State of West Virginia v. Roger E. Harvey ( 2016 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia,
Plaintiff Below, Respondent FILED
May 23, 2016
vs) No. 15-0257 (Morgan County 14-F-54 and 15-F-27) RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Roger E. Harvey,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Roger E. Harvey, by counsel William T. Rice, appeals the Circuit Court of
Morgan County’s March 11, 2015, order sentencing him to consecutive terms of incarceration of
one to fifteen years for one count of delivery of a controlled substance and one to five years for
one count of failure to appear. The State, by counsel David A. Stackpole, filed a response. On
appeal, petitioner argues that the circuit court erred in imposing consecutive sentences.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
In September of 2014, petitioner was indicted on three counts of delivery of a controlled
substance – heroin. However, in January of 2015, petitioner pled guilty to one count of delivery
of a controlled substance and one count of failure to appear that would be filed by information;
the remaining charges were dismissed. Petitioner’s plea agreement specifically provided for
consecutive sentencing, and the circuit court questioned petitioner regarding his understanding
that the sentences would run consecutively or “one after the other.” In March of 2015, following
his guilty plea, the circuit court sentenced petitioner to a term of incarceration of one to fifteen
years for the one count of delivery of a controlled substance and to one term of one to five years
for the count of failure to appear. All sentences were ordered to run consecutively. It is from this
March 11, 2015, order that petitioner now appeals.
We have previously 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).” Syl. Pt. 3, State v.
Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010). We note that petitioner’s sentences for his
crimes are within the applicable statutory limitations. Specifically, West Virginia Code §60A-4­
401(a)(i) states that if
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[a]ny person who violates this subsection with respect to [a] controlled substance
classified in Schedule I or II, which is a narcotic drug, is guilty of a felony and,
upon conviction, may be imprisoned in the state correctional facility for not less
than one year nor more than fifteen years, or fined not more than twenty-five
thousand dollars, or both.
Additionally, West Virginia Code § 62-1C-17b states that
[i]f any such person was admitted to bail or released after being arrested for,
charged or convicted of a felony and shall thereafter be convicted for a violation
of the provisions of subsection (a) of this section [criminalizing failure to appear],
such person shall be guilty of a felony and shall be fined not more than five
thousand dollars or imprisoned not less than one nor more than five years, or both
such fine and imprisonment.
As such, it is clear that petitioner was sentenced within the applicable statutory guidelines and
his sentence is not reviewable on appeal. This is especially true in light of the fact that petitioner
does not allege that the circuit court based its sentence on any impermissible factor. Instead,
petitioner argues that his sentence is excessive based upon his contention that the offenses were
non-violent drug offenses “with no victims.” The Court, however, notes that none of petitioner’s
contentions constitute an allegation that the circuit court based petitioner’s sentence on an
impermissible factor. As such, we reiterate that petitioner’s sentence is, therefore, not reviewable
on appeal.
Additionally, petitioner’s contention that there is no evidence to support the imposition of
consecutive sentences is without merit. We have long held that “[w]hen a defendant has been
convicted of two separate crimes, before sentence is pronounced for either, the trial court may, in
its discretion, provide that the sentences run concurrently, and unless it does so provide, the
sentences will run consecutively.” Syl. Pt. 3, Keith v. Leverette, 163 W.Va. 98, 254 S.E.2d 700(1979). As such, the circuit court was well within its discretion to order that petitioner’s
sentences be served consecutively. Further, it is clear from the record that the plea agreement
expressly provided that, upon his acceptance of the plea, petitioner agreed to serve the statutory
sentences consecutively. Thus, we find no error in the circuit court’s order running petitioner’s
statutory sentences consecutively.
For the foregoing reasons, the circuit court’s March 11, 2015, sentencing order is hereby
affirmed.
Affirmed.
ISSUED: May 23, 2016
CONCURRED IN BY:
Chief Justice Menis E. Ketchum
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Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II
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