State of West Virginia v. Elbyheine Bond ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia, FILED
Plaintiff Below, Respondent September 4, 2020
EDYTHE NASH GAISER, CLERK
vs) No. 19-0498 (Fayette County 18-F-170) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Elbyheine Bond,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Elbyheine Bond, by counsel James Adkins, appeals the May 3, 2019, order of
the Circuit Court of Fayette County that sentenced him to consecutive sentences of two to ten years
in prison for the felony offense of delivery of methamphetamine, pursuant to West Virginia Code
§ 60A-4-408(a),1 and to a determinate period of five years for the felony offense of possession of
a firearm by a convicted felon. The State of West Virginia, by counsel Karen Villanueva-
Matkovich, filed a summary response in support of the circuit court’s order.
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 order of the circuit court is appropriate under Rule 21 of
the Rules of Appellate Procedure.
In September of 2018, petitioner was indicted by a Fayette County Grand Jury on seven
felony counts: (1) conspiracy to deliver methamphetamine,2 in violation of West Virginia Code §
1
West Virginia Code § 60A-4-408(a) provides:
(a) Any person convicted of a second or subsequent offense under this chapter may
be imprisoned for a term up to twice the term otherwise authorized, fined an amount
up to twice that otherwise authorized, or both. When a term of imprisonment is
doubled under section 406, such term of imprisonment shall not be further increased
for such offense under this subsection (a), even though such term of imprisonment
is for a second or subsequent offense.
2
Petitioner’s alleged co-conspirator was his then-girlfriend, who was also named in the
indictment.
1
61-10-31; (2) delivery of a controlled substance (methamphetamine), in violation of West Virginia
Code § 60A-4-401; (3) conspiracy to possess cocaine, in violation of West Virginia Code § 61-10-
31; (4) possession of a controlled substance with the intent to deliver (cocaine), in violation of
West Virginia Code § 60A-4-401; (5) conspiracy to possess methamphetamine, in violation of
West Virginia Code § 61-10-31; (6) possession of a controlled substance with the intent to deliver
(methamphetamine), in violation of West Virginia Code § 60A-4-401; and (7) possession of a
firearm by a convicted felon, petitioner having been convicted in North Carolina in 1990 of two
counts of possession with intent to sell and deliver cocaine, and two counts of “sale of cocaine,”
in violation of West Virginia Code § 61-7-7.3
On March 15, 2019, petitioner pled guilty to one count of delivery of methamphetamine,
as contained in Count Two of the indictment, and one count of possession of a firearm by a
convicted felon, as set forth in Count Seven. In exchange for petitioner’s plea, the State agreed to
dismiss the remaining charges. Finding that petitioner knowingly, voluntarily, and intelligently
waived his constitutional rights and that his guilty plea was voluntarily made, the circuit court
accepted petitioner’s plea.
At the April 30, 2019, sentencing hearing, petitioner’s counsel explained that petitioner’s
prior felony convictions occurred when he was much younger; that he maintains a home with his
girlfriend and her two children; that, at the time of the hearing, he was employed at a construction
company; and that he has a valid driver’s license. Petitioner’s counsel further noted that, at the
time the crimes herein were committed, petitioner had been “laid off from work and didn’t want
to face getting his vehicle repossessed, didn’t want to face getting evicted[,] and made an
unfortunate choice to sell methamphetamine.” Further, petitioner’s counsel argued that, while out
on bond, “[t]here’s no indication that he’s – other than one traffic ticket that he’s got into any other
trouble since this case has been pending.” Petitioner requested probation.
In determining sentencing, the circuit court explained that while it took into account
petitioner’s age (forty-seven years old), the fact that he obtained his GED while previously
incarcerated and is currently employed, it also considered the fact that he sold a confidential
informant $375 worth of methamphetamine, which “wasn’t a small deal. It was a pretty big deal
of methamphetamine.” The circuit court further noted that petitioner’s “criminal history is not
good,” and that he
[h]as very little substance abuse history. Denies all other substance abuse.
So, it appears that the defendant is a good business man. A good business
man doesn’t use the product he is selling. It is too valuable for him to be using
personally. So, he’s not a drug abuser or drug user, he’s a drug dealer. . . . He admits
3
In addition to these past crimes, petitioner was also convicted of larceny in 1998; assault
in 1999, 2000, 2004, and 2006; “communicating threats” in 2004; possession of drug paraphernalia
in 2007; “prohibited possession” in 2007; “no seatbelt” in 2017; domestic battery in 2017; and
speeding in 2018.
2
that he wasn’t selling to support his own habit. He was selling for a profit, make a
profit off of it. . . .
So, all that being said the defendant’s application for probation is hereby
denied. To place him on probation at this point, with his extensive criminal history
and the fact that he is a confirmed drug dealer would unduly depreciate the
seriousness of these offenses.
The circuit court sentenced petitioner to two to ten years in prison for delivery of
methamphetamine, as doubled by the enhanced penalty authorized by West Virginia Code §60A-
4-408(a), and further sentenced him to a determinate period of five years for possession of a
firearm by a convicted felon. The court ordered the sentences to run consecutively. Petitioner now
appeals his sentence, which was memorialized in an order entered on May 3, 2019.
