1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia,

Plaintiff Below, Respondent

vs.) No. 20-0977 (Marion County CC-24-2020-F-15) 

Brian Randall Gatto,

Defendant Below, Petitioner

MEMORANDUM DECISION

Petitioner Brian Randall Gatto, by counsel J. Bryan Edwards and C. Anthony Gutta III, 

appeals the Circuit Court of Marion County’s November 25, 2020, order sentencing him to not 

less than twenty-five nor more than one hundred years of incarceration for his first-degree sexual 

assault conviction; not less than ten nor more than twenty years for each of his four sexual abuse 

by a parent, guardian, custodian or person in a position of trust to a child convictions; and not less 

than five nor more than twenty-five years for each of his two first-degree sexual abuse convictions.

Respondent State of West Virginia, by counsel Patrick Morrisey and Mary Beth Niday, filed a 

response. Petitioner filed a reply.

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 affirming the circuit court’s order is appropriate under Rule 21 of the 

Rules of Appellate Procedure.

Petitioner was indicted on February 6, 2018 (“first indictment”), for two counts of firstdegree sexual assault; four counts of sexual abuse by a parent, guardian, custodian or person in a 

position of trust to a child; and two counts of first-degree sexual abuse. The matter was assigned 

Case Number 18-F-43. During the pendency of that proceeding, the circuit court granted 

petitioner’s request for his victim’s mental health and counseling records and ordered the State “to 

obtain the full and complete mental health and counseling records of the alleged victim and have 

the same served upon the [c]ourt under seal” for in camera review. Following its in camera review 

of the received records, the court concluded that they were discoverable and permitted them to be 

reviewed by petitioner with his counsel and an appropriate expert. In addition, Amy Burdette and 

Family Services were later specifically ordered to provide their records of the victim’s treatment 

to the court under seal.

FILED

January 12, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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In January of 2019, the parties jointly tendered a proposed order continuing trial and 

charging petitioner with the continuance of the current term of court to the February of 2019 term 

“because [petitioner] is seeking the medical records of the victim in this matter,” which the court 

entered.

Later in 2019, petitioner moved to dismiss his first-degree sexual assault charges. First, the 

indictment specified a date range within which the alleged sexual assaults occurred that would 

place the victim between six and thirteen years old. As first-degree sexual assault is defined to 

occur when the perpetrator “being fourteen years old or more, engages in sexual intercourse or 

sexual intrusion with another person who is younger than twelve years old and is not married to 

that person,” petitioner argued that the indictment was fatally flawed and that those counts must 

be dismissed. W. Va. Code § 61-8B-3(a)(2). Petitioner also argued that the grand jury was not 

provided with evidence to support that crime because Sergeant Brian Stewart of the Fairmont City 

Police Department, who testified before the grand jury, never testified to any sexual intercourse 

and/or sexual intrusion. In a separate motion, petitioner also moved to dismiss the counts charging 

first-degree sexual abuse because the indictment set forth the incorrect statute and because, within 

the date range specified in the indictment, the victim was alleged to be between six and thirteen 

years old. Thus, for the same reason petitioner argued the first-degree sexual assault charges should 

be dismissed, he urged dismissal of the first-degree sexual abuse charges.

At a hearing on petitioner’s motions to dismiss, the court dismissed the first-degree sexual 

assault charges, finding that Sergeant Stewart “didn’t testify there was any penetration. I think he 

said or testified that it’s alleged that [petitioner] put his hand on the child’s vagina. There’s no 

suggestion in Officer Stewart’s direct testimony that there’s any penetration.” The court was “less 

concerned” about the first-degree sexual abuse charges, and it was “less concerned about the date 

line involved,” so it denied petitioner’s motion to dismiss the first-degree sexual abuse charges.

In November of 2019, the State moved to dismiss the first indictment without prejudice 

because it “no longer wishe[d] to prosecute this case.” The court ordered the case dismissed 

without prejudice.

On February 3, 2020, petitioner was again indicted (“second indictment”) for two counts 

of first-degree sexual assault (Counts I and III); four counts of sexual abuse by a parent, guardian, 

custodian or person in a position of trust to a child (Counts II, IV, VI, and VIII); and two counts 

of first-degree sexual abuse (Counts V and VII). By agreed order, “all motions, arguments, filings, 

and the entirety of the [c]ourt file” in Case Number 18-F-43 was “transferred and incorporated 

within” the new case (the instant case), assigned Case Number 20-F-15.

