____________
No. 31231
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STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
v.
JOSEPH L. WATKINS,
Defendant Below, Appellant
_____________________________________________________
Appeal from the Circuit Court of Tucker County
Honorable Andrew N. Frye, Judge
Criminal Action No. 01-F-7
AFFIRMED
_____________________________________________________
Submitted: November 18, 2003
Filed: December 3, 2003
Max H. White, Esq.
Keyser, West Virginia
Attorney for Appellant
The Opinion of the Court was delivered PER CURIAM.
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 (1997).
2. “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).
3. “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 offense.'” Syllabus Point 8, State v. Vance,
164 W.Va. 216, 262 S.E.2d 423 (1980).
4. “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).
5. “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:
Joseph L. Watkins appeals the sentence imposed upon him by the Tucker
County Circuit Court on March 29, 2002, following a March 22, 2002 guilty plea for petit
larceny. The twenty-four-year-old appellant was sentenced to the county jail for one year and
fined $2,500. The codefendant, Michael Maxwell, was sentenced to ninety hours of
community service plus a fine of $300 following his March 22, 2002 guilty plea to the
offense of stealing a dog. The issue on appeal is whether the appellant's sentence is
disproportionate to the crime he committed and disparate to the sentence imposed on his
codefendant. Upon our full review of these assignments of error against the record in this
case, we find no error and accordingly, affirm the appellant's sentence.
On June 5, 2001, a Tucker County Grand Jury returned an indictment charging
both the appellant, Joseph L. Watkins, and his codefendant, Michael L. Maxwell, with one
count of grand larceny for stealing four hunting dogs and hunting paraphernalia including
radio-tracking dog collars on or about December 29, 2000. The approximate total value of
the dogs and the collars was $2,500; however, since the dogs were not registered with the
county assessor's office nor were taxes paid on the dogs, the State agreed that they did not
have a substantial monetary value.
(See footnote 1)
As such, the value for the dogs and the radio tracking
collars was below $1,000, leading to the plea by the appellant to the lesser offense of petit
larceny.
The appellant and the codefendant confessed that they captured four dogs from the Horseshoe Run area in Tucker County and took them to their homes in neighboring Barbour County. The four dogs initially were kept at the codefendant's home and later taken to the appellant's home. Soon after the dogs were stolen, their identification tags as well as their radio tracking collars were removed by the appellant and the codefendant. The appellant disposed of the radio tracking collars near his home and later led Conservation Officer Brian Nuzum to that location where the collars were then recovered.
During a January 23, 2001, voluntary statement provided to Conservation
Officers John Ozalas and Brian Nuzum, the appellant claims that he returned all four dogs
“a mile or two up the road” from the owners' residence. Conversely, the owners believe the
dogs were dropped off “six or seven miles” from their home and added that they, along with
their sons, other family members, and community friends searched in sleet and snow storms
in hopes of finding their dogs. Mr. and Ms. Sisler both addressed the circuit court and
expressed their feelings that the appellant should not be granted mercy with regard to his
sentencing. Ms. Sisler, added, “he stole our dog, he stole the tracking collars and it was in
December of 2000 and here we are in 2002 and we still are searching for our dog.” Ms.
Sisler further argued that it was her belief that the dogs would have never been returned “had
[the appellant] not found out that we knew that he had them [and that he was] trying to sell
them.” Only three of the four dogs made it back to the owners' home, while the fourth dog,
the mother and most valuable of the four dogs, has never been located. On March 29, 2002,
the appellant was sentenced to the county jail for one year and fined $2,500.
The appellant pled guilty to petit larceny as codified by West Virginia Code §
61-3-13 (1994) which provides:
(b) If a person commits simple larceny of goods or
chattels of the value of less than one thousand dollars, such
person is guilty of a misdemeanor, designated petit larceny, and,
upon conviction thereof, shall be confined in jail for a term not
to exceed one year or fined not to exceed two thousand five
hundred dollars, or both, in the discretion of the court.
