State of West Virginia v. Nicholas Ryan Robey , 233 W. Va. 1 ( 2014 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2014 Term
FILED
January 28, 2014
released at 3:00 p.m.
No. 12-1413
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent
v.
NICHOLAS RYAN ROBEY,
Defendant Below, Petitioner
Appeal from the Circuit Court of Harrison County
Honorable James A. Matish, Judge
Criminal Action No. 10-F-122-3
AFFIRMED
Submitted: January 22, 2014
Filed: January 28, 2014
Jerry Blair, Esq. Patrick Morrisey, Esq.
Clarksburg, West Virginia Attorney General
Attorney for Petitioner Benjamin F. Yancey, III.
Assistant Attorney General
Andrew D. Mendelson, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for Respondent
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. “‘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).
2. “‘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. 6, State v. Slater,
222 W.Va. 499, 665 S.E.2d 674 (2008).
3. “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.” Syl. Pt. 2, State
v. Buck, 173 W.Va. 243, 314 S.E.2d 406 (1984).
Per Curiam:
The petitioner, Nicholas Ryan Robey, appeals the October 16, 2012, order of
the Circuit Court of Harrison County sentencing him to life in prison without the possibility
of parole following his guilty plea to the offense of felony murder. The petitioner’s sole
assignment of error is that the circuit court erred in imposing a sentence that is
disproportionate in comparison to the sentences received by his three co-defendants. Upon
consideration of the briefs and arguments of the parties, the appendix record, and the
applicable legal authority, and for the reasons discussed below, we find no error and,
accordingly, affirm.
I. Facts and Procedural History
On August 13, 2009, the petitioner and his co-defendants drove to the home
of eighty-year-old Clarence Leeson in rural Harrison County, West Virginia, for the purpose
of committing a burglary. Upon their arrival, the petitioner knocked on Mr. Leeson’s front
door while two of his co-defendants, Christopher Robey, the petitioner’s brother, and Joshua
Morgan, went to the back door.1 When Mr. Leeson answered the door, the petitioner asked
him if he could use his telephone because his car had broken down. While pretending to use
the telephone inside the home, the petitioner allowed his co-defendants to enter the home
1
A third co-defendant, Megan Jones (also known as Megan Titus), remained in the
vehicle. According to the petitioner, Ms. Jones had previously been in Mr. Leeson’s home
and came up with the idea to commit the burglary.
1
through the back door. While the petitioner talked with Mr. Leeson in the living room, the
co-defendants searched the home and stole various guns and pills. According to the
petitioner,2
Then, the only place they had left to search was Mr. Leeson’s
bedroom and they couldn’t get to it without being seen by Mr.
Leeson. I asked what they wanted to do, and Chris was holding
a bat and said “I’ll just kill him.” I said I didn’t want Mr.
Leeson to die so I said “no, I’ll do it. I’ll knock him out.” I
figured that I would knock Mr. Leeson out and would get
arrested later for robbery because he’d see my face, but figured
that was better than murder. So I walked into the living room
with the baseball bat down by my side and I hit Mr. Leeson.
After I hit him the first time, he stood up and so I hit him again
and he fell back into his chair, but then he stood up again and so
I hit him a third time and he fell back in his chair and didn’t get
back up. He was breathing pretty heavily, but he was alive.
Then Josh and Chris went to Mr. Leeson’s bedroom and I stood
guard in the door, keeping an eye on Mr. Leeson with a mesh
backpack on my back. Josh and Chris got the guns and stuff out
of the room and put some stuff in the backpack on my back,
including a pistol and some shells. Then I noticed that Mr.
Leeson was bleeding pretty badly and we decided to leave. So,
I went to the front door and locked the front door and then we
went out the back door and I turned the knob on the back door
and pulled it closed. 3 When we left, Mr. Leeson was still alive.
I didn’t think he’d die.4
(footnotes added).
2
The petitioner’s account of what happened in Mr. Leeson’s home was given during
a diagnostic interview. He gave a similar consistent statement during his plea hearing.
3
Co-defendant Joshua Morgan told the police that when the three men returned to the
vehicle, the petitioner bragged about beating Mr. Leeson with a baseball bat.
4
Mr. Leeson’s body was not discovered until two days later when, at the request of his
daughter-in-law, law enforcement was dispatched to his home to check on him.
