### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia, Plaintiff Below, Respondent 

### FILED
June 11, 2018 vs.) No. 17-0606 (Berkeley County 15-F-183) EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA Elan Bell-Veney, Defendant Below, Petitioner



### MEMORANDUM DECISION

Petitioner Elan Bell-Veney, by counsel Sher man L. Lambert Sr., appeals the Circuit Court of Berkeley County’s June 12, 2017, order sent encing him to an effective term of eight to forty years of incarceration follo wing his malicious assault convictions. The State, by counsel Robert L. Hogan, filed a response. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in considering impermissible factors at sentencing. Namely, the circuit court failed to follow an expert opinion that peti tioner should be placed on home incarceration and should not have considered petiti oner’s prior crimin al convictions.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21

of the Rules of A ppellate Procedure.

Petitioner was indicted for ten counts of malicious assault on October 28, 2015. On March 13, 2017, the parties entered into a plea agreement whereby pe titioner agreed to enter an Alford 1 guilty plea to four counts of malicious assa ult in exchange for the State’s dismissal of the remaining six counts of malici ous assault. The State further ag reed not to file a recidivist

action and to remain si lent at sentencing.

On June 5, 2017, the parties appeared for a plea and sentencing hearing. Petitioner expressed his desire to plead guilty as outlined in the parties’ agreement, and the State provided a factual basis for the plea. Specifically, the Stat e submitted that it could show that petitioner entered a bar with several friends on June 27, 2014. Several female patrons of the bar, some of whom were with petitioner, began fighting. Petitione r and his friends were asked to leave the bar. Petitioner proceeded to do so, but then returned , and video surveillance shows him with a knife

in his hand. The State indicated th at the video shows petitioner “pl unging that knife into the back of” another individual. Several pe ople rush into petitioner’s vicinity, but they are seen slowly

1 See North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (permitting a criminal defendant to plead guilty and accept a prison sentence without admitting guilt).

1retreating. “And they have one thin g in common and that’s that they’re all bleeding from stab wounds[,] which led up to the total ten counts of malicious assault charged[.]” The evidence would also demonstrate that peti tioner was the only person seen w ith a knife. The four counts to which petitioner pled guilty covered the four se parate victims of petitioner’s stabbing. Finally,

the State indicated that it could show that, after identifying peti tioner as the perpetrator, law enforcement officers responded to his home, but an individual matching pe titioner’s description ran away from the home and could not be appreh ended at that time. Ultimately, petitioner was apprehended in Washington, D.C., several months later on a fugitive warrant.

The circuit court found that there was a factual basis to support the entry of petitioner’s

four Alford guilty pleas, that he understood the nature of the offenses to which he was pleading guilty and the consequences of the pleas, and that he entered his pleas freely and voluntarily. The court then proceeded to take ev idence in aid of sentencing.

Petitioner offered Dr. Catherine J. Ward as an expert witness. Dr. Ward, who had evaluated petitioner and submitted a written re port of her findings prior to sentencing, was qualified without objection as an expert in clinical and forens ic neuropsychology. Dr. Ward noted that petitioner ha d reported several traumas in his life, including shooting attempts, bullying, physical altercations, a nd robberies at gunpoint in early adulthood. Dr. Ward testified that these traumas caused chronic post-traumatic stress disorder in petitioner, which, in turn, caused him to be “chronically on the flight or fight situation” and “trying to figure out if he’s safe.” As a result, Dr. Ward opined that petitioner was in n eed of an intensive outpatient treatment program and home confinement because “if he goes back to incarceration[,] it’s not going to give him the same opportunities to heal.”

Following Dr. Ward’s testimony, the circuit cour t set forth the “issues of fact” it deemed relevant to the imposition of pe titioner’s sentence. These factor s included petitioner’s prior convictions, including drug possess ion, prohibited person in possessi on of a firearm, wanton endangerment, and involuntary manslaughter; a pre-plea investigation report; the factual circumstances surrounding the instant malicious wounding charges, which the circuit court noted “sounds like you’re trying to kill somebody if you keep stabbing and stabbing and stabbing;” the victims’ injuries, monetary losse s, and urging of incarceration; a nd the community sentiment that “[t]he penitentiary would be appropriate disposition in this matter given the nature of the [instant] offenses and given th e [petitioner’s] criminal histor y.” The circuit court sentenced petitioner to not less than two years nor more than ten years of incarcerati on for each of the four malicious wounding convictions, and it ordered that these sentences be served consecutively “so that [petitioner] serves two to te n years in the penitentiary for each of the victims in this case.”

Petitioner’s sentence was memorialized in the circuit court’s June 12, 2017, “Plea and Sentencing Order.” It is from this order that petitioner appeals.

This Court reviews sentencing orders “under a deferential abuse of discretion standard,

unless the order violates stat utory or constitutional comma nds.” Syl. Pt. 1, in part, State v.

Adams , 211 W.Va. 231, 565 S.E.2d 353 (2002) . We have also held that “[s]entences imposed by the trial court, if within statutory limits and if not based on some [im]pe rmissible factor, are not

2subject to appellate review.” 2 Syl. Pt. 4, State v. Goodnight , 169 W.Va. 366, 287 S.E.2d 504 (1982). In sum, “[i]t is not the prop er prerogative of this Court to substitute its judgment for that of the trial court on sentencing matters, so long as the appellant’s sentence was within the statutory limits, was not based upon any impermissi ble factors, and did not violate constitutional principles.” State v. Georgius , 225 W.Va. 716, 722, 696 S.E.2d 18, 24 (2010).