Petitioner moved to dismiss Counts I and III (first-degree sexual assault) of the second 

indictment, arguing that Sergeant Stewart falsely testified that the victim, in an interview with the 

Marion County Child Advocacy Center (“CAC”), said that petitioner penetrated her vagina with 

his fingers. Petitioner stated that the victim, in fact, answered “no” when asked whether petitioner 

had ever penetrated her vagina. As the grand jury was not presented with any other evidence that 

petitioner engaged in sexual intercourse and/or sexual intrusion, petitioner argued that the firstdegree sexual assault charges should be dismissed.
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The court denied petitioner’s motion to dismiss the first-degree sexual assault charges. In 

its order, the court recounted that it conducted an in camera review of the CAC interview and the 

grand jury transcript. The court found that petitioner 

failed to demonstrate a prima facie case of “willful, intentional fraud” on the part 

of [Sergeant] Stewart with regard to his testimony to the grand jury on February 3, 

2020, that the alleged victim disclosed in her CAC interview that when the 

[petitioner] “put his hand down her pants his fingers would penetrate her vagina.” 

The court noted that “the CAC interviewer’s questions to the alleged victim were not probing, the 

child was not under oath and the child’s disclosures were not subject to cross examination.” As a 

result, the court found that whether the alleged victim’s disclosure during her CAC interview that 

petitioner “tried to [digitally penetrate her vagina] but I started crying because it hurt” satisfies the 

legal definition of “penetration” was a question of fact to be decided by the jury, inasmuch as “any 

penetration, however slight, of the labia or external lips of the vulva of the female is all that i[s]

necessary.” Syl. Pt. 1, in part, State v. Vance, 146 W. Va. 925, 124 S.E.2d 252 (1962).

Petitioner’s three-day jury trial began on August 5, 2020. The jury heard testimony from 

the investigating officers, the victim, one of the victim’s therapists, the director of the CAC, and 

petitioner before beginning its deliberations on the second day of trial.1 When the jury appeared 

on the morning of the third day to resume their deliberations, the court informed the jury that the 

thumb drive containing the victim’s CAC interview was missing from the jury room. The jurors 

were placed under oath and asked whether “anybody t[ook] it home last night inadvertently or 

otherwise?” No one acknowledged removing the thumb drive from the jury room. The court 

remarked, “Okay. We have no explanation.” A replacement thumb drive was provided to the jury, 

and it resumed its deliberations. 

Once the jury was in the jury room, petitioner moved for a mistrial. Petitioner “appreciated” 

the fact that an inquiry was made into the disappearance of the exhibit, but he argued that it “could 

have been taken home, viewed by someone, viewed by them and their family members or things 

of that nature, that could have brought forth, I guess, deliberations outside of the jury room.” The 

court, finding that it “cannot presume any impropriety insofar as the jurors were all placed under 

oath” and “[n]one of them admitted to having removed or having possession of the thumb drive,” 

denied petitioner’s motion. The court also pointed out that the interview was “an exhibit they 

would have seen in the jury room anyway.”

Following their deliberations, the jury found petitioner guilty of one count of first-degree 

sexual assault (Count I); four counts of sexual abuse by a parent, guardian, custodian or person in 

a position of trust to a child (Counts II, IV, VI, and VIII); and two counts of first-degree sexual 

abuse (Counts V and VII). Petitioner was acquitted of the first-degree sexual assault charged in 

Count III of the second indictment.

1 At the end of the second day of trial, the jury submitted a note to the court asking, “What 

happens when we are locked 11 to 1?” The court and parties agreed that the jurors should be 

encouraged to reach an agreement under Allen v. United States, 164 U.S. 492 (1896); sent home 

for the evening; and permitted to resume deliberating the following morning.
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Petitioner moved for a new trial. He argued that “it was recently discovered the State . . . 

failed to comply with two (2) prior Orders of the court and failed to provide relevant medical 

records.” In consulting with the State prior to trial to confirm that all medical records had been 

obtained and produced, the State asserted that the only records obtained were those from two 

hospitals not at issue. Petitioner stated that he had “recently discovered,” however, that Amy 

Burdette maintained a file containing mental health and counseling records of the victim. Further, 

Ms. Burdette reportedly informed petitioner that no one from the State had contacted her to obtain 

those records or provided her with the circuit court’s order directing her to provide the records.

The court denied petitioner’s motion for a new trial. It noted that 

both the defense and the [S]tate were aware that the child had seen Ms. Burdette 

and those records had been requested and not received. The [c]ourt reviewed the 

records after the trial when this was brought up initially by [petitioner’s] motion for 

a new trial. I didn’t find anything exculpatory in those records, nor did I find 

anything that was inconsistent with the information that was contained in her other 

counseling or mental health records. 