2
The petitioner ultimately fled to North Carolina, where, upon his arrest on
February 2, 2010, he told officers, “You might as well just kill me for what I have done.”5
The petitioner and his co-defendants were ultimately indicted for the offenses of felony
murder, conspiracy to commit burglary, and grand larceny.
On August 5, 2010, the petitioner entered into a plea agreement with the State
in which he agreed to plead guilty to felony murder as set forth in Count Ten of the
indictment, and, upon acceptance thereof, the State agreed to dismiss the remaining counts.
The plea agreement further provided that the State would join with the petitioner “in
requesting that the Court make a recommendation of mercy[;]” that the State had made no
representations to the petitioner as to the final disposition of this matter; and that “[t]he
acceptance or rejection of this Plea Agreement and the matter of sentencing is left in the sole
discretion of the sentencing Judge.” At the conclusion of the plea hearing6 and in a
subsequent order entered August 19, 2010, the circuit court ordered a presentence
investigation report and a sixty-day diagnostic evaluation and held its acceptance of the
petitioner’s guilty plea in abeyance pending receipt of those reports.
5
Meanwhile, co-defendants Christopher Robey and Megan Jones were arrested for the
subject crime in San Diego, California, on November 6, 2009; the record is unclear on what
date co-defendant Joshua Morgan was arrested.
6
The plea hearing was conducted on August 5, 2010.
3
On August 2, 2011, the circuit court conducted a sentencing hearing during
which the petitioner and his co-defendants all appeared.7 During the course of the hearing,
the circuit court sentenced the petitioner’s co-defendants to life in prison with the
recommendation that each be eligible for parole after serving fifteen years. With regard to
the petitioner, however, the circuit court sentenced him to life in prison without the
possibility of parole. It is from the sentencing order that the petitioner now appeals.
II. Standard of Review
This case comes before this Court upon an appeal from a sentencing order. We
have previously explained that “‘[t]he 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). Further,
“‘[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. 6, State v. Slater, 222 W.Va.
7At the sentencing hearing, the circuit court made reference to the fact that the guilty
pleas of the petitioner and his co-defendants to felony murder were accepted during a prior
hearing conducted on May 19, 2011. The transcript of that hearing and the circuit court’s
order resulting therefrom were not made a part of the appendix record in this appeal.
4
499, 665 S.E.2d 674 (2008). With these standards in mind, we proceed to address the
petitioner’s argument.
III. Discussion
The sole issue in this appeal is whether the circuit court committed
constitutional error in imposing upon the petitioner a sentence of life in prison without the
possibility of parole. The petitioner argues that the circuit court “depart[ed] from the plea
agreement and the joint recommendation of counsel as to all co-defendants that they receive
a recommendation for eligibility for parole at sentencing[,]” and, as a result, he received a
sentence disparate to the more lenient sentences imposed upon his co-defendants for the same
crime. The petitioner further argues that the circuit court failed to make appropriate findings
in support of the petitioner’s sentence and that this matter should at least be remanded for a
new sentencing hearing. In contrast, the State contends that the circuit court considered the
appropriate factors and correctly determined that the petitioner and his co-defendants were
not similarly situated and that disparate sentences were warranted.
This Court has previously held that
[d]isparate 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
5
maturity), and lack of remorse. If codefendants are similarly
situated, some courts will reverse on disparity of sentence alone.
Syl. Pt. 2, State v. Buck, 173 W.Va. 243, 314 S.E.2d 406 (1984).8 The record in this case
clearly reflects that the circuit court considered the foregoing factors in its imposition of the
petitioner’s sentence. Specifically, a diagnostic (psychological) evaluation, which was
ordered by the circuit court at the conclusion of the plea hearing,9 indicated that the petitioner
presented little remorse over the death of [Mr. Leeson], and did
not demonstrate any fear or sadness until he was asked about
prison. It was at that time that he broke down and stated, “I’ll
never see my twenties outside of prison. . . . I deserve it though.”