Conversely, the codefendant pled guilty to stealing a dog in accordance with West Virginia
Code § 19-20-12 (1984) which states:
(b) Any person who shall intentionally and unlawfully
steal a dog, cat, other animal or reptile as specified in subsection
(a) of this section shall be guilty of a misdemeanor and, upon
conviction thereof, shall be ordered to provide public service for
not less than thirty nor more than ninety days or fined not less
than three hundred nor more than five hundred dollars, or both.
We have held that:
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).
In State ex rel. Appleby v. Recht, ___ W.Va. ___, ___, 583 S.E.2d 800, 816 (2002) (per curiam), cert. denied, 71 U.S.L.W. 3790 (U.S. June 23, 2003) (No. 02-10323), the appellant in that case challenged our recidivist statute claiming that “in some instances this Court has affirmed recidivist sentences for some defendants, but has reversed the recidivist sentences for others, even though these defendants were convicted of the same offenses or had the same predicate felonies.” We have explained that even assuming the accuracy of such an assertion that West Virginia's
sentencing scheme might indeed permit another defendant guilty
of the same crime to receive a lesser sentence .... that is no
reason for altering [his] punishment or declaring the law
unconstitutional. Judicial discretion naturally leads to
discrepancies in sentencing, as [he] complains. But even wide
sentencing discretion in the abstract is not a violation of due
process or equal protection. [T]he issue is the appropriateness
of the sentence given the defendant's crime: 'Discretion, even
if it ends in grossly unequal treatment according to culpability,
does not entitle a guilty defendant to avoid a sentence
appropriate to his own crime.'
Recht, ___ W.Va. at ___, 583 S.E.2d at 816, quoting Holman v. Page, 95 F.3d 481, 486 (7th
Cir.1996) (citation omitted).
Having reviewed the record, we do not believe that the appellant and the
codefendant were similarly situated. Unlike the appellant, the codefendant pled guilty to the
offense of stealing a dog carrying a penalty in which a convicted defendant “shall be ordered
to provide public service for not less than thirty nor more than ninety days or fined not less
than three hundred nor more than five hundred dollars, or both.” The appellant pled guilty
to petit larceny, and, “upon conviction thereof, shall be confined in jail for a term not to
exceed one year or fined not to exceed two thousand five hundred dollars, or both, in the
discretion of the court.” See e.g. People v. Eubanks, 283 Ill.App.3d 12, 25, 669 N.E.2d 678,
686 (1996) (“defendant and [the codefendant] are not similarly situated because they were
convicted of different crimes”). The appellant was the last person to have custody of the
dogs and one of the dogs has never been found. Moreover, he released the dogs along the
road in the middle of a snow storm instead of taking them directly to the owners' home.
We believe that the appellant's claim of disparate sentencing is untenable given the guilty pleas and subsequent convictions to two separate and distinct offenses by the appellant and the codefendant; it is clear that the appellant and the codefendant were not similarly situated; therefore, we find no merit to this assignment of error.
In Syllabus Point 8 of State v. Vance, 164 W.Va. 216, 262 S.E.2d 423 (1980),
we explained:
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 offense.'
Historically, this Court has declined to intervene in cases where judicially-
imposed sentences are within legislatively prescribed limits. State v. Cooper, 172 W.Va.
266, 271, 304 S.E.2d 851, 855 (1983). In fact, we have held that “[w]hile 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). This Court explained in Wanstreet that:
'[T]he robbery by violence statute is one of the few criminal
statutes in our jurisdiction that enables the court to set a
determinate sentence without reference to any statutory
maximum limit. With the exception of the life recidivist statute
discussed in State v. Vance, [164 W.Va. 216, 262 S.E.2d 423
(1980) ], we do not believe that the disproportionality principle
can have any significant application other than to this type of
sentencing statute.'