“So,” the court continued, “I’m not satisfied that there would be any different outcome in this case 

were the records received prior to trial and provided to the defense.”

Petitioner was sentenced to not less than twenty-five nor more than one hundred years of 

incarceration for his first-degree sexual assault conviction (Count I); not less than ten nor more 

than twenty years for each of his four sexual abuse by a parent, guardian, custodian or person in a 

position of trust to a child convictions (Counts II, IV, VI, and VIII); and not less than five nor more 

than twenty-five years for each of his two first-degree sexual abuse convictions (Counts V and 

VII). The court further ordered that petitioner’s sentences for first-degree sexual assault and two 

counts of sexual abuse by a parent, guardian, custodian or person in a position of trust to a child 

(Counts I, II, and IV) run concurrently; that petitioner’s sentences for one first-degree sexual abuse 

conviction and one sexual abuse by a parent, guardian, custodian or person in a position of trust to 

a child conviction (Counts V and VI) run concurrently but consecutive to the sentences imposed 

for Counts I, II, and IV; and that the sentences for the remaining first-degree sexual abuse and 

sexual abuse by a parent, guardian, custodian or person in a position of trust to a child convictions 

(Counts VII and VIII) run concurrently with Counts I and II. It is from the court’s sentencing order 

that petitioner appeals.

Petitioner raises six assignments of error on appeal. In his first, he argues that the circuit 

court wrongfully charged him with the continuance to the February 2019 term of court. He argues 

that the State failed to provide the discovery ordered by the court, which he later identifies 

generally as “mental health and counseling records,” so the continuance should not have been 

charged against him. Petitioner further asserts that the error resulted in a deprivation of his right to 

a speedy trial. 

West Virginia Code § 62-3-21 “constitutes the legislative pronouncement of our speedy 

trial standard under Article III, Section 14 of the West Virginia Constitution.” Syl. Pt. 1, in part, 

Good v. Handlan, 176 W. Va. 145, 342 S.E.2d 111 (1986). Under that statute, 
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when an accused is charged with a felony or misdemeanor and arraigned in a court 

of competent jurisdiction, if three regular terms of court pass without trial after the 

presentment or indictment, the accused shall be forever discharged from 

prosecution for the felony or misdemeanor charged unless the failure to try the 

accused is caused by one of the exceptions enumerated in the statute. 

Syl. Pt. 1, in part, State v. Damron, 213 W. Va. 8, 576 S.E.2d 253 (2002). One such enumerated 

exception is “a continuance granted on the motion of the accused,” West Virginia Code § 62-3-21, 

and we have also found that a term continued “by agreement of the parties . . . cannot be counted.” 

Good, 176 W. Va. at 153, 342 S.E.2d at 118. Although petitioner claims that he ultimately did not 

receive the discovery he sought, the fact remains that petitioner and the State jointly moved to 

continue trial until the next term of court, and the joint proposed order charged petitioner with the 

continuance. Because the term was continued by agreement of the parties, and because the parties 

further agreed that petitioner would be charged with the continuance, we find no error in the court 

charging petitioner with the continuance.

In petitioner’s second assignment of error, he argues that the court erred in denying his 

motion to dismiss the second indictment. Petitioner claims that he demonstrated that Sergeant 

Stewart falsely testified before the grand jury that petitioner digitally penetrated the victim. 

Petitioner maintains that the officer never spoke with the victim and had only watched the victim’s 

CAC interview, during which she purportedly denied digital penetration, so there was no evidence 

establishing first-degree sexual assault. See Syl. Pt. 7, State ex rel. Pinson v. Maynard, 181 W. Va. 

662, 383 S.E.2d 844 (1989) (“In reviewing the evidence for sufficiency to support the indictment, 

the court must be certain that there was significant and material evidence presented to the grand 

jury to support all elements of the alleged criminal offense.”).

This Court’s standard of review concerning a motion to dismiss an 

indictment is, generally, de novo. However, in addition to the de novo standard, 

where the circuit court conducts an evidentiary hearing upon the motion, this 

Court’s “clearly erroneous” standard of review is invoked concerning the circuit 

court’s findings of fact. 

