State of West Virginia v. Clifton D. Tasker Jr.

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia, FILED
Plaintiff Below, Respondent January 17, 2020
EDYTHE NASH GAISER, CLERK
vs.) No. 18-0660 (Jefferson County CC-19-2018-F-10) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Clifton D. Tasker Jr.,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Clifton D. Tasker Jr., by counsel Peter A. Pentony, appeals the Circuit Court of
Jefferson County’s July 13, 2018, order sentencing him to an indeterminate term of five to
eighteen years of incarceration for his conviction of second-degree robbery. The State of West
Virginia, by counsel Benjamin F. Yancey III, filed a response. Petitioner filed a reply. On appeal,
petitioner argues that the circuit court abused its discretion in imposing a sentence that was
disproportionate to his crime.
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 December of 2017, the grand jury indicted petitioner on one count of second-degree
robbery and one count of conspiracy to commit second-degree robbery. On March 7, 2018, the
State offered a plea agreement to petitioner wherein he would plead guilty to second-degree
robbery, and in return, the State would dismiss the count of conspiracy to commit second-degree
robbery. Further, the State agreed not to seek to enhance petitioner’s sentence pursuant to West
Virginia Code § 61-11-19 as he had a prior felony conviction. Lastly, there was no agreement
regarding sentencing. In June of 2018, petitioner accepted the plea agreement and pled guilty to
second-degree robbery.1 In return, the State dismissed the remaining count of conspiracy to
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Pursuant to West Virginia Code § 61-2-12(b), a person convicted of second-degree
robbery “shall be confined in a correctional facility for not less than five years nor more than
eighteen years.”
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commit second-degree robbery. A presentence investigation report was completed on June 29,
2018, and petitioner filed a motion for probation on July 6, 2018.
On July 9, 2018, the circuit court held a sentencing hearing wherein petitioner testified, in
addition to several witnesses who testified on his behalf. The circuit court reviewed the presentence
investigation report and heard the arguments of counsel. Ultimately, the circuit court denied
petitioner’s motion for probation and sentenced petitioner to an indeterminate term of five to
eighteen years of incarceration for his conviction of second-degree robbery. The circuit court
entered a sentencing order reflecting its decision on July 13, 2018. It is from this order that
petitioner now appeals.
On appeal, petitioner argues that his sentence is unconstitutionally disproportionate to his
crime. Petitioner asserts that he was “dope sick” and “unarmed” when he committed second-
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degree robbery and, therefore, the circuit court’s imposition of his five-to-eighteen-year prison
sentence “shocks the conscience.” However, we decline to review the sentence under
proportionality principles.3 Petitioner concedes that his sentence is within the applicable statutory
guidelines and he fails to allege that the circuit court relied on an impermissible factor in imposing
its sentence. As this Court has long held, “[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). Accordingly, petitioner is not
entitled to appellate review.
Regarding the circuit court’s denial of petitioner’s request for probation, we note that “the
matter of probation is within the sound discretion of the trial court.” State v. Miller, 172 W. Va.
718, 720, 310 S.E.2d 479, 481 (1983). On appeal, petitioner concedes that the circuit court based
its decision upon his “history of increasing crimes and escalating violence,” and he acknowledges
that “[p]robation is a matter of grace and not a right.” Syl. Pt. 1, State v. Rose, 156 W. Va. 342,
346, 192 S.E.2d 884, 887 (1972). Accordingly, we find that petitioner is entitled to no relief.
For the foregoing reasons, the circuit court’s July 13, 2018, sentencing order is hereby
affirmed.
“Article III, Section 5 of the West Virginia Constitution, which contains the cruel and
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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.’” Syl. Pt. 8, State v. Vance, 164 W. Va. 216, 262 S.E.2d 423(1980).
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Petitioner argues that this Court has recognized that the proportionality standards can
“theoretically” apply to any sentence. Syl. Pt. 4, Wanstreet v. Bordenkircher, 166 W. Va. 523, 276
S.E.2d 205 (1981). However, petitioner fails to acknowledge the full context of that holding, which
provides 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.” Id. Because this case does not
involve a crime with no fixed maximum punishment or a life recidivist sentence, we find that
petitioner is not entitled to appellate review regarding the proportionality of his sentence.
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Affirmed.
ISSUED: January 17, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
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