1 STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia, Plaintiff Below, Respondent

vs) No. 13-0310 (Wirt County 12-F-16)

Dustin Shawn Cottrell, Defendant Below,

Petitioner

MEMORANDUM DECISION

Petitioner Dustin Cottrell, by counsel G. Brad ley Frum, appeals the Circuit Court of Wirt County’s February 19, 2013, order sentencing him to a term of incarceration of one to five years following his guilty plea to one count of manuf acturing a controlled substance, marijuana. The State, by counsel Laura Young, file d a response. On appeal, petiti oner alleges that the circuit court erred in denying his request for alternative sentencing and that his sentence constitutes a violation of double jeopardy.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the de cisional process would not be significantly aided by oral argument. Upon considerat ion of the standard of review , the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudici al error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate

Procedure.

In September of 2012, a Wirt County Grand Jury indicted petitioner on one count of manufacturing a controlled substance after petiti oner was arrested for cultivating marijuana. In December of 2012, petitioner entered into a plea agreement whereby he pled guilty to one count of manufacturing a controlled substance, mariju ana. The State agreed to recommend probation if petitioner’s pre-sentence inve stigation report was favorable . During the pre-sentence investigation, it was discovered that petitioner was convicted in 1997 of first degree sexual assault, and the circuit court determined that petitioner never completed mandatory sex offender

treatment related to that convic tion. Further, the pre- sentence investigation report indicated that petitioner pled guilty to four misdemeanors since 1997. At sentenci ng, the circuit court denied petitioner’s request for probation or home in carceration and sentenced him to a term of

incarceration of one to five years by order en tered February 19, 2013. It is from this order that petitioner appeals

Upon our review, the Court fi nds no error in regard to the circuit court denying petitioner’s request for a lternative sentencing, and we further fi nd that petitioner’s sentence does not constitute a violation of the protection agai nst double jeopardy. To begin, West Virginia Code 

### FILED

October 21, 2013
RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 §§ 62-12-3 and 62-11B-4(a) grant circ uit courts discretion in orde ring a defendant to serve a sentence on probation or home incarceration, respect ively. In the present cas e, the circuit court denied petitioner’s request for alternative sent encing because, after reviewing petitioner’s presentence investigation report and lengthy criminal history, it found that he was likely to commit another crime. Upon our review, we find no abuse of discretion in denying petitioner alternative sentencing and imposing a se ntence of incarceration.

In imposing sentence, the circui t court sentenced petitioner to a term of incarceration of one to five years. Pursuant to West Virginia Code § 60A-4-401(a), a ny person convicted of manufacturing a Schedule I narcotic “may be impr isoned in the State correctional facility for not less than one year nor more than fifteen years . . . .” 1 We have previously 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 appe llate 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). Upon our review, we find that petitioner’s sentence is not appropriate for review because it was within the applicable statutory limits a nd not based on any impermissible factor.

While petitioner argues that his failure to obtain mandatory sex offender treatment pursuant to his prior conviction fo r first degree sexual assault consti tutes an impermissible factor upon which to base his sentence, the Court disa grees. According to Rule 32(b) of the West Virginia Rules of Criminal Procedure, in impos ing sentence, circuit c ourts may consider the defendant’s pre-sentence investig ation report, which includes th e defendant’s prior criminal history. In the current matter, this report c ontained information concerning petitioner’s prior conviction for first degree sexual as sault. The circuit court further noted that peti tioner failed to complete mandatory sex offender treatment pursua nt to that conviction. The circuit court was within its right to consider petitioner’s prior failure to complete this mandatory treatment in determining petitioner’s current sentence, as it speaks directly to pet itioner’s willingness and ability to comply with the terms of a potential alternative sentence. As such, we find that this does not constitute an impermissible factor for the purposes of imposing sentence.

Further, the Court finds no merit in petitione r’s argument that basing his sentence in the current matter, in part, upon his failure to co mplete the mandatory sex offender treatment constitutes a violation of his protection agains t double jeopardy. We have previously held that “[t]he strength of a double jeopardy claim is whether a defendant is facing multiple punishment for the same course of conduct.” Syl. Pt. 4, in part, State v. Sears , 196 W.Va. 71, 468 S.E.2d 324 (1996). The circuit court in this matter imposed sentence for the crime of manufacturing a controlled substance, not the crime of first degree se xual assault. It is clear that petitioner is not facing multiple punishments for the same course of conduct, but rather his prior criminal history and failure to obtain mandatory sex offender treatment was considered in imposing sentence in the current matter. For these reasons, we find no violation of petitione r’s right against double jeopardy.

1 Pursuant to West Virginia C ode § 60A-2-204(d)(1), marihuana is a Schedule I narcotic.3 For the foregoing reasons, the circuit court’ s February 19, 2013 sentencing order is hereby

affirmed.

Affirmed.

ISSUED : October 21, 2013

CONCURRED IN BY :

Chief Justice Brent D. Benjamin

Justice Robin Jean Davis Justice Margaret L. Workman

Justice Menis E. Ketchum Justice Allen H. Loughry II