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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. Bradley 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 manufacturing a controlled substance, marijuana. The 

State, by counsel Laura Young, filed a response. On appeal, petitioner 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 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 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 petitioner 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, marijuana. The State agreed to recommend probation if 

petitioner’s pre-sentence investigation 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 conviction. Further, the pre-sentence investigation report indicated that 

petitioner pled guilty to four misdemeanors since 1997. At sentencing, the circuit court denied 

petitioner’s request for probation or home incarceration and sentenced him to a term of 

incarceration of one to five years by order entered February 19, 2013. It is from this order that 

petitioner appeals 

Upon our review, the Court finds no error in regard to the circuit court denying 

petitioner’s request for alternative sentencing, and we further find that petitioner’s sentence does 

not constitute a violation of the protection against double jeopardy. To begin, West Virginia Code 

FILED 

October 21, 2013 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
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§§ 62-12-3 and 62-11B-4(a) grant circuit courts discretion in ordering a defendant to serve a 

sentence on probation or home incarceration, respectively. In the present case, the circuit court 

denied petitioner’s request for alternative sentencing 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 sentence of incarceration. 

In imposing sentence, the circuit court sentenced petitioner to a term of incarceration of 

one to five years. Pursuant to West Virginia Code § 60A-4-401(a), any person convicted of 

manufacturing a Schedule I narcotic “may be imprisoned 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 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). 

Upon our review, we find that petitioner’s sentence is not appropriate for review because it was 

within the applicable statutory limits and not based on any impermissible factor. 

While petitioner argues that his failure to obtain mandatory sex offender treatment 

pursuant to his prior conviction for first degree sexual assault constitutes an impermissible factor 

upon which to base his sentence, the Court disagrees. According to Rule 32(b) of the West 

Virginia Rules of Criminal Procedure, in imposing sentence, circuit courts may consider the 

defendant’s pre-sentence investigation report, which includes the defendant’s prior criminal 

history. In the current matter, this report contained information concerning petitioner’s prior 

conviction for first degree sexual assault. The circuit court further noted that petitioner failed to 

complete mandatory sex offender treatment pursuant 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 petitioner’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 petitioner’s argument that basing his sentence in the 

current matter, in part, upon his failure to complete the mandatory sex offender treatment 

constitutes a violation of his protection against 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 sexual 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 petitioner’s right against double 

jeopardy. 

                                                            

1 Pursuant to West Virginia Code § 60A-2-204(d)(1), marihuana is a Schedule I narcotic. 
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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