1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia, Plaintiff Below, Respondent

vs) No. 14-0726 (Putnam County 13-F-145)

Jason D. Fields, Defendant Below,

Petitioner



### MEMORANDUM DECISION

Petitioner Jason D. Fields, by counsel Timot hy J. LaFon, appeals the Circuit Court of Putnam County’s June 27, 2014, order sentencing him to thirty-years of incarceration following his guilty plea to first-degree robbery without the use of a firearm. The State, by counsel Kristine D. Raynes, filed a response. On appeal, petiti oner alleges that the circuit court abused its discretion by imposing a thirty-year sentence.

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.

In June of 2013, petitioner and a co-defendant allegedly robbed a gas station at gun point.

Petitioner was arrested and indicted in Nove mber 2013 for the felony offense of first-degree robbery in violation of West Virginia Code § 61-2-12. In February of 2014, petitioner and the State entered into a plea agreem ent whereby petitioner would plead guilty to a lesser included charge of the felony offense of first-degree ro bbery without the use of a firearm. The circuit court accepted petitioner’s guilty plea.

The circuit court held a sentencing hearing in June of 2014. At th e hearing, petitioner requested the minimum sentence of ten years impr isonment and further requested that he be placed in an in-patient drug addiction treatment facility. After petitioner’ s allocution, the State recommended the minimum sentence of ten year s imprisonment. The ci rcuit court reviewed petitioner’s pre-sentence investigat ion report and the victim’s impact statement. The circuit court imposed the following sentence: thirty-years ofincarceration for the felony offense of firstdegree robbery without the use of a firearm. Thereafter, by order entered in June of 2014, the circuit court sentenced petitioner to the same term s for purposes of appeal, and it is from that order that petiti oner appeals. 

### FILED

October 20, 2015

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 Petitioner’s sole argument on appeal is that the record does not suppor t the circuit court’s imposition of such a long term of incarceration. U pon our review, we find no error in the circuit court’s sentencing order. “The Supreme Court of Appeals reviews sent encing orders ... under a deferential abuse of discretion standard, unless the order violates statutory or constitutional

commands.” See State v. Head , 198 W.Va. 298, 301, 480 S.E.2d 507, 510 (1996). We have previously held that “‘[s]entences imposed by the tr ial court, if within statutory limits and if not based on some [im]permissible fa ctor, 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).

As to petitioner’s sentence for first-degree robbe ry, the Court has previo usly stated that

[t]he robbery by violence statute is one of the few criminal statutes in our jurisdiction that enables the court to se t a determinate sentence without reference to any statutory maximum limit. With the exception of the life recidivist statute

discussed in State v. Vance, 164 W.Va. 216, 262 S.E.2d 423 (1980), we do not believe that the disproportionality prin ciple can have any significant application other than to this type of sentencing statute.

State v. Manley, 212 W.Va. 509, 512–13, 575 S.E .2d 119, 122–23 (2002) (quoting Wanstreet v. Bordenkircher, 166 W.Va. 523, 531–32, 276 S.E.2d 205, 211 (1981)).

There are two tests to determine whether a sent ence is so disproportionate that it violates constitutional provisions . We have stated that

[t]he first is a subjective test and asks wh ether the sentence for a particular crime

shocks the conscience of th e Court and society. If the sent ence is so offensive that it cannot pass this test, then inquiry need proceed no further. When it cannot be

said that a sentence shocks the conscien ce, a disproportionality challenge should be resolved by more objective factors wh ich include the cons ideration of the nature of the offense, the defendant's past criminal history, and his proclivity to engage in violent acts.

State v. Ross , 184 W.Va. 579, 581–82, 402 S.E.2d 248, 250–51 (1990) (citing State v. Martin

, 177 W.Va. 758, 356 S.E.2d 629 (1987); State v. Glover , 177 W.Va. 650, 355 S.E.2d 631 (1987);

State v. Buck , 173 W.Va. 243, 314 S.E.2d 406 (1984)).

First, the thirty-year sentence imposed on petit ioner does not shock the conscience of this Court or society. While petitioner argues that there is no support in the record for his sentence, the record on appeal shows that petitioner and his co-defendant put on masks, entered a gas station, and robbed the cashier at gun point. The purpose of the robbery was to advance yet another illegal act: the purchase and consump tion of illegal drugs. Petitioner and his codefendant disposed of the gun, masks, and other ite ms of clothing that they were wearing on the day of the robbery, and they attempted to elude the police. Based on these facts, we find that a thirty-year term of incarceration is not offensive. Thus, we find no error in petitioner’s sentence.3 Second, the thirty-year sentence is not disproportionate given the nature of the offense, petitioner’s criminal history and ri sk of recidivism, as well as the impact statement of the victim. The penalty for first-degree robbery pursuant to West Virginia Code § 61–2–12(a)(1) is a term of incarceration of “not less than ten years.” More over, we find the sentence imposed to be in line

with other sentences upheld by this Court. 1 As such, we find no error in petitioner’s sentence.

For the foregoing reasons, the circuit court’ s June 27, 2014, sentenci ng order is hereby

affirmed.

Affirmed.

ISSUED : October 20, 2015

CONCURRED IN BY :

Chief Justice Margaret L. Workman

Justice Robin Jean Davis Justice Brent D. Benjamin

Justice Menis E. Ketchum Justice Allen H. Loughry II

1 See State v. Tyler , 211 W.Va. 246, 565 S.E.2d 368 ( 2002) (upholding thirty-year sentence for first degree robbe ry involving use of firearm); State v. King , 205 W.Va. 422, 518 S.E.2d 663 (1999) (approving defendant ’s eighty-four year sentence after breaking into elderly woman’s home, threatening her with wea pon, with previous criminal history); State v. Mann

, 205 W.Va. 303, 518 S.E.2d 60 (1999) (per curiam) (a ffirming thirty-year sentence for robbing store clerk at gun point).