Syl. Pt. 1, State v. Carter, 232 W. Va. 97, 750 S.E.2d 650 (2013) (citation omitted). Additionally, 

“[e]xcept for willful, intentional fraud the law of this State does not permit the court to go behind 

an indictment to inquire into the evidence considered by the grand jury, either to determine its 

legality or its sufficiency.” Pinson, 181 W. Va. at 663, 383 S.E.2d at 845, Syl. Pt. 2 (citation 

omitted).

We begin by observing that petitioner failed to include both the transcript of the grand jury 

proceedings and the victim’s CAC interview in the appendix record. Rule 7 of the West Virginia 

Rules of Appellate Procedure directs a petitioner to 

prepare and file an appendix containing:

. . . .
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(5) Material excerpts from official transcripts of testimony or from papers in 

connection with a motion. Such excerpts must contain all the testimony or 

averments upon which the petitioner relies and upon which it may be reasonably 

assumed the respondent will rely. . . . 

(6) Copies of critical exhibits, including photographs and maps, to the extent 

practicable; . . . [and] 

. . . .

(8) Other parts of the record to which the parties wish to direct the Court’s attention. 

W. Va. R. App. P. 7(d). A petitioner’s brief, in turn, “must contain appropriate and specific 

citations to the record on appeal,” and this “Court may disregard errors that are not adequately 

supported by specific references to the record on appeal.” W. Va. R. App. P. 10(c)(7). Finally, 

[a]n appellant must carry the burden of showing error in the judgment of which he 

complains. This Court will not reverse the judgment of a trial court unless error 

affirmatively appears from the record. Error will not be presumed, all presumptions 

being in favor of the correctness of the judgment. 

Syl. Pt. 4, State v. Myers, 229 W. Va. 238, 728 S.E.2d 122 (2012) (citations omitted).

Because petitioner failed to include the grand jury transcript and the victim’s CAC 

interview, and because this failure consequently precluded him from appropriately and specifically 

citing to the claimed error, the Court would be justified in declining to consider this assignment of 

error. Nevertheless, we note that the circuit court conducted a hearing on petitioner’s motion to 

dismiss the indictment, and, in connection with that hearing and petitioner’s motion, it reviewed 

the grand jury transcript and the CAC interview. The court recounted that the victim disclosed that 

petitioner “tried to [digitally penetrate her vagina] but I started crying because it hurt.” The court 

further found that petitioner had not established “willful, intentional fraud” with respect to 

Sergeant Stewart’s testimony because “‘[s]exual intrusion’ means any act between persons 

involving penetration, however slight, of the female sex organ.” W. Va. Code § 61-8B-1(8) 

(emphasis added). In light of these findings, which petitioner has failed to demonstrate are clearly 

erroneous, we find that the court did not err in denying petitioner’s motion to dismiss the 

indictment. 

Next, petitioner’s third assignment of error challenges the court’s denial of his motion for 

a mistrial following the discovery that the thumb drive containing the victim’s CAC interview was 

missing from the jury room. Petitioner claims that “[e]vidence does not simply vanish without 

some third-party interference,” and “an unknown or outside jury had or could have had the 

opportunity, the Court will never know, to change a juror(s) opinion as to whether the [p]etitioner 

should be found guilty [of] the indicted charges.” 

We review the circuit court’s denial of petitioner’s motion for a mistrial for an abuse of 

discretion. State v. Sharp, 226 W. Va. 271, 273, 700 S.E.2d 331, 333 (2010). Further, “[a] trial 

court is empowered to exercise this discretion only when there is a ‘manifest necessity’ for 
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discharging the jury before it has rendered its verdict.” State v. Williams, 172 W. Va. 295, 304, 

305 S.E.2d 251, 260 (1983).

Although juror misconduct “prejudicial to the complaining party[] is sufficient reason to 

direct a mistrial,” Syl. Pt. 1, in part, State v. Trail, 236 W. Va. 167, 778 S.E.2d 616 (2015), 

“[m]isconduct on the part of the jury . . . is not presumed but must be fully proved by the moving 

party.” Id. at 175, 778 S.E.2d at 624 (citation omitted). “[T]he mere allegation of juror misconduct 

is insufficient,” and “there must be proof that some improper event has occurred.” Id.; see also 

State v. Woods, No. 18-1069, 2020 WL 1674252 (W. Va. Apr. 6, 2020)(memorandum decision)

(finding no error in the court’s denial of a motion for a mistrial on the grounds of juror misconduct 

where there was no evidence of any misconduct). Here, the court placed the jurors under oath and 

asked whether anyone took the thumb drive from the jury room. No one indicated that they had 

done so, and there was no proof of any improper conduct. Without such proof, there was no basis 

for declaring a mistrial. The court, therefore, did not abuse its discretion in denying petitioner’s 

motion for a mistrial.