On appeal, petitioner argues that, in determining sentencing, the circuit court failed to
adequately consider petitioner’s “positive attributes,” as well as his age at the time of his prior
felony convictions (eighteen and twenty-seven years old, respectively), favorable post-arrest
conduct, and self-professed potential for rehabilitation. See State v. Cooper, 172 W. Va. 266, 304
S.E.2d 851 (1983). See also Syl. Pt. 6, State v. Booth, 224 W. Va. 307, 685 S.E.2d 701(2009).Typically, “[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). See Syl Pt. 1, in part, State v. Lucas, 201 W. Va. 271, 496
S.E.2d 221 (1997) (“The Supreme Court of Appeals reviews sentencing orders . . . under a
deferential abuse of discretion standard, unless the order violates statutory or constitutional
commands.”). Petitioner does not dispute that his sentence is within statutory limits, nor does he
allege that his sentence was based upon some impermissible factor. Thus, outside the context of
petitioner’s constitutional arguments, his sentence is not reviewable by this Court. See State v.
Slater, 222 W. Va. 499, 507, 665 S.E.2d 674, 682 (2008) (finding that petitioner’s sentence is not
subject to appellate review “because the sentence imposed for each conviction is within the
statutory limit and [petitioner] has identified no impermissible factor upon which his sentence is
based.”).
Here, petitioner argues that his sentence violates the principle of proportionality as set forth
in Article III, Section 5 of the West Virginia Constitution: “Penalties shall be proportioned to the
character and degree of the offence.” We have instructed 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.” Syl. Pt. 4, Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d
205 (1981). Insofar as the crimes for which petitioner was sentenced have fixed statutory
maximums, see W. Va. Code § 60A-4-401 (providing for a prison sentence of one to fifteen years
for delivery of methamphetamine) and W.Va. Code § 61-7-7(b)(2) (providing for prison sentence
of “not more than five years” or a fine of not more than $5,000, or both, for felony possession of
a firearm), Wanstreet instructs that, ordinarily, such sentences are not appropriate for a
proportionality analysis. See State v. Allen, 208 W. Va. 144, 156, 539 S.E.2d 87, 99 (1999)
(declining to review under proportionality principles “[b]ecause this case involves neither the
possibility of unlimited sentences nor a life recidivist statute”); State v. Mullins, No. 17-0391, 2018
3
WL 2928096, at *5 (W. Va. June 11, 2018) (memorandum decision) (finding it “unnecessary to
address petitioner’s argument regarding the allegedly disproportionate nature of his [8 to 120
years] sentences, because the same are not subject to appellate review”); State v. Krise, No. 16-
0814, 2017 WL 2493288, at *3 (W. Va. June 9, 2017) (memorandum decision) (finding
“petitioner’s sentence [of 24 to 60 years] is not subject to challenge on appeal”); Robert J. M. v.
Ballard, No. 14-1315, 2016 WL 3369556, at *12 (W. Va. June 17, 2016) (memorandum decision)
(“declin[ing] to apply our proportionality standards in this case” because a sentence of 31 to 75
years was within statutory limits). Thus, pursuant to Wanstreet, petitioner’s sentence is not
appropriate for a proportionality analysis.
Finally, petitioner argues that West Virginia Code § 60A-4-408, although constitutional,
was applied in a manner that denied him due process of law under Article III, Section 10 of the
West Virginia Constitution.4 In support of this assignment of error, petitioner states that his prior
drug convictions occurred when he was much younger, that, presently, he is “drug free and
gainfully employed,” and that, “without the requirement of a special pleading [such as is required
in a recidivist proceeding] or exercise of prosecutorial discretion, in a multi[-]judge circuit, a
defendant’s outcome in cases were [the statute] can be applied, is largely a product of which judge
his case is assigned to.” Petitioner’s cursory argument does not include any legal authority or
substantive arguments in support thereof and, thus, fails to comport with the requirement that
“[t]he brief must contain an argument exhibiting clearly the points of fact and law presented, the
standard of review applicable, and citing the authorities relied on . . . .” W. Va. R. App. P. 10(c)(7).
See also State ex rel. Hatcher v. McBride, 221 W. Va. 760, 766, 656 S.E.2d 789, 795 (2007)
(cautioning that “[a] skeletal ‘argument,’ really nothing more than an assertion, does not preserve
a claim”). Consequently, we find this issue to be waived. See State v. LaRock, 196 W. Va. 294,
302, 470 S.E.2d 613, 621 (1996) (“Although we liberally construe briefs in determining issues
presented for review, issues which are . . . mentioned only in passing but are not supported with
pertinent authority . . . are not considered on appeal.” (citation omitted)).
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: September 4, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
4
In syllabus point 4 of State v. Rutherford, 223 W. Va. 1, 672 S.E.2d 137 (2008), this Court
held that “West Virginia Code § 60A-4-408 (1971), which permits sentencing enhancement for
certain repeat drug offenders based solely on the fact of a previous drug conviction, does not
violate the due process protections found in Article III, § 10 of the West Virginia Constitution.”
4