State of West Virginia v. Radee M. Hill ( 2016 )


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  •                              STATE OF WEST VIRGINIA
    SUPREME COURT OF APPEALS
    State of West Virginia,
    Plaintiff Below, Respondent                                                      FILED
    November 14, 2016
    vs) No. 16-0138 (Fayette County 15-F-67)                                        RORY L. PERRY II, CLERK
    SUPREME COURT OF APPEALS
    OF WEST VIRGINIA
    Radee M. Hill,
    Defendant Below, Petitioner
    MEMORANDUM DECISION
    Petitioner Radee M. Hill, by counsel Anthony Ciliberti, Jr., appeals the order of the
    Circuit Court of Fayette County, entered January 20, 2016, sentencing him to a term of
    incarceration of fifty years in the West Virginia Penitentiary for his conviction of the felony
    offense of first-degree robbery. The State, by counsel Brian D. Parsons, filed a response. On
    appeal, petitioner argues that his sentence is disproportionate.
    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.
    Petitioner, along with four co-defendants, traveled from South Carolina to West Virginia
    to rob Andrew Gunn. Upon arrival at Mr. Gunn’s home, petitioner and at least two of the
    remaining co-defendants disguised themselves and armed themselves with two handguns and a
    shotgun. The men then entered the residence and ordered the occupants, including Mr. Gunn,
    Linda Knight, and Ms. Knight’s young granddaughter, to the ground. Ms. Knight suffers from a
    heart condition, and upon the men’s entry into the home, she began to experience chest pains.
    Ms. Knight’s young granddaughter urinated on herself in fear.
    The men stole a safe containing approximately $9,000, two pairs of Air Jordan sneakers,
    and a Horton crossbow. Upon their return to South Carolina, a co-defendant’s mother provided a
    tip to the authorities, and the men were arrested. All five individuals were indicted for the crimes
    of conspiracy to commit a felony, first-degree robbery, entry of a dwelling, and grand larceny.
    At trial, petitioner was convicted of conspiracy to commit a felony, first-degree robbery,
    and entry of a dwelling. The grand larceny charge was dismissed at trial, upon the State’s
    motion. Thereafter, petitioner was sentenced to the State Penitentiary for an indeterminate period
    of not less than one year nor more than five years for the felony offense of conspiracy to commit
    a felony, for not less than one year nor more than ten years for the felony offense of entry of a
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    dwelling, and for a determinate period of fifty years for the felony offense of robbery in the first
    degree. On January 20, 2016, petitioner was resentenced to restart the appeal period, and it is
    from the order resentencing petitioner that he appeals. On appeal, petitioner challenges only the
    fifty-year determinate sentence for his conviction of first-degree robbery.
    With regard to his conviction of first-degree robbery, petitioner argues that this sentence
    is disproportionate to the crime and therefore violates his right to proportional sentencing under
    Article III, Section 5 of the West Virginia Constitution. 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. Adams, 211 W.Va. 231, 
    565 S.E.2d 353
    (2002). Additionally, we have 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.” Syl. Pt. 4, State v. Goodnight, 169 W.Va. 366, 
    287 S.E.2d 504
    (1982). But, “[s]entences
    imposed under statutes providing no upper limits may be contested based upon allegations of
    violation of the proportionality principles contained in Article III, Section 5 of the West Virginia
    Constitution.” State v. Tyler, 211 W.Va. 246, 250, 
    565 S.E.2d 368
    , 372 (2002) (citation
    omitted). Because our first-degree robbery statute contains no upper limit, the Court will
    undertake a proportionality analysis in this matter.
    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.” Adams, 211 W.Va. at 
    233, 565 S.E.2d at 355
    (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 this case, petitioner, along with four co-defendants, traveled from South Carolina to
    West Virginia for the purpose of invading Mr. Gunn’s home and robbing him. Petitioner and two
    of his co-defendants armed themselves before entering the residence. Ms. Knight’s heart
    condition rendered her particularly vulnerable to the shock and fear caused by armed men
    entering the residence. Her young granddaughter was so fearful that she urinated on herself.
    Moreover, petitioner’s criminal history, per his presentence investigation report, includes
    “breaking into vehicle, shoplifting, drinking in public, open container, petit larceny,
    public/disorderly conduct, and breaking into auto.” For these reasons, this Court does not find
    that petitioner’s fifty-year determinate sentence for first-degree robbery shocks the conscience.
