State of West Virginia v. Jennifer Marie Wallace ( 2019 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia,
Plaintiff Below, Respondent FILED
October 11, 2019
vs) No. 18-1042 (Wood County 17-F-336) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Jennifer Marie Wallace,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Jennifer Marie Wallace, by counsel Courtney L. Ahlborn, appeals the September
13, 2018, order entered in the Circuit Court of Wood County that sentenced her to seven years in
prison upon her guilty plea to one count of second-degree arson. The State of West Virginia, by
counsel Scott E. Johnson, filed a response and a supplemental appendix. On appeal, petitioner
argues that her sentence is constitutionally impermissible because it is disproportionate to her
crime.
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.
On November 7, 2017, petitioner was indicted by a Wood County Grand Jury on one count
of first-degree arson, see West Virginia Code § 61-3-1, and two counts of causing serious bodily
injury during an arson-related crime. See W.Va. Code § 61-3-7(b). Petitioner thereafter entered a
guilty plea to second-degree arson, a lesser-included offense of first-degree arson. See W.Va. Code
§ 61-3-2. Under the plea agreement, the State agreed to dismiss the remaining counts of the
indictment.
According to the pre-sentence investigation report, on August 24, 2017, petitioner went to
the apartment of a former boyfriend where she got into an argument with him, his girlfriend, and
another resident of the apartment building. As petitioner left the residence, she set fire to a gas can
that was located on the back deck, which connects to other apartments within the building.
Petitioner’s former boyfriend sustained injuries to the inside of his legs while attempting to
extinguish the fire, while another tenant burned his hand after he grabbed a door knob in an effort
to locate the fire.
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Various witnesses informed police that petitioner had bragged about previously setting
houses on fire when she was upset or someone owed her money. In the present case, petitioner
told one witness that someone was “going to take a loss today.” In her own statements to police,1
petitioner stated that she “was on a lot of drugs plus very intoxicated[.]” She told police that she
“walked out back, grabbed a gas can and lit the f****ng thing and walked off[,]” that she was
trying to harm her former boyfriend’s present girlfriend, and that if she sees the girlfriend “when
she gets out that she will kill her.” According to petitioner, “it was set that place on fire or blow
that b**ch’s head off. I don’t have access to a gun”[;] however, she declared that if she did have
access to a gun, she would have “walked up, pulled the screen out and pulled the trigger.” Petitioner
stated further that she did not care about the other people who were in the apartment or about “the
drug addicts upstairs or their two little kids.” During her arraignment, petitioner continued to state
that she wished that the girlfriend was dead and that she would have set her on fire. When her bond
was set at $300,000, petitioner declared, in the presence of the presiding magistrate, that, “for a
$300,000 bond, I should have just killed her.” Petitioner also told police that if someone “pissed
me off” again, that she would probably set someone else’s house on fire.
A sentencing hearing was conducted on September 13, 2018. During the hearing,
petitioner, by counsel, requested alternative sentencing, noting that petitioner had already been
incarcerated for 385 days, that she had a very minimal criminal history, and that the underlying
incident “was fueled a lot by her substance abuse problem, which she would be willing to address
during her probation.” The State requested a sentence “between seven years and the maximum”
[i.e., ten years]. At the conclusion of the hearing, the circuit court denied petitioner’s request for
alternative sentencing and sentenced her to a period of incarceration of seven years. In the
September 13, 2018, order memorializing petitioner’s sentence, the court stated “that the character
and the circumstances of the case indicate that the Defendant is likely to again commit crime and
that the public good does require that the Defendant be imprisoned.” It is from this order that
petitioner now appeals.
Petitioner’s sole assignment of error is that her sentence is disproportionate to the crime
and violates the constitutional prohibition against cruel and unusual punishment. She contends that
she had a minimal criminal history consisting only of misdemeanors, had no prior felony
convictions or arrests, and advised the court that she was willing to undergo substance abuse
treatment in connection with an alternative sentence. Petitioner acknowledges that “the threat of
significant damage and injury to people is always present in arson[.]” However, she argues, the
people who put out the fire suffered only “minimal burns” that “did not require significant medical
treatment” and the apartment building itself sustained only minimal damage. Petitioner argues that,
for all of these reasons, the seven-year sentence imposed upon her is disproportionate to the crime
and should be vacated in favor of an alternative sentence of a prison term of less than five years.
We find no error. This Court reviews sentencing orders “‘under a
deferential abuse of discretion standard, unless the order violates statutory or constitutional
commands.’ Syllabus Point 1, [in part,] State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).”
Syl. Pt. 2, in part, State v. Eilola, 226 W. Va. 698, 704 S.E.2d 698 (2010). Furthermore,
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Petitioner gave two statements to police after waiving her rights under Miranda v.
Arizona, 384 U.S. 486 (1966).
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“‘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).” Eilola, 226 W. Va. at 699, 704 S.E.2d at 699,
syl. pt. 1. Finally, this Court has explained 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).
Pursuant to West Virginia Code § 61-3-2, one who is convicted of arson in the second
degree “shall . . . be sentenced to the penitentiary for a definite term of imprisonment which is not
less than one nor more than ten years.” Id., in part. Petitioner’s seven-year sentence clearly falls
within these statutory parameters. Moreover, petitioner does not claim that the sentence imposed
was based upon any impermissible factors. See Eilola, 226 W.Va. at 699, 704 S.E.2d at 699, syl.
pt. 1. To the contrary, the circuit court properly considered the fact that petitioner had no regard
for the ramifications of her actions, regretted that her actions had not resulted in the girlfriend’s
death, and declared that if someone “pissed [her] off” again, she would set someone else’s house
on fire. The court’s belief that petitioner “is likely to again commit crime” and that she should be
imprisoned for “the public good” was not ill-conceived. The imposition of a seven-year sentence
was, thus, within the circuit court’s discretion and petitioner’s claim that it was disproportionate
to the crime is without merit.2
For the foregoing reasons, the circuit court’s sentencing order entered on September 13,
2018, is affirmed.
Affirmed.
ISSUED: October 11, 2019
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison
2
To the extent petitioner suggests that the circuit court erred in refusing to grant her request
for an alternative sentence, we note that petitioner’s brief fails to present any legal authority in
support of such a claim. This Court has made clear that “[a] skeletal ‘argument,’ really nothing
more than an assertion, does not preserve a claim[.]” State, Dep’t of Health v. Robert Morris N.,
195 W. Va. 759, 765, 466 S.E.2d 827, 833 (1995) (internal quotation marks and citations omitted).
We thus decline to address this inadequately briefed issue on the merits.
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