8
In Buck, this Court upheld the disparate sentences imposed upon the appellant (thirty
years) and his co-defendant (one year) for aggravated robbery given that the appellant
planned the crime and struck the victim with a tire iron. 178 W.Va. at 508, 361 S.E.2d at
473. In recognizing the basis for the disparate sentence in Buck, we explained that the co­
defendant tried to prevent the appellant from seriously injuring the victim; admitted his guilt;
and testified against the appellant. Id; see also State v. Booth, 224 W.Va. 307, 315-16, 685
S.E.2d 701, 709 (2009) (finding no abuse of discretion in sentencing appellant to eighty years
for first degree robbery as compared to three co-defendants’ sentences of fifty, one, and five
years, respectively, given that appellant “actively pursued the plan to prey on the elderly to
steal money[;]” “attempted to obtain access, on at least three occasions, to [one of the
victim’s] home[s][;]” and “pulled on [the] purse [of the second victim] causing her to fall and
resulting in her significant injuries.” Additionally, these actions occurred while appellant
“was free on bond for the alleged commission of another felony[,] [and] [h]is post-arrest
conduct for his previous charges clearly evidences a lack of desire to change or receive
help.”); State v Damron, 213 W.Va. 8, 16, 576 S.E.2d 253, 261 (2002) (concluding that
appellant’s sentences of one to fifteen years for burglary and one year for petit larceny was
not disproportionate to State’s decision not to prosecute co-defendant because appellant was
also serving federal sentence; facing charges in another county; instigated crimes at issue;
and threatened to fire co-defendant, who was appellant’s employee, if he did not participate
in crimes.).
9
As indicated above, the circuit court held in abeyance its acceptance of the
petitioner’s guilty plea pending receipt of the presentence investigation report and the sixty-
day diagnostic evaluation.
6
His personality profile is consistent with an anti-social
personality disorder.
The court-ordered diagnostic evaluation further indicated that
the likelihood of future recidivism is considered high. Factors
contributing to recidivism risk include prior legal history,10
impulsivity, age,11 and lack of empathy and maturity. Factors
that mitigate his risk of future recidivism include
intelligence/cognitive skills, employability,12 and lack of
substance abuse13. . . . His behavior in the commission of this
murder is purported to be the result of impulsivity and lack of
forethought, however the circumstances of his actions indicate
multiple opportunities to have made different decisions, any of
which would have altered the outcome of this situation and
likely prevented the death of Mr. Leeson.
(footnotes added). Most importantly, the fact that it was the petitioner who actually killed
Mr. Leeson weighed heavily in the circuit court’s decision to sentence him to life in prison
10
According to the presentence investigation report, the petitioner’s prior criminal
record includes a shoplifting conviction in 2009. He was also previously arrested for
possession of marijuana, but the record is unclear whether he was convicted for that offense.
The record further indicates that the petitioner was arrested in 2007 for breaking and
entering, which charge was dismissed.
11
The petitioner was eighteen years old at the time he committed Mr. Leeson’s murder.
12
The petitioner completed school through the ninth grade and later obtained his GED;
he held various jobs from April 2008 until the time of the murder.
13
The presentence investigation report indicated that the petitioner admitted to
regularly using marijuana from age sixteen to eighteen, but denied abusing any other illicit
drugs and further denied abusing alcohol.
7
without mercy; indeed, during the sentencing hearing, the circuit court reasoned that “you’re
the one who swung the bat, not once, not twice, but three times.”14
Without hesitation, this Court concludes that the petitioner’s admitted role in
the callous and brutal murder of Mr. Leeson clearly justified a sentence disparate from his
co-defendants. The petitioner mercilessly beat his unsuspecting victim with a baseball bat
and then locked the doors to the victim’s home so that aid could not easily be rendered.15
Furthermore, the record before the circuit court demonstrated that the petitioner showed little
remorse for Mr. Leeson’s death and, in fact, bragged to his co-defendants about what he had
done. Although the petitioner’s prior criminal record did not involve violent crimes, it was
determined that “the likelihood of future recidivism is considered high.” Given all of the
above, we conclude that the circuit court did not abuse its discretion in imposing a harsher
sentence upon the petitioner than upon his co-defendants. See Buck, 178 W.Va. at 508, 361
S.E.2d at 473. Likewise, we find no merit to the petitioner’s contention that the circuit court
failed to make appropriate findings to support the sentence imposed.
14
In sentencing the petitioner’s co-defendants to life with the recommendation of
parole, the circuit court also stated that “there will be a note put in [each of] your files that
the Court does not feel that each of you deserve to get out at the end of 15 years.”
15
When the victim’s daughter-in-law enlisted the assistance of law enforcement to
check on his welfare two days after the murder, they had to force their way into the home.
8
IV. Conclusion
Based upon the foregoing, the October 16, 2012, order of the Circuit Court of
Harrison County is hereby affirmed.
Affirmed.
9