STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

State of West Virginia,
 FILED 

Plaintiff Below, Respondent January 27, 2017
 

RORY L. PERRY II, CLERK 

vs) No. 16-0357 SUPREME COURT OF APPEALS (Jefferson County 15-F-11) OF WEST VIRGINIA 

Wayne Dubuque,
 

Defendant Below, Petitioner
 

MEMORANDUM DECISION 

Petitioner Wayne Dubuque, by counsel Kevin D. Mills and Shawn R. McDermott, 

appeals his sentence of five consecutive terms of imprisonment in the state penitentiary of five to 

fifteen years each, subsequent to his plea of guilty to five counts of possession of material 

depicting a minor engaged in sexually explicit conduct. Respondent State of West Virginia 

appears by counsel Brandon C.H. Sims. 

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 order of the circuit court is appropriate under 

Rule 21 of the Rules of Appellate Procedure. 

Petitioner was indicted in January of 2015 on twenty counts of various sexual assault and 

child pornography crimes. This indictment stemmed from the assault of petitioner’s adult 

girlfriend, and the following materials discovered during the investigation of that assault: one 

CD, nine Polaroid pictures, two 4x6 pictures, five VHS cassettes, and a 2002 day planner. In 

November of 2015, petitioner entered a plea of guilty to Count 1, addressing the assault of the 

girlfriend, and Counts 5 through 9, addressing the five VHS cassettes that were found at 

petitioner’s home. It is undisputed that Counts 5 through 7 are based on materials depicting 

violence to a minor, and that Counts 8 and 9 are based on material that contains 600 images. 

At the plea hearing, the court acknowledged that petitioner and the State had no 

agreement as to whether the sentences for Counts 5 through 9—each potentially carrying a 

sentence of five to fifteen years—would be served consecutively or concurrently. Petitioner 

indicated, however, that he wished to preserve his right to appeal the “multiplicity” of the 

sentence with regard to Counts 5 through 9. Petitioner was sentenced, by order entered on March 

15, 2016, to an aggregate term of imprisonment in the state penitentiary for 25 to 75 years for 

Counts 5 to 9 (which were ordered to be served consecutively), and a term of imprisonment of 10 

to 25 years for Count 1 (which was ordered to be served concurrently with the others). 

Petitioner’s guilty plea to Count 1 and the resultant sentence is not an issue in this appeal. 

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On appeal, the crux of petitioner’s argument is that his indictment violates principles of 

double jeopardy because he has received multiple punishments for a single offense. “[A] double 

jeopardy claim[ is] reviewed de novo.” Syl. Pt. 1, State v. Sears, 196 W.Va. 71, 468 S.E.2d 324 

(1996). Petitioner argues that all images found at his home should have been considered in the 

aggregate for purposes of his indictment. However, we have expressly determined that “our 

statutes protecting children from exploitation are interpreted to mean that possession of each 

photograph is a separate act and is a distinct and separate unit of prosecution allowing the State 

of West Virginia to charge separate counts and prosecute each act of possession.” State v. 

Shingleton, ___ W.Va. ___, ___, 790 S.E.2d 505, 523 (2016), quoting Morgan v. Ballard, No. 

11–1677, 2013 WL 149602 (W.Va. Jan. 14, 2013) (memorandum decision). There was no error 

in the indictment. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: January 27, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

DISSENTING: 

Justice Robin Jean Davis 

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