State of West Virginia v. Tanya Jean Parker-Boling ( 2017 )


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  •                               STATE OF WEST VIRGINIA
    SUPREME COURT OF APPEALS
    State of West Virginia,
    Plaintiff Below, Respondent                                                        FILED
    November 22, 2017
    vs) No. 16-1193 (Raleigh County 10-F-300)                                       EDYTHE NASH GAISER, CLERK
    SUPREME COURT OF APPEALS
    OF WEST VIRGINIA
    Tanya Jean Parker-Boling,
    Defendant Below, Petitioner
    MEMORANDUM DECISION
    Petitioner Tanya Jean Parker-Boling, by counsel Shannon L. Baldwin, appeals the Circuit
    Court of Raleigh County’s November 14, 2016, order revoking her supervised release and
    sentencing her to serve the balance of her twenty-five years of extended supervision in the
    custody of the West Virginia Division of Corrections. The State of West Virginia, by counsel
    Gordon L. Mowen II, filed a response in support of the circuit court’s order and a supplemental
    appendix. On appeal, petitioner argues that the circuit court’s sentencing her to serve the
    remainder of her twenty-five years of supervised release in prison is unconstitutional.
    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 2010, petitioner was indicted on three counts of third-degree sexual
    assault. Pursuant to a plea agreement with the State, petitioner pled guilty to one count of third-
    degree sexual assault. The circuit court sentenced petitioner to an indeterminate term of not less
    than one year nor more than five years of incarceration and ordered that, upon petitioner’s
    release from custody, she be placed on supervised release for a period of twenty-five years. In
    December of 2012, petitioner discharged her prison sentence.
    Shortly after her release from prison, petitioner began a repeated course of violating the
    terms and conditions of her supervised release. On April 2, 2013, petitioner’s Intensive
    Supervision Officer (“ISO”) filed a petition to revoke petitioner’s supervised release (the “first
    petition”). At a hearing on the first petition, petitioner admitted to a violation alleged in the first
    petition, and the circuit court revoked her supervised release and sentenced her to six months of
    incarceration. The circuit court also ordered that, following the completion of petitioner’s
    incarceration, she be placed back on supervised release under the same conditions previously
    ordered.
    1
    Later that year, following petitioner’s incarceration resulting from the first petition,
    petitioner’s ISO filed a second petition to revoke petitioner’s supervised release (the “second
    petition”). Following a hearing on the second petition, the circuit court found petitioner to have
    again violated the rules and conditions of her supervised release. The circuit court ordered that
    petitioner be incarcerated for ninety days and, upon release from incarceration, be placed on
    supervised release under the previously-imposed terms of that supervised release.
    Not long after petitioner’s release from the incarceration imposed following the second
    petition, petitioner’s ISO filed a third revocation petition (the “third petition”). After finding that
    petitioner violated the terms of her supervised release as alleged in the third petition, on
    September 11, 2014, the circuit court ordered that she be incarcerated for four years and, upon
    completion of this sentence, returned to supervised release. Petitioner appealed this order to this
    Court. We affirmed the September 11, 2014, revocation and sentencing order by memorandum
    decision. See State v. Parker-Bowling, No. 14-1015, 
    2015 WL 6143403
     (W.Va. Oct. 16,
    2015)(memorandum decision).1
    Petitioner discharged the sentence imposed following the third petition and, yet again,
    was alleged to have violated the terms of her supervised release in a fourth petition for
    revocation (the “fourth petition”). In this fourth petition, petitioner’s ISO alleged that petitioner
    violated supervision condition numbers one, seven, twenty-one, and twenty-two. Condition
    number one required that petitioner “maintain a single, verifiable residence within Raleigh
    County. Any change of address must be approved by your probation officer.” Petitioner was
    alleged to have violated this condition because Oakhurst Outreach, the facility at which
    petitioner had been living, informed petitioner’s ISO that petitioner was no longer permitted to
    stay there due to her violation of its zero tolerance drug rules. Individuals staying at the facility
    were required to hand over their medications, and no controlled substances were allowed.
    Petitioner was alleged to have neglected to hand over one medication, Neurontin. Petitioner was
    also prescribed Adderall, which she was not permitted to fill.
    Condition number seven required petitioner to “attend, actively participate in, and
    successfully complete a court-approved sex offender treatment program[.]” Petitioner was
    enrolled in such a program at Oakhurst Outreach, but was discharged due to her inability to be
    “conducive with staff and/or others during daily routines/groups that were attended.” Petitioner
    “constantly push[ed] the limits with staff.” Petitioner’s violation of Oakhurst Outreach’s zero
    tolerance drug rule was also cited in support of this violation.
