentence can be
discharged after forty years.
On August 2, 2007, a sentencing hearing was held. At the sentencing hearing,
Mrs. Schafer's orthopedic surgeon testified to a reasonable degree of medical certainty that
the cause of the first fracture was directly related to the fall [Mrs. Schafer] sustained in the
assault. Further, the surgeon opined that the cause of, or need for, the second surgery was
directly related to the original injury. The doctor was asked [s]o it's your opinion to a
reasonable degree of certainty that all of the trauma and surgery that she had to have done
on her hip and femur were all related to the robbery as to what Mr. Booth was convicted of?
The doctor responded [a]bsolutely, yes, sir.
(See footnote 7)
Counsel for Mr. Booth requested that the
statutory minimum sentence of ten years be imposed, and moved the court to permit Mr.
Booth to serve his time as part of the youthful offender program.
As a result of the facts of the case and the testimony presented at the sentencing
hearing, the lower court stated that
[t]here's nothing about the facts of this case that warrant
leniency. They're disturbing. They're serious. And I think to
impose anything but a stiff sentence would send the wrong
message and would severely diminish the seriousness of Mr.
Booth's actions that day. Accordingly, I'm going to adopt the
recommendation of the probation department and impose a
sentence of 80 years in the West Virginia State Penitentiary.
Following the ruling from the bench, the lower court memorialized its rulings in an order
entered December 3, 2007. Mr. Booth was re-sentenced on May, 23, 2008, for appeal
purposes. In that order, the trial court's reasons were set forth as follows:
, the Court, based upon the representation
of counsel and the record herein does accordingly
that the Defendant is not a good candidate for
probation or alternative sentence as this was an extremely
violent offense and the Defendant has a prior felony conviction.
The Court further
that the Defendant is [a] repeat violent offender
who was on bond for another felony offense when the
Defendant committed the First Degree Robbery of the victim in
this matter. The Court further
that the impact that this crime had on the victim
is substantial. The Court further
that the Defendant needs to be incapacitated for
a substantial period of time to protect society.
Therefore, Mr. Booth was sentenced to eighty years in the penitentiary, with credit for time
served. Mr. Booth now appeals to this Court.
STANDARD OF REVIEW
On appeal to this Court, Mr. Booth argues that the length of his sentence
imposed by the circuit court violates both state and federal constitutional law because the
time period is impermissibly harsh and disproportionate to the crime committed. This Court
has previously explained our standard of reviewing sentencing orders as follows: The
Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse of
discretion standard, unless the order violates statutory or constitutional commands. Syllabus
pt. 1, in part, State v. Lucas
, 201 W. Va. 271, 496 S.E.2d 221 (1997). Mindful of this
applicable standard, we will consider the arguments set forth by the parties.
On appeal to this Court, Mr. Booth argues that the sentence of eighty years
violates both state and federal constitutional law because the time period is impermissibly
harsh and disproportionate to the underlying facts.
(See footnote 8)
He avers that the sentence imposed
shocks the conscience and offends fundamental notions of human dignity. To the contrary,
the State contends that Mr. Booth's sentence, in light of the facts, does not shock the
conscience. The State relies on Mr. Booth's previous criminal record, the manner in which
he preyed upon a vulnerable class of society, and the violent nature of the current crime and
its effect on the victim and her family.
At the outset, we note the general rule 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). In the present case, the record does not suggest, and Mr. Booth does not argue, that
the trial court relied on any impermissible factors in arriving at his sentence. Instead, Mr.
Booth maintains that his sentence both shocks the conscience and is disproportionate to the
In the current case before this Court, the relevant charging statute sets no
maximum sentence that the sentencing court must use as a ceiling in imposing a sentence for
the crime of first degree robbery at issue herein.
(See footnote 9)
This Court has previously entertained
claims that sentences violate state and federal constitutional provisions against cruel and
unusual punishment which provisions prohibit a sentence that is disproportionate to the
nature of the offense. These claims are generally limited to sentences that have no maximum
limit provided by statute, such as is the case with the relevant statute in the present appeal.
In Syllabus point 4 of Wanstreet v. Bordenkircher
, 166 W. Va. 523, 276 S.E.2d 205 (1981),
this Court stated: While our constitutional proportionality standards theoretically can apply
to any criminal sentence, they are basically applicable to those sentences where there is either
no fixed maximum set by statute or where there is a life recidivist sentence. In Syllabus
point 8 of State v. Vance
, 164 W. Va. 216, 262 S.E.2d 423 (1980), we recognized: Article
III, Section 5 of the West Virginia Constitution, which contains the cruel and unusual
punishment counterpart to the Eighth Amendment of the United States Constitution, has an
express statement of the proportionality principle: 'Penalties shall be proportioned to the
character and degree of the offence.' Further, in Syllabus point five of State v. Cooper
W. Va. 266, 304 S.E.2d 851 (1983), we explained:
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.
