STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

State of West Virginia, FILED 

Plaintiff Below, Respondent April 16, 2013 

RORY L. PERRY II, CLERK 

vs.) No. 12-0436 (Berkeley County 11-F-118 & 11-F-169) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Tyler S. Munson, 

Defendant Below, Petitioner 

MEMORANDUM DECISION 

Petitioner Tyler Munson, by counsel Neil J. Zahradnik, appeals the Circuit Court of 

Berkeley County’s sentencing order entered on December 27, 2012. The State of West Virginia, 

by counsel Cheryl K. Saville, has 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 was indicted on one count of daytime burglary, two counts of grand larceny, 

and one count of burglary. In a separate action, petitioner waived indictment on one count of aid 

in concealing stolen property. By non-binding plea, petitioner pled guilty to one count of daytime 

burglary, one count of grand larceny, and one count of aid in concealing stolen property. As a 

condition of the plea, the remaining charges were dismissed and the State agreed to recommend 

that petitioner’s sentence be delayed pending completion of a program at the Anthony Center. 

Petitioner was sentenced to confinement for not less than one year nor more than ten years on 

each count, to be served consecutively. Additionally, petitioner was ordered to pay $1,611 in 

restitution. 

On appeal, petitioner argues that the circuit court violated the proportionality principle 

contained in Article III, Section 5 of the West Virginia Constitution when he was sentenced to 

three consecutive indeterminate terms of incarceration of one to ten years each. Petitioner 

concedes that the sentences imposed are within the statutory limits and are not so excessive to 

shock the conscience. Petitioner simply argues the sentences are disproportionate to the nature of 

the crimes. Petitioner argues that the crimes involved are all nonviolent theft-related crimes and 

the aggregate value of the stolen goods does not justify the sentence imposed. 

“‘The Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse 

of discretion standard, unless the order violates statutory or constitutional commands.’ Syl. Pt. 1, 

in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).” Syl. Pt. 1, State v. James, 227 

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W.Va. 407, 710 S.E.2d 98 (2011). This Court has 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.” Syl. Pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982). 

Although the sentences in this matter are within the statutory limits, petitioner argues that his 

sentences violate the proportionality principle of the West Virginia Constitution. 

In the present case, petitioner’s sentences are within the statutory limits for daytime 

burglary pursuant to West Virginia Code § 61-3-11(b), grand larceny pursuant to West Virginia 

Code § 61-3-13(a), and aid in concealing stolen property pursuant to West Virginia Code § 61-3­

18. If a sentence is subject to appellate review, however, the Court must review it under the 

standards set forth in State v. Cooper, 172 W.Va. 266, 304 S.E.2d 851 (1983), and Syllabus Point 

5 of Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981): 

There are two tests to determine whether a sentence is so disproportionate to a 

crime that it violates our constitution. Accord, Stockton v. Leeke, 269 S.C. 459, 

237 S.E.2d 896, 897 (1977). The first is subjective and asks whether the sentence 

for the particular crimes shocks the conscience of the court and society. If a 

sentence is so offensive that it cannot pass a societal and judicial sense of justice, 

the inquiry need not proceed further. When it cannot be said that a sentence 

shocks the conscience, a disproportionality challenge is guided by the objective 

test we spelled out in Syllabus Point 5 of Wanstreet v. Bordenkircher, 166 W.Va. 

523, 276 S.E.2d 205 (1981): In determining whether a given sentence violates the 

proportionality principle found in Article III, Section 5 of the West Virginia 

Constitution, consideration is given to the nature of the offense, the legislative 

purpose behind the punishment, a comparison of the punishment with what would 

be inflicted in other jurisdictions, and a comparison with other offenses within the 

same jurisdiction. 

State v. Cooper, 172 W.Va. 266, 272, 304 S.E.2d 851, 857 (1983). Upon our review of the 

record, the Court finds that the petitioner’s sentences do not violate the West Virginia 

Constitution, as the sentences do not shock the conscience, nor are they disproportionate. 

For the foregoing reasons, we affirm the circuit court’s sentencing order. 

Affirmed. 

ISSUED: April 16, 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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