    Condition numbers twenty-one and twenty-two provided that petitioner “shall not engage
    in behavior that threatens yourself and others or that could result in your incarceration. I must not
    violate any City, State, or Federal Laws.” Further, all violations of the law were to be reported to
    petitioner’s probation officer within twenty-four hours. In support of this violation, petitioner’s
    ISO stated that she went to Oakhurst Outreach to retrieve petitioner’s belongings, including her
    phone and tablet. Petitioner’s ISO discovered that petitioner had two Facebook accounts and an
    1
    Throughout the record, petitioner is referred to alternatively as Tanya Jean Parker-
    Boling, Tanya Jean Parker, Tanya Jean Parker-Bowling, and Tanya Jean Boling.
    2
    e-mail account that were not registered with the state police. As a result of these discoveries,
    petitioner was charged with three felony counts of failing to register.2
    On November 4, 2016, the parties appeared for a hearing on the fourth petition. The State
    noted that petitioner’s ISO had exhausted its resources in finding placement for petitioner, given
    her numerous violations and failures in prior placements.3 The circuit court found that petitioner
    violated the terms of her supervised release as alleged in the fourth petition. “Based upon the
    above findings and [the circuit court’s] familiarity with [petitioner’s] proceedings and continued
    post-release supervision violations since 2010[,]” the circuit court revoked petitioner’s
    supervised release and remanded her to the custody of the West Virginia Division of Corrections
    for completion of her twenty-five-year term. After receiving credit for time served, petitioner’s
    sentence amounted to a sentence of approximately 21.5 years in prison. It is from this order that
    petitioner appeals.
    Petitioner alleges on appeal that her post-revocation sentence is unconstitutional in that it
    constitutes cruel and unusual punishment and is disproportionate to the crime committed.
    Petitioner argues that her original crime, third-degree sexual assault, carried only a one- to five-
    year sentence. With respect to her failure to register charges, petitioner states that she entered
    into a plea agreement whereby she pled guilty to only one count of failure to register. This
    charge similarly carried a one- to five-year sentence. Petitioner also asserts that combining her
    third-degree sexual assault and failure to register sentences results only in a two- to ten-year
    sentence. Further, if the parties had not entered into a plea agreement on her failure to register
    charges, if petitioner had been convicted of all three, and if the circuit court had ordered the
    sentences to run concurrently, her sentence would still have been only three to fifteen years of
    incarceration. Thus, petitioner submits that “[u]nder both the subjective and objective test, [her]
    sentence is excessive and disproportionate under the cruel and unusual punishment provision of
    the Constitution.”4
    2
    On December 20, 2016, petitioner, pursuant to a plea agreement with the State, pled
    guilty to one count of failure to register as a sex offender or provide notice of registration
    changes. The remaining two counts of failing to register were dismissed. The circuit court
    sentenced petitioner to an indeterminate term of not less than one year nor more than five years
    in the penitentiary. This sentence was ordered to run concurrently with petitioner’s sentence on
    appeal in this matter.
    3
    For a short period of time, petitioner resided with her brother; sister-in-law; and four
    children, two of whom were petitioner’s brother’s step-children. Parker-Bowling, 
    2015 WL 6143403
     at *1. Due to the objections of the step-children’s biological father, however, petitioner
    was no longer permitted to stay with her brother. 
    Id.
     Thereafter, petitioner resided in a homeless
    shelter, but was discharged “due to her behaviors at the shelter[.]” Id. at *2. As mentioned above,
    petitioner was also discharged from Oakhurst Outreach.
    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
    3
    “‘The Supreme Court of Appeals 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).” Syl. Pt. 1, State v. James, 
    227 W.Va. 407
    , 
    710 S.E.2d 98
     (2011).
    “A criminal sentence may be so long as to violate the proportionality principle implicit in
    the cruel and unusual punishment clause of the Eighth Amendment to the United States
    Constitution.” Vance, 164 W.Va. at 217, 262 S.E.2d at 425, Syl. Pt. 7. There are two tests for
    determining whether a sentence is so disproportionate to the crime that it violates Article III,
    Section 5 of the West Virginia Constitution. “The first 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.” State v. Adams, 
    211 W.Va. 231
    , 233, 
    565 S.E.2d 353
    , 355 (2002) (citation
    omitted). To determine whether a sentence shocks the conscience, this Court considers all of the
    circumstances surrounding the offense. 
    Id.
     If a sentence is found not to shock the conscience, this
    Court proceeds to the objective test. Under the objective test, to determine whether a sentence
    violates the proportionality principle, “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
    jurisdiction.” Id. at 232, 
    565 S.E.2d at 354
    , Syl. Pt. 2, in part.
    West Virginia Code § 62-12-26(a), governing supervised release for certain sex
    offenders, provides that
    [n]otwithstanding any other provision of this code to the contrary, any defendant
    convicted after the effective date of this section of a violation of section twelve,
    article eight, chapter sixty-one of this code or a felony violation of the provisions
    of article eight-b, eight-c or eight-d of said chapter shall, as part of the sentence
    imposed at final disposition, be required to serve, in addition to any other penalty
    or condition imposed by the court, a period of supervised release of up to fifty
    years[.]
