State of West Virginia v. Richard Lee Taylor ( 2022 )

FILED
August 31, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia,
Plaintiff Below, Respondent
vs.) No. 21-0543 (Berkeley County CC-02-2020-F-117)
Richard Lee Taylor,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Richard Lee Taylor, by counsel Dylan K. Batten, appeals the Circuit Court of
Berkeley County’s June 14, 2021, order sentencing him to a term of incarceration of fifty years
following his plea of no contest to one count of first-degree robbery. 1 Respondent State of West
Virginia, by counsel Patrick Morrisey and William E. Longwell, filed a response in support of the
circuit court’s order. On appeal, petitioner alleges that his sentence 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 circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.
In January of 2020, petitioner entered a bar in Inwood, West Virginia, and engaged in a
physical altercation with the bartender before producing a firearm and demanding money. The
bartender gave petitioner $578 from the register, after which petitioner fled the scene.
Following his indictment for one count of first-degree robbery, petitioner pled no contest
to the lone count in the indictment in April of 2021. Pursuant to a plea agreement with the State,
petitioner’s potential term of incarceration was capped at fifty years, although the State agreed to
recommend a lesser sentence. As additional terms of the plea agreement, other criminal charges
against petitioner were dismissed with prejudice and the State did not seek a sentencing
enhancement under the recidivist statute.
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Petitioner’s counsel filed the appellate brief in accordance with Rule 10(c)(10)(b) of the
West Virginia Rules of Appellate Procedure.
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At a sentencing hearing in June of 2021, the court considered petitioner’s presentence
investigation report, which detailed an extensive history of criminal conduct including seventy-
one misdemeanor and three felony convictions. The report also reflected petitioner’s pervasive
abuse of illegal drugs and alcohol. During the sentencing hearing, the court heard from petitioner,
who failed to take full responsibility for his conduct by blaming the crime on his substance abuse.
The victim also addressed the court, detailed the lasting impact petitioner’s conduct had on her
and requested that he receive the maximum sentence allowable. Ultimately, the court sentenced
petitioner to a term of incarceration of fifty years. It is from the sentencing order that petitioner
appeals.
We have previously held as follows:
“‘The Supreme Court of Appeals 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).” Syllabus Point 1, State v. Booth, 224 W.Va. 307, 685
S.E.2d 701 (2009).
Syl. Pt. 1, State v. Kilmer, 240 W. Va. 185, 808 S.E.2d 867 (2017). Further, regarding
proportionality, we have 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). Because West
Virginia Code § 61-2-12(a)(1) sets forth no maximum term for first-degree robbery, we turn to
petitioner’s argument on appeal.
According to petitioner, his sentence is excessive and “possibly disproportionate” because
he will not be parole eligible until after he is sixty years old. Essentially, petitioner’s only argument
on appeal is that his advanced age renders his sentence unconstitutional. This argument, however,
cannot entitle petitioner to relief, given that it does not in any way address this Court’s prior
pronouncements for determining whether a sentence is so disproportionate that it violates our
constitutional provisions.
As we have explained,
[p]unishment may be constitutionally impermissible, although not cruel or
unusual in its method, if it is so disproportionate to the crime for which it is inflicted
that it shocks the conscience and offends fundamental notions of human dignity,
thereby violating West Virginia Constitution, Article III, Section 5 that prohibits a
penalty that is not proportionate to the character and degree of an offense.
Syl. Pt. 5, State v. Cooper, 172 W. Va. 266, 304 S.E.2d 851 (1983). Further, the Court explained
that there are two tests for determining if a sentence is disproportionate.
The first [test] 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
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cannot pass a societal and judicial sense of justice, the inquiry need not proceed
further. When it cannot be said that a sentence shocks the conscience, a
disproportionality challenge is guided by the objective test we spelled out in
Syllabus Point 5 of Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205(1981):
In determining whether a given sentence violates the proportionality
principle found in Article III, Section 5 of the West Virginia
Constitution, 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.
Cooper, 172 W. Va. at 272, 304 S.E.2d at 857. Importantly, petitioner does not allege that his
sentence shocks the conscience, and we conclude that it does not. Further, the list of considerations
set forth in Wanstreet does not include the offender’s age, which is the sole basis for petitioner’s
argument on appeal. Because petitioner has failed to undertake an analysis of any of the relevant
factors established by this Court for determining whether a sentence is unconstitutional, we find
that he cannot be entitled to relief.
For the foregoing reasons, we find no error in the decision of the circuit court, and its June
14, 2021, order is hereby affirmed.
Affirmed.
ISSUED: August 31, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
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