State of West Virginia v. David Eugene Huskey

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia, FILED
Plaintiff Below, Respondent
April 9, 2018
EDYTHE NASH GAISER, CLERK
vs.) No. 17-0759 (Upshur County 17-F-67) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
David Eugene Huskey,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner David Eugene Huskey, by counsel Melissa T. Roman, appeals the Circuit
Court of Upshur County’s August 7, 2017, order sentencing him to one to five years of
incarceration following his conviction of failure to provide changes in sex offender registration
information. The State of West Virginia, by counsel Shannon Frederick Kiser, filed a response in
support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in
denying his request for alternative sentencing.
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.
In May of 2017, petitioner entered into a plea agreement whereby he waived his right to
an indictment and pled guilty to one count of failure to provide changes in sex offender
registration information in violation of West Virginia Code § 15-12-8(c).1 The circuit court
accepted petitioner’s guilty plea and ordered that the probation department perform a presentence
investigation report. Petitioner filed a motion for alternative sentence, which asserted that he was
remorseful and was actively seeking treatment for his alcohol issues. On July 7, 2017, the circuit
court granted petitioner’s motion to continue sentencing and allowed petitioner more time to
secure treatment. However, petitioner was unable to secure treatment.
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West Virginia Code § 15-12-8(c), sets forth the penalty for failure to provide changes in
sex offender registration information and provides that an offender “is guilty of a felony and,
upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one
year nor more than five years.”
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In August of 2017, the circuit court held a sentencing hearing and denied petitioner’s
motion for alternative sentencing. The circuit court sentenced petitioner to not less than one nor
more than five years of incarceration with credit for one hundred and forty-six days served.
Petitioner appeals this August 7, 2017, sentencing order.
“‘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). On appeal, petitioner contends that the circuit court erred in
denying his request for alternative sentencing because he was a good and proper candidate for
probation or home incarceration. In support, petitioner states that he was working and actively
seeking treatment for his alcohol dependency since he entered his guilty plea. However, this
Court has previously held “[p]robation is a matter of grace and not a matter of right.” Syl. Pt. 1,
State v. Rose, 156 W.Va. 342, 192 S.E.2d 884 (1972). Therefore, petitioner is not entitled to
alternative sentencing. Accordingly, we find no error in the circuit court’s denial of alternative
sentencing.
Petitioner additionally argues that the imposition of incarceration is disproportionate to
the offense, excessively harsh, and in violation of Article III, Section 5 of the West Virginia
Constitution. We have 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.’ 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, 696 S.E.2d 18 (2010). It is undisputed that petitioner’s sentence was
within statutory limits. Pursuant to West Virginia Code § 15-12-8(c), the possible penalty for
petitioner’s guilty plea was imprisonment for not less than one year nor more than five years and
petitioner received that penalty. Thus, to be subject to appellate review, petitioner must identify
some impermissible factor upon which the circuit court based his sentence. Petitioner did not
identify any such impermissible factors in his brief on appeal. Accordingly, we find that the
circuit court did not err in imposing sentence.
For the foregoing reasons, the circuit court’s August 7, 2017, order sentencing petitioner
is hereby affirmed.
Affirmed.
ISSUED: April 9, 2018
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Justice Elizabeth D. Walker
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