    We have previously explained that, “[f]undamentally, the statute provides that a court impose a
    period of extended supervision as part of the criminal sentence for certain specified offenses, and
    sets forth the manner in which the supervision is to be administered and enforced.” James, 227
    W.Va. at 414, 
    710 S.E.2d at 105
    .
    Moreover, “a court may modify, terminate or revoke any term of supervised release
    imposed[.]” W.Va. Code § 62-12-26(a). Specifically, a court may
    [r]evoke a term of supervised release and require the defendant to serve in prison
    all or part of the term of supervised release without credit for time previously
    character and degree of the offence.’” Syl. Pt. 8, State v. Vance, 
    164 W.Va. 216
    , 
    262 S.E.2d 423
    (1980).
    4
    served on supervised release if the court, pursuant to the West Virginia Rules of
    Criminal Procedure applicable to revocation of probation, finds by clear and
    convincing evidence that the defendant violated a condition of supervised release,
    except that a defendant whose term is revoked under this subdivision may not be
    required to serve more than the period of supervised release[.]
    
    Id.
     at § 62-12-26(g)(3).
    We find that petitioner’s post-revocation sentence does not violate our constitutional
    proportionality principle. In State v. Hargus, 
    232 W.Va. 735
    , 
    753 S.E.2d 893
     (2013), we found
    that a post-revocation sentence of five years did not violate our constitutional proportionality
    principle when Mr. Hargus, who was originally convicted of possession of child pornography,
    violated a condition of his supervised release. Hargus, 232 W.Va. at 744, 753 S.E.2d at 902. We
    noted that the possession of child pornography is a “serious offense” because it victimizes
    children, “the most vulnerable members of society.” Id. We also noted the “immeasurable
    emotional and psychological violence to the children involved.” Id. We observed that, even
    though Mr. Hargus’s possession of child pornography “did not involve sexual contact, his
    consumption of child pornography made him an active participant in its production and
    dissemination.” Id. Finally, we found that the violation of his condition of supervised release,
    which was his first violation, “indicate[d] a pattern of dishonesty.”
    In petitioner’s case, just as in Hargus, her crime of third-degree sexual assault is a
    “serious offense” because a child was victimized.5 In contrast to the situation presented in
    Hargus, however, petitioner’s crime did involve sexual contact. Also unlike the situation
    presented in Hargus, petitioner’s post-revocation sentence was imposed following her fourth
    violation. In Hargus, we found the five-year post-revocation sentence to not be disproportionate
    to the crime following his first violation. Hargus, 232 W.Va. at 744, 753 S.E.2d at 902. Given
    the seriousness of petitioner’s underlying crime and the fact that a five-year post-revocation
    sentence following a first violation does not violate the proportionality principle, we find that
    petitioner’s post-revocation sentence imposed following her fourth violation does not shock the
    conscience under the subjective proportionality test.
    With respect to the objective proportionality test, we note that petitioner has failed to
    offer any analysis of the nature of the offense, the legislative purpose behind the punishment, a
    comparison of the punishment with what would be inflicted in other jurisdictions, or a
    comparison with other offenses within the same jurisdiction. Accordingly, she has failed to
    establish that her sentence is disproportionate under the objective test. See Hargus, 232 W.Va. at
    744, 753 S.E.2d at 902 (“Second, this Court finds that Mr. Hargus’s post-revocation sanctions do
    not violate the objective test for constitutional disproportionality. In sum, Mr. Hargus has failed
    to specifically address how the nature of the offense, the legislative purpose behind the
    punishment, and a comparison with other offenses within the same jurisdiction compels the
    finding that his post-revocation sanctions violate our constitution’s proportionality principle.”);
    5
    Not only that, but in petitioner’s prior appeal to this Court, we documented that the
    forensic psychiatrist who examined petitioner found that she had “little recognition of how the
    events may have affected the minor.” Parker-Bowling, 
    2015 WL 6143403
     at *1.
    5
    see also State, Dep’t of Health & Human Res. v. Robert Morris N., 
    195 W.Va. 759
    , 765, 
    466 S.E.2d 827
    , 833 (1995) (“[a] skeletal ‘argument’, really nothing more than an assertion, does not
    preserve a claim[.]”)
    For the foregoing reasons, the circuit court’s November 14, 2016, order sentencing
    petitioner, is hereby affirmed.
    Affirmed.
    ISSUED: November 22, 2017
    CONCURRED IN BY:
    Chief Justice Allen H. Loughry II
    Justice Margaret L. Workman
    Justice Menis E. Ketchum
    Justice Elizabeth D. Walker
    DISSENTING:
    Justice Robin Jean Davis
    6