Petitioner argues in his fourth assignment of error that the court erred in denying his motion 

for a new trial. Petitioner asserts that he discovered after the trial that Ms. Burdette possessed 

mental health and counseling records of the victim. Petitioner characterizes these records as 

“newly discovered;” claims that the victim’s mental health treatment records “were a focal point” 

of the parties’ respective cases; and concludes, without citing any support, that the evidence was 

“not merely cumulative,” “substantial to change the results of a second trial,” and “not to impeach 

a witness.” Further, he highlights that the State was ordered to obtain all of the victim’s mental 

health treatment records.

We review the findings and rulings made by a circuit court with regard to a motion for a 

new trial under the following standard:

We review the rulings of the circuit court concerning a new trial and its 

conclusion as to the existence of reversible error under an abuse of discretion 

standard, and we review the circuit court’s underlying factual findings under a 

clearly erroneous standard. Questions of law are subject to a de novo review.

Syl. Pt. 3, in part, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000). A new trial on the 

ground of newly discovered evidence will not be granted

unless the case comes within the following rules: (1) The evidence must appear to 

have been discovered since the trial, and, from the affidavit of the new witness, 

what such evidence will be, or its absence satisfactorily explained. (2) It must 

appear from facts stated in his affidavit that plaintiff was diligent in ascertaining 

and securing his evidence, and that the new evidence is such that due diligence 

would not have secured it before the verdict. (3) Such evidence must be new and 

material, and not merely cumulative; and cumulative evidence is additional 

evidence of the same kind to the same point. (4) The evidence must be such as 

ought to produce an opposite result at a second trial on the merits. (5) And the new 

trial will generally be refused when the sole object of the new evidence is to 

discredit or impeach a witness on the opposite side. 
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Syl. Pt. 1, in part, State v. King, 173 W. Va. 164, 313 S.E.2d 440 (1984). “All five factors must be 

proven before a new trial will be awarded.” Anstey v. Ballard, 237 W. Va. 411, 422, 787 S.E.2d 

864, 875 (2016).

Petitioner fails to demonstrate that he was entitled to a new trial on the ground of newly 

discovered evidence. In his motion for a new trial, petitioner claimed to have “recently discovered, 

after the jury’s verdict, that Amy Burdette does have a file containing mental health and counseling 

records of [the victim].” But the records could not have been discovered since the trial because the 

parties sought their production before trial. And petitioner was not diligent in securing this 

evidence because, when the records were not forthcoming following entry of the order directing 

their production, petitioner did not move to compel their production or otherwise seek to secure 

the records. Further, at the hearing on petitioner’s motion for a new trial, the court indicated that 

it “reviewed the records after the trial when this was brought up initially,” and it “didn’t find 

anything exculpatory in those records, nor did [the court] find anything that was inconsistent with 

the information that was contained in her other counseling or mental health records.” The court 

ultimately was not convinced “that there would be any different outcome in this case were the 

records received prior to trial and provided to the defense.” Aside from petitioner’s conclusory 

statements that the records were, in fact, “new evidence and not merely cumulative” and 

“substantial to change the results of a second trial,” he offers no explanation or analysis to bring 

the circuit court’s contrary conclusions into dispute. As we have repeatedly reminded litigants, a 

“skeletal” argument that is “nothing more than an assertion[] does not preserve a claim.” State v. 

Benny W., 242 W. Va. 618, 633, 837 S.E.2d 679, 694 (2019) (citation omitted). Consequently, 

petitioner has failed to demonstrate that the court abused its discretion in denying his motion for a 

new trial, and we find no error.2

Moving to petitioner’s fifth assignment of error, he claims that there was insufficient 

evidence to support his convictions. Although petitioner claims that he “is aware that this Court 

has held that a conviction for sexual assault can be based solely on the testimony of the alleged 

victim,” he nevertheless takes issue with the fact that “in this case the only evidence of any elicit 

conduct against the [p]etitioner was that of the alleged victim.” Petitioner argues that the victim 

disclosed the sex crimes four to five years after they occurred, that the victim was in counseling, 

that the victim did not discuss the sexual assault during her counseling, and that she even denied 

abuse when questioned by treatment providers.

