STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

State of West Virginia, 

Plaintiff Below, Respondent 

vs) No. 16-0600 (Preston County 15-F-53) 

Robert Michael Larue, 

Defendant Below, Petitioner 

MEMORANDUM DECISION 

FILED 

September 5, 2017 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Petitioner Robert Michael Larue, by counsel Jeremy B. Cooper, appeals the Circuit Court 

of Preston County’s June 6, 2016, order sentencing him to two years of incarceration and ten 

years of supervised release. The State of West Virginia, by counsel David A. Stackpole, filed a 

response. On appeal, petitioner argues that the circuit court considered an impermissible factor in 

sentencing him. 

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. 

On October 20, 2015, the Preston County grand jury indicted petitioner on three felony 

counts of distributing and exhibiting material depicting minors engaged in sexually explicit 

conduct, in violation of West Virginia Code § 61-8C-3 (1988).1 Petitioner entered into a plea 

agreement whereby he pled guilty to one count of distributing and exhibiting material depicting 

minors engaged in sexually explicit conduct and the State dismissed the remaining two counts, 

agreed to forego prosecuting him in another matter, and agreed to leave sentencing to the trial 

court and not oppose probation. 

On June 6, 2016, petitioner’s sentencing hearing was held. At that hearing, the circuit 

court denied petitioner’s request for probation 

because the Court finds that you’re a high risk to re-offend. The 

Court is considering the recommendations of the Probation Office 

and Dr. Baker[, who conducted a pre-sentencing psychological 

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Petitioner was indicted and convicted under the 1988 version of this statute. The statute 

was amended in 2014. 

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evaluation and sex offender risk assessment]. The Court is also 

considering this is in the Court’s opinion a crime of violence, and 

it is not appropriate to grant probation or alternative sentence in 

your case. 

Petitioner was sentenced to a determinate two-year term of incarceration and ten years of 

supervised release. 

On appeal, petitioner argues that the circuit court considered an impermissible factor in 

sentencing him. Namely, petitioner contends that the circuit court erred in characterizing his 

offense as a crime of violence and in using that characterization to deny him an alternative 

sentence. “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, 273, 496 S.E.2d 221, 223 (1997).2 Moreover, 

“[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, 366, 287 S.E.2d 504, 505 (1982). We note first that petitioner’s sentence is within 

the applicable statutory limitations. Specifically, West Virginia Code § 61-8C-3 (1988) provides 

that, upon conviction, an individual “shall be imprisoned in the penitentiary not more than two 

years, and fined not more than two thousand dollars.” Thus, to be entitled to review, petitioner 

must establish that his sentence was based on an impermissible factor. 

Petitioner claims that the circuit court’s characterization of his crime as one of violence 

constitutes an impermissible factor. In support of his argument, petitioner claims that West 

Virginia Code § 62-12-2, which addresses eligibility for probation, does not preclude probation 

for those convicted of crimes involving acts of violence against a person. We disagree. During 

the pendency of this appeal, this Court decided State v. Riggleman, -- W.Va. --, 798 S.E.2d 846 

(2017). In Riggleman, we held that 

[d]istributing and exhibiting material depicting minors 

engaged in sexually explicit conduct in violation of West Virginia 

Code § 61-8C-3 (2014) is a crime that ‘involve[s] an act of 

violence against a person’ within the meaning of West Virginia 

Code § 27-6A-3(h) (2013) because it derives from and is 

proximately linked to physical, emotional, and psychological harm 

to children. 

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Petitioner contends that he is asserting an error of statutory or constitutional dimension 

and urges application of a de novo standard of review. See State v. Finley, 219 W.Va. 747, 749, 

639 S.E.2d 839, 841 (2006) (“The issue in this case calls on us to examine a question of 

constitutional dimension and as such, ‘[w]here the issue on an appeal from the circuit court is 

clearly a question of law . . . we apply a de novo standard of review.’” (citation omitted)). 

Petitioner, however, fails to state what statutory or constitutional command was violated. 

Accordingly, this Court declines to apply a de novo standard of review. 

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Syl. Pt. 5, Riggleman, -- W.Va. at --, 798 S.E.2d at 848. Thus, the circuit court’s characterization 

was not improper. 

Further, “[p]robation is a matter of grace and not a matter of right.” Syl. Pt. 1, State v. 

Rose, 156 W.Va. 342, 342, 192 S.E.2d 884, 885 (1972). West Virginia Code § 62-12-2 does not 

mandate probation in any instance; rather, it outlines the circumstances under which an 

individual is eligible for probation. The statute addresses eligibility for probation, not the 

appropriateness of probation in a given case. Lastly, petitioner has failed to cite any authority 

that consideration of the nature of an individual’s crime constitutes an impermissible factor. For 

these reasons, the circuit court did not abuse its discretion in sentencing petitioner. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: September 5, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

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