166 W.Va. at 531-32, 276 S.E.2d at 211, quoting State v. Houston, 166 W.Va. 202, 209, 273
S.E.2d 375, 379 (1980).
At
the time of sentencing, the circuit court appropriately took into consideration
the appellant's pre-sentence investigation report. The appellant did not
have a criminal history, however, one of the four stolen dogs was never found.
In addition, the circuit court considered the testimony of the owners' of
the stolen dogs who described the anguish of searching for them during snow
and sleet storms and how they were deeply
impacted by the loss of the mother dog, “which was not only a fine hunting dog, but also a
beloved pet and member of the family.” They further requested no leniency with regard to
sentencing for the appellant. The owners further declared that Marcy, the dog that was never
recovered, was the mother of the other three stolen dogs and that she would never have left
her pups during a snow storm. They stated that they believed the appellant either killed
Marcy or sold her.
Moreover, the appellant was initially indicted for grand larceny for stealing hunting dogs and hunting paraphernalia worth approximately $2,500. Eventually, however, the appellant entered into an agreement with the State whereby he pled guilty to the lesser- included offense of petit larceny. This agreement fully informed the appellant that any plea bargaining was “not binding upon the Court with respect to punishment and probation . . . [and that he] could be confined in the regional jail for a term not to exceed one year or fined not to exceed $2,500, or both in the discretion of the Court[.]” Thus, the appellant voluntarily and intentionally entered into the plea agreement with the State with full knowledge of the sentence he could receive. While it is possible that we may have sentenced the appellant to a lesser sentence had we sat as the trial court, this alone does not automatically lead to the conclusion that a lower court abused its discretion in sentencing. We held in State v. Allen, 208 W.Va. 144, 155, 539 S.E.2d 87, 98 (1999), that:
Typically, a grant of discretion to a lower court commands this
Court to extend substantial deference to such discretionary
decisions. Although this Court may not necessarily have
obtained the same result had we been presiding over a case
determined by a lower court, our mere disagreement with such
a ruling does not automatically lead to the conclusion that the
lower court abused its discretion.
With regard to the specific sentence imposed by the circuit court in Allen, we
further delineated:
With respect to the sentences imposed for Allen's
numerous misdemeanor convictions, we find that the trial court
properly sentenced the defendant in accordance with the
statutorily-prescribed punishments for such crimes. As for the
circuit court's decision to impose consecutive, rather than
concurrent, sentences, we likewise find no abuse of discretion.
At this juncture, however, we wish to emphasize that, while the
members of this Court, had we been sentencing Allen for his
numerous misdemeanor convictions, would not necessarily have
ordered his sentences to run consecutively, this disagreement,
standing alone, does not necessitate a reversal of the sentences
imposed by the trial court. Finding no impermissible factors
influenced the trial court's sentencing decision, we affirm the
lower court's ruling.
Allen, 208 W.Va. at 155, 539 S.E.2d at 98.
Our system of criminal jurisprudence views a trial court's discretion during the sentencing phase of a criminal proceeding as a critical component of the process. See State v. Head, 198 W.Va. 298, 306, 480 S.E.2d 507, 515 (1996) (Cleckley, J., concurring) (“Circuit court judges have a right to believe that so long as they have not violated a law or acted in a nefariously discriminatory way in imposing sentences, this Court will not sift through the nooks and crannies of their decisions determined on finding that which is not there.”).
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.” We have further 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.” Syllabus Point 4, State v.
Goodnight, 169 W. Va. 366, 287 S.E.2d 504 (1982).
In the instant case, the appellant's guilty plea and subsequent conviction to petit
larceny led to a sentence completely within the statutory guidelines. Moreover, the appellant
did not contend that the circuit court's sentencing was based upon any impermissible factors.
The appellant was the last one with possession of all four dogs and only three of the dogs
were ever found. In this instance, the circuit court did not violate the proportionality
principle and did not abuse its discretion. Therefore, we affirm the appellant's sentence.
Affirmed.