State of West Virginia v. Barbara D. Brellahan ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia,
Plaintiff Below, Respondent FILED
November 4, 2020
vs.) No. 19-0870 (Fayette County 19-F-75) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Barbara D. Brellahan,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Barbara D. Brellahan, by counsel James Adkins, appeals the Circuit Court of
Fayette County’s September 5, 2019, order sentencing her to an indeterminate term of one to
fifteen years of incarceration upon her conviction for possession with intent to deliver heroin.
Respondent State of West Virginia, by counsel Holly M. Flanigan, filed a summary response in
support of the circuit court’s order. On appeal, petitioner argues that the circuit court had a pre-
existing bias against her and erroneously considered impermissible sentencing factors.
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.
From May of 2018 through July of 2018, the West Virginia Drug Task Force and Drug
Enforcement Administration conducted an investigation of a heroin and methamphetamine
distribution organization involving petitioner’s son, Michael Brellahan. During the investigation,
Michael Brellahan placed numerous phone calls to purchase heroin from a supplier and then
arrived at a residence shortly after each call was made. On one occasion, Mr. Brellahan placed a
call for heroin and informed the supplier he was sending his mother, petitioner, to obtain the heroin
because he was on home incarceration. A short time later, petitioner was observed on surveillance
video arriving at the supplier’s residence. After leaving the residence, law enforcement stopped
petitioner and located eight grams of heroin in a coffee cup with a false bottom.
In May of 2019, petitioner was indicted by a Fayette County grand jury on one count of
conspiracy to deliver heroin and one count of possession with intent to deliver heroin. The parties
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entered into a plea agreement in July of 2019. Pursuant to the agreement, petitioner agreed to plead
guilty to one count of possession with intent to deliver heroin. In return, the State agreed to dismiss
the conspiracy charge against petitioner.
During the August of 2019 sentencing hearing, petitioner testified that she was “in this
situation because of my drug—my son’s drug uses. I did give into him,[sic] I was wrong and I
realize that I would’ve been contributing to his problem and others.” After her testimony,
petitioner’s counsel argued for probation, emphasizing petitioner’s lack of prior felony
convictions, clean drug screens, and commitment to stay out of her children’s lives in the future.
The State expressed reservations about probation, noting that “she was essentially delivering
heroin to her . . . drug addicted son” and “perpetuating a problem with her own son” and his
customers. The circuit court considered a variety of factors when contemplating petitioner’s
sentence, including her family history. In discussing her family history, the court mentioned her
sons, who had their own lengthy criminal histories. The court noted that the sons “didn’t learn to
be a criminal when they got 18[,] they were developed into criminals while they were with you.”
However, the circuit court ultimately denied petitioner probation for a variety of reasons,
including her lack of steady employment. Specifically, the court noted that petitioner had been
fired from both Walmart and McDonalds. Further, the circuit court was troubled by petitioner’s
criminal history, including possession of a controlled substance, shoplifting, receiving a stolen
vehicle, and contributing to the delinquency of a minor. While the circuit court noted that this was
petitioner’s first felony conviction, it found she was not a “suitable candidate for probation” for
the reasons described above. By order entered on August 26, 2019, the circuit court sentenced
petitioner to the fixed statutory penalty of one to fifteen years of incarceration and fined petitioner
$1,000 out of a possible $25,000 fine. It is from her sentencing order that petitioner now appeals.
This Court “reviews sentencing orders, . . . under a deferential abuse of discretion standard,
unless the order violates statutory or constitutional commands.” Syl. Pt. 1, in part, State v. Lucas,
201 W. Va. 271, 496 S.E.2d 221 (1997). “‘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).” Syl. Pt. 3, State v.
Georgius, 225 W. Va. 716, 696 S.E.2d 18 (2010).
Here, there is no dispute that the sentence imposed by the trial court is within the statutory
limits for possession with intent to deliver heroin. See W. Va. Code § 60A-4-401(a)(i) (“Any
person who violates this subsection . . . is guilty of a felony and, upon conviction thereof, may be
imprisoned in a state correctional facility for not less than one year nor more than 15 years.”)
Accordingly, petitioner’s sentence is not subject to appellate review unless it was based on some
impermissible factor. Petitioner contends that the circuit court erroneously considered petitioner’s
sons’ criminal histories as an impermissible sentencing factor and, thus, abused its discretion in
sentencing petitioner. We disagree. 1
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In a second assignment of error, petitioner argues that the circuit court demonstrated a
“pre-existing bias” toward her and her family, which violated her due process rights. However,
(continued . . .)
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In support of her claim, petitioner cites the circuit court’s statement at the final sentencing
hearing that she must “suffer some responsibility” regarding her sons’ criminal histories, as well
as other references to her sons throughout the hearing. We first note that it is apparent from the
record on appeal that petitioner’s family history was not the focus of the circuit court’s
consideration at sentencing. To the contrary, there were a host of factors, such as petitioner’s own
criminal history, lack of steady employment, and substance abuse that were of serious import at
the sentencing phase of this case. In particular, the circuit court seemed justly concerned with the
fact that petitioner was transporting heroin that endangered the community. However, to the extent
the circuit court’s comment rose to the level of a sentencing factor, we find no error.