    Moving to the objective test, and in considering the nature of the offense, we recognize,
    as we long have, that “aggravated robbery . . . involves a high potentiality for violence and injury
    to the victim involved.” 
    Id. at 234,
    565 S.E.2d at 356. Although petitioner’s victims were not
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    physically harmed, “this fact does not diminish the inherent potential for injury or even death
    that can occur in an aggravated robbery crime.” 
    Id. This Court
    has recognized that the sentencing scheme for first-degree robbery serves two
    purposes: “First, it gives recognition to the seriousness of the offense by imposing a minimum
    sentence below which a trial court may not go. Second, the open-ended maximum sentencing
    discretion allows trial courts to consider the weight of aggravating and mitigating factors in each
    particular case.” 
    Id. at 234-35,
    565 S.E.2d at 356-57 (citation omitted). The primary mitigating
    factor here is the fact that no one was physically injured; however, aggravating factors include
    petitioner’s criminal history and the finding in his presentence investigation report that he has a
    “[v]ery [h]igh risk/need level[,]” meaning that petitioner has a ninety-nine percent chance of
    recidivating.
    In comparing the length of petitioner’s sentence with what would be inflicted in other
    jurisdictions, this Court has previously recognized that other jurisdictions permit long prison
    sentences for first-degree robbery. See 
    id. at 235,
    565 S.E.2d at 357 (citing State v. Boag, 
    453 P.2d 508
    (Ariz. 1969) (imposing seventy-five to ninety-nine-year sentence); State v. Victorian,
    
    332 So. 2d 220
    (La. 1976) (imposing forty-five-year sentence); State v. Hoskins, 
    522 So. 2d 1235
    (La. Ct. App. 1988) (imposing ninety-nine-year sentence); People v. Murph, 
    463 N.W.2d 156
    (Mich. Ct. App. 1990) (imposing two forty-six-year sentences); State v. Morris, 
    661 S.W.2d 84
    (Mo. Ct. App. 1983) (imposing life sentence); Robinson v. State, 
    743 P.2d 1088
    (Okla. Crim.
    App. 1987) (imposing 100-year sentence)).
    Lastly, comparing the punishment with other offenses within this jurisdiction, this Court
    has rejected proportionality challenges in many cases involving first-degree robbery, even where
    the sentences imposed have exceeded petitioner’s. Adams, 211 W.Va. at 
    235, 565 S.E.2d at 357
    (citing State v. Williams, 205 W.Va. 552, 
    519 S.E.2d 835
    (1999) (upholding fifty-year sentence
    for attempted aggravated robbery); State v. Phillips, 199 W.Va. 507, 
    485 S.E.2d 676
    (1997)
    (upholding 140-year sentence for two counts of aggravated robbery and one count of
    kidnapping); State v. Ross, 184 W.Va. 579, 
    402 S.E.2d 248
    (1990) (upholding 100-year sentence
    for attempted aggravated robbery); State v. Spence, 182 W.Va. 472, 
    388 S.E.2d 498
    (1989)
    (upholding sixty-year sentence for aggravated robbery); State v. England, 180 W.Va. 342, 
    376 S.E.2d 548
    (1988) (upholding life sentence for aggravated robbery); State v. Brown, 177 W.Va.
    633, 
    355 S.E.2d 614
    (1987) (upholding sixty-year sentence for aggravated robbery); State v.
    Glover, 177 W.Va. 650, 
    355 S.E.2d 631
    (1987) (upholding seventy-five-year sentence for
    aggravated robbery)).
    In Adams, this Court upheld a ninety-year sentence for first-degree robbery. 211 W.Va.
    231, 
    565 S.E.2d 353
    . That sentence was upheld in spite of the fact that neither a deadly weapon
    nor extreme violence was used during the commission of the crime. 
    Id. at 232,
    565 S.E.2d at
    354. In the instant case, petitioner’s sentence was only slightly more than half of Mr. Adams’s,
    and petitioner used a gun in the commission of this crime to intimidate and scare vulnerable
    victims. Thus, we find that petitioner’s sentence is not disproportionate to the crime committed.
    Accordingly, for the foregoing reasons, we affirm the circuit court’s January 20, 2016,
    order.
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    Affirmed.
    ISSUED: November 14, 2016
    CONCURRED IN BY:
    Chief Justice Menis E. Ketchum
    Justice Robin Jean Davis
    Justice Brent D. Benjamin
    Justice Margaret L. Workman
    Justice Allen H. Loughry II
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