1 

### STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

State of West Virginia, Plaintiff Below, Respondent

v s

. ) No. 18

- 1130 ( Jackson County 17

- F

- 82, 18

- F

- 33, and 18

- F

- 45 )

Joseph Arnold Farrell , Defendant Below, Petitioner



### MEMORANDUM DECISION

Petition er Joseph Arnold Farrell , by counsel David B. Richardson , appeals the Circuit
Court of Jackson County ’s November 26 , 2018

, order sentencing him to a n aggregated term of twenty

- one to thirty

- one years of incarceration

. The State of West Virginia , by counsel Be njamin F. Yancey

, III , filed a summary response. On appeal, petitioner argues that the circuit court
abused its discretion in denying his motion for alternative sentencing and in ordering that his sentences be served consecutively.

This Court has consi de red 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 reco rd 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.

In October of 2017, petit io ner was indicted on one count of receiving or transferring stolen goods and one count of conspiracy to commit a felony. In February of 2018, petitioner was indicted on one count of counterfeiting. In June of 2018, petitioner was indicted on one
count of po ssession of a controlled substance with intent to deliver, one count of transporting a controlled substance into the State of West Virginia with the intent to deliver, and one count of conspiracy to commit a felony.

Petitioner entered into a plea agreem en t with the State of West Virginia in September of 2018 to resolve all of his pending criminal charges. Petitioner agreed to plead guilty to one felony count of conspiracy to commit a felony, one felony count of transporting a controlled
substance into We st Virginia with the intent to deliver that substance, and one misdemeanor count of receiving stolen property. Petitioner further agreed to cooperate with law enforcement, including testifying against his co

- defendants and participating in other ongoing in ve stigations. The State agreed to dismiss the remaining counts in all th ree of petitioner’s indictments and not
to file a recidivis t information against him . The State also reserved the right to make a
recommendation to the circuit cour t as to petitioner’s s entence. On the same day the parties entered into the plea agreement, petitioner entered his guilty pleas before the circuit court, which 

### F ILED September 3, 2020

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2

found that petitioner had freely, voluntarily, and int elligently ple d guilty to those ch arges. The
circuit court con ti nued se ntencing pending the completion of a pre sentence investigation report.

In October of 2018, the circuit court held the final sentencing hearing. Petitioner accepted responsibility for the crimes he had committed and requested an alternative senten ce to incarceration. In support of his request, petitioner asserted that his agreement to cooperate with
law enforcement was disclosed to inmate s at his facility and he had received threats as a result.
Petitioner also noted his numerous health issues that w ould hinder him from protecting himself against violent inmates. The State argued that petitioner’s criminal history spanned over “four decades” and that he had transported “a fairly significant amount of methamphetamine” from Ohio for sale in West Virgi ni a. The State recommended that the circuit court impose the maximum sentence. Ultimately, the circuit court ordered petitioner to serve a determinate twenty

- year period of incarceration, following his conviction fo r conspiracy to commit a felony, pursuant t o West Virginia Code § 60A

- 4

- 414(c) ; an indeterminate one

- to

- ten

- year term of incarceration, following his convict ion of transporting a controlled substance into the State with
the i ntent to deliver that substance; and a determinate one

- year period of in ca rceration, following
his misdemeanor conviction of receiving or transferring stolen property. The circuit court ordered that petitioner’s felony convictions be served consecutively and that his misdemeanor
conviction be served concurrently to the two fel on y sentences. The circuit court entered a sentencing order reflecting its decision on November 26, 2018. It is from this order that petitioner now appeals.

“‘The Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse
of discr et ion 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 W. Va. 407, 710 S.E.2d 98 (2011). “This Court has also specified th at ‘[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).” State v. Fleming , 237 W. Va

. 44, 58, 784 S.E.2d 743, 757 (2016). 1

Petitioner argues that the circuit court abused its discretion in denying his motion for alternative sentencing. He asserts that the circuit court failed to acknowledge that he accepted responsibility for his crimina l conduct and that he exhibited “a low risk of future offending due to his age and medical conditions.” However, a s this Court recently set forth:

[W]e have held that “[p]robation is a matter of grace and not a matter of right.” Syl. pt. 3, State v. Jones

, 216 W. Va. 666, 610 S.E.2d 1 (2004). In other words, “a defendant convicted of a crime has no absolute right to probation.” State v. Loy, 146 W. Va. 308, 318, 119 S.E.2d 826, 832 (1961). This is so because “[p]robation
is not a sentence for a crime but i ns tead is an act of grace upon the part of the State to a person who has been convicted of a crime.” Syl. pt. 2, State ex rel. Strickland

1 Notably, petitione r’s sentences are within statutory limits, and he does not argue that the
sentences are based on an impermissible factor, nor is any such factor apparent from the record on appeal.3

v. Melton, 152 W. Va. 500, 165 S.E.2d 90 (1968).

. . . “ [P] robation [i]s ‘simply one of the devices of an enlightened sy stem of penology which has for its purpose the
reclamation and r ehabilitation of the criminal.’ ” Id. , 152 W. Va. at 506, 165 S.E.2d at 94. Accordingly, “the decision as to whether the imposition of probation is appropriate in a certain case is entirely w it hin the circ uit court’ s discretion.” State
v. Duke , 200 W. Va. 356, 364, 489 S.E.2d 738, 746 (1997). See also W. Va. Code § 62

- 12

- 3 (granting court discretion to suspend sentence and release offender on probation); Duke , 200 W. Va. at 364, 489 S.E.2d at 74 6 (“W. Va. Code § 62

- 12

- 3 specifies the discretion ary nature of the circuit court’ s authority to suspend either the imposition or execution of a sentence of incarceration and to place the defendant on a period of probation[.]”); State v. Miller , 172 W. V a. 718, 720, 310 S.E.2d 479, 481 (1983) (“[T]he matter of probation is within the sound discretion of the trial court.”).

Christopher H. v. Martin , 241 W. Va. 706, 710 , 828 S.E.2d 94, 98 (2019). Here, we find that the
circuit court did not abuse its discr et ion in sentencing petitioner to incarceration as a result of his felony convictions. As argued by the State below, petitioner has participated in criminal activity for the last “four decades.” Indeed, p rior to the instant convictions, p etitioner was conv ic ted of
five felony charges in three different states. Based on this extensive criminal history, the circuit court did not abuse its discretion in deciding petit ioner was not a candidate for alternative sentencing

.

Likewise, we find no abuse of discreti on in the circuit court’s imposition of consecutive terms of incarceration. As petitioner acknowledges, “ when a defendant has been convicted of two separate crimes, before sentence is pronounced for either, the trial court may, in its discretion, provide t ha t the sentences run concurrently.” Syl. Pt. 7, State ex rel. Farmer v. McBride , 224 W. Va. 469, 686 S.E.2d 609 (2009). Again, the circuit court considered multiple factors during sentencing, including petitioner’s lengthy criminal history , and properly e xe rcised its discretion when ordering petitioner to serve the sentences for his felony convictions consecutively . Upon review, we find no abuse of discretion in the circuit court’s final sentence.

For the foregoing reasons, the circuit court’s November 26

, 2018

, sentencing order is
h ereby affirmed

.

Affirmed.

ISSUED : September 3, 2020

CONCURRED IN BY :

Chief Justice Tim Armstead Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins

DISQUALIFIED:

Justice John A. Hutchison