It is well established that “[a] criminal defendant challenging the sufficiency of the 

evidence to support a conviction takes on a heavy burden,” Syl. Pt. 3, in part, State v. Guthrie, 194 

W. Va. 657, 461 S.E.2d 163 (1995), as this Court’s review is “highly deferential to the jury’s 

verdict.” State v. Thompson, 240 W. Va. 406, 414, 813 S.E.2d 59, 67 (2018). In considering such 

challenges, this Court 

must review all the evidence, whether direct or circumstantial, in the light most 

favorable to the prosecution and must credit all inferences and credibility 

assessments that the jury might have drawn in favor of the prosecution. The 

evidence need not be inconsistent with every conclusion save that of guilt so long 

2 We further note that petitioner failed to provide the affidavits described in King. 173 W. 

Va. at 164, 313 S.E.2d at 441, Syl. Pt. 1, in part.
9

as the jury can find guilt beyond a reasonable doubt. Credibility determinations are 

for a jury and not an appellate court. Finally, a jury verdict should be set aside only 

when the record contains no evidence, regardless of how it is weighed, from which 

the jury could find guilt beyond a reasonable doubt.

Guthrie, 194 W. Va. at 663, 461 S.E.2d at 169, Syl. Pt. 3, in part. Importantly, and as petitioner 

acknowledges, “[a] conviction for any sexual offense may be obtained on the uncorroborated 

testimony of the victim, unless such testimony is inherently incredible, the credibility is a question 

for the jury.” Syl. Pt. 5, State v. Beck, 167 W. Va. 830, 286 S.E.2d 234 (1981).

Notably, petitioner does not contend that the State failed to produce evidence in support of 

an element it had the burden to prove. Rather, petitioner takes issue with the fact that the “only 

evidence” came from the victim, despite simultaneously acknowledging that his convictions could 

be obtained on the victim’s uncorroborated testimony alone, so long as her testimony was not 

“inherently incredible.” Id. Petitioner does not go so far as to allege that the victim’s testimony 

was “inherently incredible”; rather, he merely identifies issues on which she was cross-examined 

extensively. As “[c]redibility determinations are for a jury and not an appellate court,” it was 

within the jury’s province to assess the credibility of the victim’s testimony on those issues. 

Guthrie, 194 W. Va. at 663, 461 S.E.2d at 169, Syl. Pt. 3, in part. Further, in evaluating the 

sufficiency of the evidence, this Court “must credit all . . . credibility assessments that the jury 

might have drawn in favor of the prosecution.” Id. Accordingly, petitioner has not satisfied his 

heavy burden of demonstrating that there was no evidence from which the jury could find him

guilty beyond a reasonable doubt.

In petitioner’s sixth and final assignment of error, he challenges his sentence, claiming that 

it amounts to cruel and unusual punishment in violation of Article III, Section 5 of the West 

Virginia Constitution and the Eighth Amendment to the United States Constitution.

3 He highlights 

that he had no prior criminal history; maintained employment; had obtained a security clearance 

for his job; and was provided with a treatment plan by a licensed psychologist, who also indicated 

that petitioner posed a low risk of reoffending. Petitioner argues that he would have been given a 

lighter sentence had he been convicted of first-degree murder with a recommendation of mercy.

“The Supreme Court of Appeals reviews sentencing orders, including orders of restitution 

made in connection with a defendant’s sentencing, under a deferential abuse of discretion standard, 

unless the order violates statutory or constitutional commands.” Syl. Pt. 1, State v. Wasson, 236 

W. Va. 238, 778 S.E.2d 687 (2015). But “[w]hile our constitutional proportionality standards 

theoretically can apply to any criminal sentence, they are basically applicable to those sentences 

where there is either no fixed maximum set by statute or where there is a life recidivist statute.” 

Syl. Pt. 4, Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981). “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.” Syl. Pt. 4, State v. Goodnight, 169 W. Va. 366, 287 

S.E.2d 504 (1982).

3 Technically, petitioner combined what we have delineated as his fifth and sixth 

assignments of error into one assignment of error. Because the errors alleged are distinct, we have 

separated them for ease of review.
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The crimes of which petitioner was convicted have maximum terms of incarceration set by 

statute, petitioner’s sentences were within those statutory limits, and he was not sentenced as a 

recidivist. See W. Va. Code §§ 61-8B-3(c), 61-8D-5(a), and 61-8B-7(c). Additionally, petitioner 

does not assert that his sentences were based on an impermissible factor. His sentences are, 

therefore, not subject to appellate review. 

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: January 12, 2022

CONCURRED IN BY:

Chief Justice John A. Hutchison

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice Evan H. Jenkins

Justice William R. Wooton