Petitioner contends on appeal that the circ uit court erred in di sregarding Dr. Ward’s expert testimony at sentencing. 3 Petitioner argues that Dr. Ward qualified as an expert witness and provided “concrete medical reasoning regardi ng the neurological factors of [p]etitioner’s behavior being linked to the underlying criminal charges.” The circuit co urt, however, failed to accord this expert testimony the weight petitioner believes was warranted. Petitioner states that the sentencing order “provides evidence that the tr ial court refused to give any weight to Dr. Ward’s testimony or explain why Dr. Ward’s tes timony should not be considered by the court.”

Petitioner concludes that “the l ack of comment and succinct judi cial reasoning of the circuit court to omit Dr. Ward’s professional opinions contained in her written Report and Executive Summary . . . from the four corners of the se ntencing factor was an impermissible factor.”

We find no abuse of discretion in the circuit court’s failure to follow or adopt Dr. Ward’s

recommendation of home incarceration. Petitioner ha s not cited to any law, nor could he, that mandates a circuit court implement an expert witn ess’s opinion as to disposition. To the contrary,

the circuit court was vest ed with the discretion to evaluate Ms. Ward’s testimony and accord it the deserving weight. See Gentry v. Mangum , 195 W.Va. 512, 529, n.26, 466 S.E.2d 171, 188,

n.26 (1995) (noting that evaluating witness credibility and the wei ght of his or her testimony are determinations left to the factfinder). The circuit court noted in its sentencing order that Dr. Ward testified, but it nonetheless ordered incarceration given the information contained within the pre-plea investigatio n report, petitioner’s “substantial a nd violent criminal history,” other testimony, and the statements of counsel. Accord ingly, the failure to adopt Ms. Ward’s opinion regarding home incarceration does not amount to an impermissible factor. 4

Petitioner also argues on appeal that the circu it court’s consideration of his prior criminal convictions amounts to an impermissibl e factor. In support, petitioner cites State v. Smith , 238 N.W.2d 662 (N.D. 1976), wherei n the Supreme Court of North Dakota noted that pending

2 It is undisputed that petitioner’s sent ences were within statutory limits.

3 Petitioner repeatedly refers to the circuit court’s “exclusion” of Dr. Ward’s expert opinion. Without question, this opin ion was admitted at sentencing. Such characterization of the

circuit court’s action is inaccurate , and petitioner’s citation to rules and laws relative to the admissibility of expert testimony is inapposite here.

4 We also note that a circuit court retains discretion in or dering home incarceration: “As a condition of probation or bail or as an alternative se ntence to another form of incarceration for any criminal violation of this code over whic h a circuit court has juri sdiction, a circuit court may order an offender confined to the offender’s hom e for a period of home incarceration.” W.Va. Code § 62-11B-4(a) (emphasis added). Thus, the decision not to orde r home incarceration was similarly within the circuit court’s discretion.

3charges and those of which a defe ndant has been acquitted may not be considered in determining an appropriate sentence. Id. at 671. Petitioner acknowledges that this case is not controlling, but submits that “the legal principles are the same.” The legal principles ar e not the same, however. Petitioner does not argue that the circuit court considered pending charges or those of which he was acquitted. Rather, the circuit c ourt considered petitioner’s prior convictions , and we have previously held that a sentencing court may consider a defenda nt’s prior records. See Syl. Pt. 2,

State v. Buck , 173 W.Va. 243, 314 S.E.2d 406 (1984) (hol ding that a sentencing court may consider codefendants’ respective involvement in the crime, prior re cords, rehabilitative potential, and lack of remorse). 5

For the foregoing reasons, the circuit court’ s June 12, 2017, sentenci ng order is hereby

affirmed.

Affirmed.

ISSUED: June 11, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman

Justice Robin Jean Davis

Justice Menis E. Ketchum

Justice Elizabeth D. Walker

Justice Loughry, Allen H., II suspende d and therefore not participating.

5 Petitioner filed a reply, in wh ich he noted that th e judge who presided at sentencing had recently filed an application for disability retirement. Petitioner further characterized the trial court’s conduct at sentencing as “bizarre” and inclusive of a “raging rant” about petitioner’s criminal history. Therefore, petitioner argues, the sentencing judge was apparently “suffering from a disability, which resulted in his use of impermissible fact ors.” A review of the plea and sentencing hearing transcript doe s not support petitioner’s characte rization of the trial court’s conduct as “bizarre,” and there was no “raging rant.” More im portantly, petitioner fails to substantiate the assertion that the circuit judge su ffered from a disability that caused him to rely on impermissible factors.

Petitioner also argues in his re ply that “the sentence impo sed . . . violated [his] due process rights. The United States Supeme Court has recognized a State’s compelling interest in maintaining the integrity of the [j]udiciary.” Asid e from citations to law in which courts have found due process violations, petiti oner fails to apply this law, analogize to it, or otherwise fashion an argument to support his assertion th at his due process ri ghts were violated.

Because petitioner’s argument concerning the circuit judge’s retirement and its alleged effects on his case is unsupported, and because he makes no cogent argument relative to any claimed due process violation, these grounds are not properly before this Court. See W.Va. R. App. P. 10(g), (d), and (c)(7) (requiring a re ply brief to, among other things, “contain an argument exhibiting clearly the point s of fact and law presented, . . . the authorities relied on, . . . [and] appropriate and specific cita tions to the record on appeal”).

4