STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED State of West Virginia, 

June 24, 2013 Plaintiff Below, Respondent RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 vs) No. 12-0867 (Summers County 11-F-14) 

Clayton Owen Peyatt, 

Defendant Below, Petitioner 

MEMORANDUM DECISION 

Petitioner Clayton Owen Peyatt, by counsel Douglas H. Arbuckle, appeals the Circuit 

Court of Summers County’s March 6, 2012, order denying’s his motion for modification or 

reduction of sentence.1 The State of West Virginia, by counsel Marland Turner, filed its 

response. 

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. 

Petitioner, Clayton Owen Peyatt, was indicted for one count of burglary and seven counts 

of fraudulent use of an access device. He pled guilty to two counts of the felony offense of the 

attempted use of an access device and one count of the misdemeanor of battery on October 11, 

2011. When petitioner appeared for sentencing on January 23, 2012, the circuit court was 

advised by counsel for petitioner that the presentence report inaccurately reported that petitioner 

had pled guilty to two counts of fraudulent use of an access device. The circuit court 

acknowledged the error and proceeded to sentence petitioner for the statutory terms of 

incarceration for the crimes that he pled to, specifically, two counts of attempted use of an access 

device and one count of battery. Petitioner was sentenced to one to three years of incarceration 

for each count of attempted use of an access device and one year of incarceration for the battery. 

Petitioner filed a motion for modification or reduction of sentence, citing inaccuracies 

concerning the charges upon which he was sentenced. He also cites additional inaccuracies in the 

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On July 6, 2012, the circuit court entered a corrected order extending the time to file the 

petition for appeal until July 6, 2012. In addition, while it is not included in the appendix filed 

with this Court, it appears that petitioner filed a pro se motion for reconsideration of his sentence, 

as the circuit court entered an “Order Denying Defendant’s Pro Se Motion for Reconsideration 

of Sentence” on June 28, 2012. That denial is not part of this appeal. 

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original presentence report. However, petitioner’s single page motion filed with the circuit court 

lacks sufficient specificity to determine what “additional inaccuracies” petitioner claims exist in 

that report. During the February 13, 2012, hearing on petitioner’s motion for modification or 

reduction of sentence, the circuit court admitted there were errors in the presentence report but 

stated that those problems were corrected at the time of the original sentencing. The court also 

stated that it was taking judicial notice that some of the matters set forth in the criminal record 

included in the presentence report were not actually criminal records, as they relate to civil 

matters in magistrate court. After considering that information, the circuit court denied 

petitioner’s motion. It is from that order that petitioner appeals. 

In his petition for appeal, petitioner argues that due to an incorrect presentence report, the 

circuit court had insufficient accurate information to properly sentence petitioner. Petitioner 

contends that the presentence report was prepared based upon the charge of fraudulent use of an 

access device, rather than the crime of attempted fraudulent use of an access device. He points 

out that these crimes have different penalties. Petitioner argues that when this error was brought 

to the circuit court’s attention at sentencing, the court should have continued sentencing and 

referred the matter back to the probation officer for a revised report. However, petitioner admits 

that the circuit court applied the correct maximum sentence for the offenses to which petitioner 

pled. 

“‘Sentences 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. 8, State v. Sulick, No. 11-0043, 2012 WL 

602889 (W.Va. Feb. 23, 2012). “‘The Supreme Court of Appeals reviews sentencing orders . . . 

under a deferential abuse of discretion standard, unless the order violates statutory or 

constitutional commands.’ Syllabus point 1, in part, State v. Lucas, 201 W. Va. 271, 496 S.E.2d 

221 (1997).” Syl. Pt. 1, Id. Petitioner admits that the circuit court applied the correct maximum 

sentence for the offenses to which petitioner pled, two counts of the felony offense of the 

attempted use of an access device and one count of the misdemeanor of battery. There is no 

allegation or evidence that the circuit court considered an impermissible factor when imposing 

the statutory sentences. We, therefore, find that the circuit court did not abuse its discretion in 

imposing sentence or denying petitioner’s motion for modification or reduction of sentence. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: June 24, 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 

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