State of West Virginia v. Brandon Porter ( 2013 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia, FILED
Plaintiff Below, Respondent March 12, 2013
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
vs.) No. 11-1773 (Wood County 11-F-135) OF WEST VIRGINIA
Brandon Porter,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner’s appeal, by counsel Robin Bonovith, arises from the Circuit Court of Wood
County, wherein he was sentenced by order entered on December 1, 2011. The State, by counsel
Andrew Mendelson, has filed its response.
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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.
Petitioner was indicted on one count of first degree arson pursuant to West Virginia Code
§ 61-3-1 and one count of third degree arson pursuant to West Virginia Code § 61-3-3. Petitioner
pled guilty to a lesser included offense of second degree arson. Prior to sentencing, petitioner
underwent a presentencing evaluation. Petitioner was sentenced to a definite term of eight years
with credit for one hundred and twenty-five days.
Petitioner argues that the circuit court’s sentence was excessive given the evidence
presented and the nature of the case. Petitioner argues he should have been given some form of
alternative sentencing. The State argues in favor of the sentencing order, stating “the court after
careful consideration all of the permissible factors gave him eight years” and that the circuit court
did not abuse its discretion.
“‘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). Moreover, “‘[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. 499, 665 S.E.2d 674 (2008).
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Upon our review, we find no abuse of discretion by the circuit court in sentencing
petitioner to a definite sentence of eight years following his guilty plea. The sentence imposed
was within statutory limits and was not based on an impermissible factor.
For the foregoing reasons, the circuit court’s sentencing order is hereby affirmed.
Affirmed.
ISSUED: March 12, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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