State of West Virginia v. Jennifer Barnhart ( 2021 )

FILED
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS March 16, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
State of West Virginia,
Plaintiff Below, Respondent
vs.) No. 19-1017 (Berkeley County 11-F-245)
Jennifer Barnhart,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Jennifer Barnhart, by counsel Stephanie E. Scales-Sherrin, appeals the October
7, 2019, order of the Circuit Court of Berkeley County resentencing petitioner for the purpose of
allowing her to exercise her right to appeal. Respondent State of West Virginia, by counsel Andrea
Nease Proper, filed a response in support of the circuit court’s order.
The 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 has a history of drug addiction and minor crimes. In 2011, petitioner was dating
Brian Shamburg whose cousin, Ronald Shamburg, was performing manual labor at the home of
Howard Strauss (“victim”). The three associates devised a plan to rob the victim. Petitioner was to
knock on the victim’s door feigning a need for assistance. Once the victim opened the door, he
would be robbed. On July 13, 2011, when the victim opened the door to his residence, petitioner
pushed the door back against the victim, knocking him to the floor. Once the victim was on the
floor, all three defendants kicked, beat, and tasered him multiple times. The victim suffered
permanent injuries from the attack, such as numbness on the left side of his face.
Petitioner disputed the victim’s account that she participated in the physical attack against
him. However, the victim’s recollection of the attack is supported by the testimony of Ronald
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Shamburg, who, at his plea hearing, stated that “. . . [petitioner] hit [the victim] a couple times, but
she was really kicking him. Like I remember—all I remember is she was kicking him a lot in the
face and stuff like that.” After brutally attacking the victim, the defendants took his wallet, cash,
and cell phone in order to prevent him from summoning assistance. The victim was able to crawl
to his vehicle and drive himself to a hospital.
In separate criminal cases filed in the Circuit Court of Berkeley County, each defendant
pled guilty to first-degree robbery, conspiracy to commit robbery, and malicious assault pursuant
to a plea agreement with the State. The circuit court imposed consecutive sentences of
incarceration in each defendant’s case: forty years for first-degree robbery; one to five years for
conspiracy to commit robbery; and two to ten years for malicious assault. By sentencing order
entered on May 7, 2012, the circuit court denied petitioner’s request “for a shorter sentence,
concurrency, or alternative sentencing . . . because of the severity of the crimes and the needless
use of the violence upon the victim.” Petitioner did not appeal the circuit court’s May 7, 2012,
sentencing order.
On March 3, 2017, petitioner filed a petition for a writ of habeas corpus in the circuit court.
The circuit court appointed habeas counsel who filed an amended habeas petition on July 23, 2018.
In the amended habeas petition, petitioner alleged that (1) her consecutive sentences were
unconstitutionally disproportionate to her offenses; (2) trial counsel was ineffective by leading
petitioner to believe that she would be given a concurrent sentence of ten years of incarceration;
and (3) no appeal was filed from the circuit court’s May 7, 2012, sentencing order despite
petitioner’s request that an appeal be filed. By order entered on June 25, 2019, the circuit court
denied the amended petition. 1
On August 1, 2019, the parties filed a joint motion asking the circuit court to reconsider its
denial of the amended habeas petition and hold an evidentiary hearing as to whether petitioner
expressed a desire to appeal the May 7, 2012, sentencing order. At a September 17, 2019, hearing,
following testimony by petitioner and her trial counsel, the circuit court found that its order
denying the amended petition should be amended to direct that petitioner be resentenced to allow
her to exercise her right to appeal in the underlying criminal case. By order entered on October 7,
2019, the circuit court stated that it was resentencing petitioner solely for purposes of appeal and
was not altering her consecutive sentences of incarceration for first-degree robbery, conspiracy to
commit robbery, and malicious assault, which amount to an aggregate term of forty-three to fifty-
five years of incarceration. 2
1
Petitioner filed an appeal from the circuit court’s June 25, 2019, order denying the
amended habeas petition in Supreme Court Case No. 19-0662. Given the parties’ joint motion
asking the circuit court to reconsider its denial of the amended habeas petition, petitioner requested
that this Court dismiss the appeal in Supreme Court Case No. 19-0662. By order entered on
October 2, 2019, this Court dismissed that appeal.
2
On October 9, 2019, the circuit court entered an amended order granting, in part, and
denying, in part, petitioner’s amended petition for a writ of habeas corpus and granted her limited
(continued . . .)
2
Petitioner now appeals the circuit court’s October 7, 2019, resentencing order. 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. Lucas, 201 W. Va. 271,
496 S.E.2d 221 (1997). We have further 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).
On appeal, petitioner argues that an aggregate term of forty-three to fifty-five years of
incarceration is unconstitutionally disproportionate to the character and degree of her offenses.
The State counters that petitioner’s consecutive sentences of incarceration for first-degree robbery,
conspiracy to commit robbery, and malicious assault should be affirmed. We agree with the State.