The test set forth in Cooper
was further explained as follows:
The first [test] is subjective and asks whether the
sentence for the particular crime shocks the conscience of the
court and society. If a sentence is so offensive that it cannot
pass a societal and judicial sense of justice, the inquiry need not
proceed further. When it cannot be said that a sentence shocks
the conscience, a disproportionality challenge is guided by the
objective test we spelled out in Syllabus Point 5 of Wanstreet v.
, 166 W. Va. 523, 276 S.E.2d 205 (1981):
In determining whether a given sentence
violates the proportionality principle found in
Article III, Section 5 of the West Virginia
Constitution, consideration is given to the nature
of the offense, the legislative purpose behind the
punishment, a comparison of the punishment with
what would be inflicted in other jurisdictions, and
a comparison with other offenses within the same
, 172 W. Va. at 272, 304 S.E.2d at 857. As previously described by this Court, the
second test charges that a disproportionality challenge should be resolved by more
objective factors which include the consideration of the nature of the offense, the defendant's
past criminal history, and his proclivity to engage in violent acts. State v. Broughton
W. Va. 281, 292, 470 S.E.2d 413, 424 (1996) (quoting State v. Ross
, 184 W. Va. 579, 581-
82, 402 S.E.2d 248, 250-51 (1990)).
Mr. Booth maintains that the sentence imposed upon him shocks the
conscience, is excessive and disproportionate to the degree and character of his offense, and
is disproportionate to the sentences imposed upon other individuals involved in this same
crime. We disagree.
First, the eighty-year sentence imposed on Mr. Booth does not shock the
conscience of this Court or society. Mr. Booth's crime was one of first degree robbery,
wherein he and his co-defendants actively sought out one of the most vulnerable classes of
society: the elderly. The purpose for robbing Mrs. Schafer was to steal money to advance
yet another illegal act: the purchase and consumption of illegal drugs. In the commission of
this crime, Mr. Booth's acts directly caused the victim, Mrs. Schafer, an elderly woman who
was eighty-two years of age but who was otherwise healthy and independently mobile, to fall
and break her hip. This act resulted in three surgeries to Mrs. Schafer and the premature loss
of an independent life. This crime severely diminished the expectations of Mrs. Schafer for
living the remainder of her life at home due to her inability to access her home in its current
state as a result of her restricted mobility. Further, Mrs. Schafer's family also was negatively
impacted in that she can no longer provide the care needed by her infirm husband and she
can no longer babysit her grandson. Due to Mr. Booth's decision to prey on the elderly,
coupled with the significant negative impact that his actions will continue to have on the
victim and her family, the eighty-year sentence does not shock the conscience.
Second, the eighty-year sentence is not disproportionate when consideration
is made of the nature of the offense, Mr. Booth's significant past criminal history, and the
violence involved in this particular crime. As explained previously in this opinion, the nature
of the current offense was violent and resulted in a substantial diminishment in the victim's
ability to enjoy life and to participate to any degree in the activities of her pre-injury life.
Further, Mr. Booth, at his young age, had already accumulated an extensive criminal history.
While Mr. Booth argues that he was incorrectly labeled as a violent repeat offender, we
find this argument to be without merit.
(See footnote 10)
Moreover, we find the sentence imposed to be in
line with other sentences upheld by this Court.
(See footnote 11)
Mr. Booth's final argument is that his sentence is disproportionate to the
sentences received by his co-defendants.
(See footnote 12)
In Syllabus point two of State v. Buck
W. Va. 243, 314 S.E.2d 406 (1984), we stated:
Disparate sentences for codefendants are not per se
unconstitutional. Courts consider many factors such as each
codefendant's respective involvement in the criminal transaction
(including who was the prime mover), prior records,
rehabilitative potential (including post-arrest conduct, age and
maturity), and lack of remorse. If codefendants are similarly
situated, some courts will reverse on disparity of sentence alone.
Applying this principle to the present case, we do not find any error in the fact that Mr. Booth
received a harsher sentence than the other defendants. Mr. Booth was the prime mover in
that he was the one who actively pursued the plan to prey on the elderly to steal money. Mr.
Booth also was the one who attempted to obtain access, on at least three occasions, to Ms.
Carney's home. Moreover, while both he and the juvenile male followed the victim, Mrs.
Schafer, on the street, Mr. Booth was the one who pulled on her purse causing her to fall and
resulting in her significant injuries. All of these actions took place while Mr. Booth was free
on bond for the alleged commission of another felony.
(See footnote 13)
His post-arrest conduct for his
previous charges clearly evidences a lack of a desire to change or receive help. Accordingly,
we do not find that his sentence is disproportionate to the sentences received by his
codefendants. There was no abuse of discretion by the circuit court in the imposition of Mr.
Booth's sentence; therefore, the sentence will not be disturbed by this Court.
For the foregoing reasons, the May 23, 2008, order by the Circuit Court of
Ohio County, sentencing Mr. Booth to eighty years in the state penitentiary is hereby