State of West Virginia v. Lewis H. Allen, Jr.

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia, FILED
Plaintiff Below, Respondent September 19, 2016
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
vs) No. 15-1144 (Fayette County 15-F-56) OF WEST VIRGINIA
Lewis H. Allen Jr.,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Lewis H. Allen Jr., by counsel James Adkins, appeals the Circuit Court of
Fayette County’s October 26, 2015, order sentencing him to prison for two to thirty years and
ordering him to pay a fine for one count of delivery of a Schedule II narcotic. The State of West
Virginia, by counsel David Stackpole, filed a response. On appeal, petitioner argues that
doubling of his sentence pursuant to West Virginia Code 60A-4-408, without prior written
notice, violates his due process rights.
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 May of 2015, a Fayette County grand jury indicted petitioner on one count of delivery
of a Schedule II narcotic. Thereafter, petitioner pled guilty to one count as charged in the
indictment. As part of the plea, the State agreed to recommend at sentencing that petitioner’s
sentence not be doubled for his prior drug convictions.1 During the plea colloquy, the circuit
court thoroughly explained petitioner’s rights and explained that it was within the circuit court’s
discretion to double petitioner’s sentence based upon his prior drug convictions.
In October of 2015, the circuit court held a sentencing hearing, during which it denied
petitioner’s motion for probation. Ultimately, the circuit court sentenced petitioner to a term of
incarceration of two to thirty years to be served consecutively to his pending federal charges. The
circuit court also fined petitioner $5000. This appeal followed.
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Petitioner’s criminal history consists of the following crimes: (1) 2009 – federal firearms
possession and possession of drugs; (2) 2001 – delivery of a controlled substance; (3) 1997 –
sale/transfer of cocaine base; and (4) 1993 – shoplifting.
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On appeal, petitioner alleges that the doubling of his sentence pursuant to West Virginia
Code § 60A-4-408, without prior written notice violates his due process rights. We disagree. The
Court has often explained 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.’ Syllabus
Point 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).” Syl. Pt. 3, State v.
Georgius, 225 W. Va. 716, 717, 696 S.E.2d 18, 19 (2010).
This Court has previously considered whether a defendant is required to receive written
notice that his sentence may be enhanced based upon a prior drug conviction(s). This Court held
in syllabus point four of State v. Rutherford, 223 W.Va. 1, 672 S.E.2d 137 (2008) that “West
Virginia Code § 60A-4-408 (1971), which permits sentencing enhancement for certain repeat
drug offenders based solely on the fact of a previous drug conviction, does not violate the due
process protections found in Article III, § 10 of the West Virginia Constitution.” Id. at 2, 672
S.E.2d at 138. Simply put, “West Virginia Code § 60A-4-408, . . . requires only the fact of a
prior conviction prior to enhancement, and thus does not mandate additional procedural
safeguards.” Id. at 6, 672 S.E.2d at 142. While we note that petitioner was not given written
notice, the circuit court during the plea colloquy thoroughly explained petitioner’s rights and
explained, no less than four times, that his sentence may be enhanced based upon his prior drug
convictions. Accordingly, the circuit court’s enhancement of petitioner’s sentence pursuant to
West Virginia Code § 60A-4-408 was not error.
For the foregoing reasons, the circuit court’s October 26, 2015, order is hereby affirmed.
Affirmed.
ISSUED: September 19, 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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