Given the particular circumstances of this case, which involved petitioner aiding her son
in the possession and transportation of heroin, the circuit court did not commit reversible error in
considering petitioner’s family history and the circumstances by which she facilitated her son’s
criminal activities. Several grounds in both law and fact undergird our conclusion. While petitioner
repeatedly asserts that the circuit court’s comments reveal an existing bias toward her and,
therefore, were impermissible sentencing factors, she fails to cite any authority to show that a
sentencing court may not consider family history at the time of sentencing. To the contrary, this
Court has long held that trial courts have wide discretion in the sources and types of evidence used
in determining the kind and extent of punishment to be imposed. See State ex rel. Dunlap v.
McBride, 225 W. Va. 192, 202, 691 S.E.2d 183, 193 (2010). The State also routinely collects
petitioner failed to cite any legal authority discussing due process in support of this assertion.
Further, petitioner fails to include any citation to the record to establish that this issue was
preserved for appellate review. Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure
requires 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 . .
. [and] must contain appropriate and specific citations to the record on appeal,
including citations that pinpoint when and how the issues in the assignments of
error were presented to the lower tribunal. The Court may disregard errors that are
not adequately supported by specific references to the record on appeal.
(Emphasis added). Here, petitioner’s brief in regard to this assignment of error is inadequate, as it
fails to comply with Rule 10(c)(7). Even more importantly, petitioner fails to assert, let alone cite
to the record to support to such assertions, that she objected to any of these alleged procedural
failures in the court below. As this Court has long held, “‘[o]ur general rule is that nonjurisdictional
questions . . . raised for the first time on appeal, will not be considered.’ Shaffer v. Acme Limestone
Co., Inc., 206 W.Va. 333, 349 n. 20, 524 S.E.2d 688, 704 n. 20 (1999).” Noble v. W. Va. Dep’t of
Motor Vehicles, 223 W. Va. 818, 821, 679 S.E.2d 650, 653 (2009). Further, “[a] skeletal
‘argument,’ really nothing more than an assertion, does not preserve a claim . . . . Judges are not
like pigs, hunting for truffles buried in briefs.” State v. Kaufman, 227 W. Va. 537, 555 n.39, 711
S.E.2d 607, 625 n.39 (2011) (citation omitted). Accordingly, the Court will not address this
assignment of error on appeal.
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family background information when compiling a presentence investigation report. Indeed, Rule
32(b)(4)(A) of the West Virginia Rules of Criminal Procedure directs that the presentence
investigation report must contain “information about the defendant’s history and characteristics,
including information concerning the defendant’s court and criminal record, occupation, family
background . . . [and] any circumstances that, because they affect the defendant’s behavior, may
be helpful in imposing sentence, determining the propriety and conditions of release on probation,
or determining correctional treatment.”
In support of her argument, petitioner cites United States v. Robinson, 829 F.3d 878 (7th
Cir. 2016) and United States v. Figueroa, 622 F.3d 739 (7th Cir. 2010) in her discussion of this
issue; however, these cases do not stand for the proposition that a sentencing court may not
consider family history at the time of sentencing. In Robinson, the sentencing court erroneously
discussed urban decay, historical and recent protests around the country, and other societal issues
that had no bearing on the defendant’s underlying conviction of traveling in interstate commerce
to facilitate heroin distribution. As a result, his sentence was vacated and reversed by a higher
court. In Figueroa, the sentencing court linked the defendant’s Mexican heritage to drug and
immigration issues in Mexico, as well as the drug trade in Venezuela, Columbia, and even Iranian
terrorists and foreign dictators. In both cases, the Seventh Circuit Court of Appeals acknowledged
there may be adequate factors to support the sentences but determined the extraneous and
inflammatory remarks made it unclear as to how much weight or emphasis the sentencing courts
put on the extraneous factors. However, the facts underlying the Robinson and Figueroa decisions
are wholly distinguishable from the case at bar. Here, the circuit court did not base its sentence on
social commentary or events outside the state. Further, the sentencing courts in Robinson and
Figueroa possessed wide discretion in determining sentences, with only advisory guidelines
recommending limits on sentences, whereas the circuit court’s authority in this case was limited
by statute. Indeed, the statutory penalty for violating West Virginia Code § 60A-4-401 is fixed,
and the circuit court’s discretion was confined to the statutorily established sentence. Finally,
petitioner’s conviction was directly related to her son’s criminal activity—not broader social
issues. Petitioner’s actions perpetuated her own son’s drug use and distribution, making his actions
relevant to sentencing. Hence, we find petitioner’s reliance on Robinson and Figueroa to be
misplaced.
Moreover, petitioner’s family history was referenced in the presentence investigation
report and at the sentencing hearing, without objection. We have often explained that the
requirement for a party to raise or waive an objection is designed “to prevent a party from obtaining
an unfair advantage by failing to give the trial court an opportunity to rule on the objection and
thereby correct potential error.” Wimer v. Hinkle, 180 W. Va. 660, 663, 379 S.E.2d 383, 386
(1989). At no time during the sentencing hearing did petitioner object to the discussion of her
family history. Instead, petitioner argued that her crimes were mitigated by the fact that this was
her first felony offense and her past offenses were a series of misdemeanor offenses mostly
committed while she was in her twenties. In any event, the circuit court simply referenced
petitioner’s sons’ criminal histories, in addition to considering her own criminal history, substance
abuse, lack of employment, and poor decision making. Given the serious nature and extent of
petitioner’s crimes, which are undisputed by the parties, we find no abuse of the circuit court’s
discretion in sentencing.
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For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 5, 2019, order is hereby affirmed.
Affirmed.
ISSUED: November 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
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