Because West Virginia Code § 61-2-12(a) does not set a maximum term for first-degree
robbery, 3 proportionality review is available to petitioner pursuant to Article III, Section 5 of the
West Virginia Constitution. 4 We have identified two tests to determine whether a sentence is so
disproportionate to a crime that it violates the state constitution. State v. Cooper, 172 W. Va. 266,
272, 304 S.E.2d 851, 857 (1982). As we explained in Cooper,
. . . 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 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
relief in the form of a resentencing in the underlying criminal case.
3
West Virginia Code § 61-2-12(a)(1) provides, in pertinent part, that “[a]ny person who
commits . . . robbery by: (1) [c]ommitting violence to the person, including, but not limited to . . .
beating . . . is guilty of robbery in the first degree and, upon conviction thereof, shall be imprisoned
in a state correctional facility not less than ten years.”
4
In Syllabus Points 3 and 4 of Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d
205 (1981), we held:
“Article III, Section 5 of the West Virginia Constitution, which contains the
cruel and unusual punishment counterpart to the Eighth Amendment of the United
States Constitution, has an express statement of the proportionality principle:
‘Penalties shall be proportioned to the character and degree of the offence.’”
Syllabus Point 8, State v. Vance, [164] W.Va. [216], 262 S.E.2d 423 (1980).
While our constitutional proportionality standards theoretically can apply
to any criminal sentence, they are basically applicable to those sentences where
there is . . . no fixed maximum set by statute . . . .
3
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.
172 W. Va. at 272, 304 S.E.2d at 857.
In addition, in Cooper, we reasoned that “disparate sentences of co-defendants that are
similarly situated may be considered in evaluating whether a sentence is so grossly
disproportionate to an offense that it violates our constitution.” Id. at 271, 304 S.E.2d at 856. Here,
petitioner received the same aggregate sentence as her two co-defendants, but argues that she
deserves a lesser sentence than her co-defendants because she did not participate in the physical
attack against the victim. The State counters that the record belies petitioner’s assertion that she
did not join her co-defendants in physically attacking the victim after he had been knocked to the
floor. Based on our review of the record, we agree with the State. As one of petitioner’s co-
defendants testified, “. . . [petitioner] hit [the victim] a couple times, but she was really kicking
him. Like I remember—all I remember is she was kicking him a lot in the face and stuff like that.”
Therefore, we find that the circuit court had a sufficient basis to sentence petitioner to the same
aggregate sentence as her two co-defendants, as she engaged in the same violent conduct during
the robbery.
We now address the subjective test and note that “[i]n making the determination of whether
a sentence shocks the conscience, we consider all of the circumstances surrounding the offense.”
State v. Adams, 211 W. Va. 231, 233, 565 S.E.2d 353, 355 (2002). Petitioner argues that her case
is similar to the situation in Cooper where we reversed a forty-five year sentence for robbery
imposed upon a nineteen-year-old homeless man. The State counters that Cooper is distinguishable
because petitioner in the instant case was thirty-two years old at the time of the crimes and older
than her co-defendants. In addition, while the victim in Cooper fully recovered from his injuries,
see 172 W. Va. at 268, 303 S.E.2d at 852, the victim in the instant case suffered permanent injuries.
As the record reflects that petitioner brutally attacked the victim, we find that it does not shock the
conscience of this Court and society for petitioner to serve an aggregate term of forty-three to fifty-
five years of incarceration for her convictions.
With regard to the objective test set forth in Syllabus Point 5 of Wanstreet, we have stated:
The first consideration of the objective test is the nature of the offense for which
the appellant was convicted and the legislative purpose behind the statutory
punishment. As we just noted, the crime for which the appellant was convicted was
certainly of a violent nature. In addition, we have previously observed that
“[a]ggravated robbery in West Virginia has been recognized as a crime that
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involves a high potentiality for violence and injury to the victim involved.” State
v[.] Ross, 184 W.Va. 579, 582, 402 S.E.2d 248, 251 (1990). As a result, the
Legislature has provided circuit courts with broad discretion in sentencing
individuals convicted of aggravated robbery or attempted aggravated robbery. In
fact, “‘[t]he Legislature chose not to deprive trial courts of discretion to determine
the appropriate specific number of years of punishment for armed robbery, beyond
ten.’” State v. Woods, 194 W.Va. 250, 254, 460 S.E.2d 65, 69 (1995) [(]quoting
State ex rel. Faircloth v. Catlett, 165 W.Va. 179, 181, 267 S.E.2d 736, 737
(1980)[)].
State v. Williams, 205 W. Va. 552, 555, 519 S.E.2d 835, 838 (1999). In Williams, this Court
considered sentences for robbery that were upheld in numerous jurisdictions to find that “[g]iven
the offenses involved in the cases cited above, and in light of the respective sentences imposed,
we believe that the appellant’s sentence in the case sub judice is constitutionally proportionate to
the character and degree of the offense for which she was convicted.” Id. at 558, 519 S.E.2d at
841. Applying the principles set forth in Williams to the facts of the instant case and petitioner’s
sentences imposed by the circuit court, we conclude that petitioner’s sentence was constitutionally
proportionate to the character and degree of the offenses for which she was convicted. Therefore,
we find no error in the circuit court’s October 7, 2019, resentencing order.
For the foregoing reasons, we affirm the circuit court’s October 7, 2019, resentencing
order.
Affirmed.
ISSUED: March 16, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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