### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia, 

### FILED Plaintiff Below, Respondent 

### October 12, 2018 vs.) No. 17-0766 (Lewis County 16-F-78) EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA Eyvonne Alexandria Thompson, Defendant Below, Petitioner



### MEMORANDUM DECISION

Petitioner Eyvonne Alexandria Thompson, by c ounsel G. Phillip Davis, appeals the Circuit Court of Lewis County’s August 4, 2017, orde r sentencing her to an effective term of four to twenty years of incarceration follo wing her delivery of a controlled substance convictions. The State, by counsel Robert L. Hogan, filed a response. On appeal, petitioner argues that the circuit court erre d by considering an impermissible factor at sent encing, ordering

a harsher sentence for her than for her codefe ndant, and prohibiting her from dismissing her second court-appointed attorney.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21

of the Rules of A ppellate Procedure.

In November of 2016, the Lewis County gr and jury returned a thirty-five-count indictment against petitioner charging her with fi fteen counts of possession w ith intent to deliver various controlled substances, fifteen counts of conspiracy to possess controlled substances with intent to deliver, four counts of delivery of a controlled substan ce, and one count of felony child neglect. The grand jury also returned a thirty-five count indictment agai nst petitioner’s long-time boyfriend, John Burgess, alleging similar, but not identical, crimes. Notably, Mr. Burgess’s charges included several misdemean ors whereas petitioner was charge d solely with felonies.

On January 10, 2017, Mr. Burgess entered into a plea agreement with the State. Although his plea agreement was not made part of the appe ndix record, the circuit court’s sentencing order reveals that Mr. Burgess pled guilty to three coun ts of possession of a cont rolled substance with intent to deliver and one count of conspiracy in exchange for the State’s dismissal of the remaining charges. The circuit court sentenced Mr . Burgess to concurrent terms of not less than one nor more than five years of incarceration fo r each possession of a controlled substance with

intent to deliver conviction and to one to five years for his conspiracy conviction, which was ordered to run consecutively to the concurrent sentences imposed for the possession with intent

1to deliver convictions. Thus, Mr. Burgess receiv ed an effective two- to ten-year sentence.

On May 30, 2017, petitioner and the Stat e appeared for a motions hearing. 1 The State informed the circuit court that it had offered to allow petitioner to plead guilty to four counts of delivery of a controlled substance in exchange fo r the dismissal of the re maining charges and the

State’s recommendation that she not receive a harshe r sentence than Mr. Bu rgess’s effective twoto ten-year sentence. Petitioner rejected the plea offer, but then indicated that she would like additional time to consider it. Accordingly, the State extended the offer until the date of the pretrial conference.

The circuit court held the pretrial c onference on June 7, 2017, at which petitioner confirmed her rejection of the State’s plea offer. Accordingly, the court sc heduled jury selection for June 12, 2017, and the trial for June 15, 2017.

On June 12, 2017, the parties appeared for jury selection. Petitioner’ s counsel represented to the circuit court that petitioner informed him that she had retained th e services of another attorney, James Hawkins, and wished to proc eed with representation by Mr. Hawkins. Mr. Hawkins, however, had not filed a notice of a ppearance, so the court proceeded with jury selection with petitioner’s appointed counsel. 2 Following jury selectio n, petitioner’s counsel reported that he had conferred with Mr. Hawkins, who said that he had not, in fact, been retained.

On June 15, 2017, immediately before petitione r’s trial was scheduled to commence, the parties reached a plea agreement. Pursuant to this agreement, petitioner agreed to plead guilty to

the four counts of deli very of a controlled substance ch arges in exchange for the State’s dismissal of the remaining charges. Before accep ting petitioner’s pleas, the circuit court made sure that petitioner understood the possible sentence she faced. Petitioner understood that she faced an effective four- to twenty-year senten ce, and the circuit court further explained, “All right, now, you know, I think what had happened was there’d previously been a different offer where the State was going to recommend someth ing; but they’re not recommending anything at this point in time. Do you understand that?” Pe titioner responded affirma tively. Later, however, petitioner informed the c ourt that she “thought it was just the tw o (2) to ten (10) from what we - .” The circuit court again inform ed petitioner that th e State’s plea offer no longer contained the agreement to recommend an effective two- to ten-year sentence. Petitioner asked for additional time to confer with her attorney, but ultimately ag reed to the State’s offer and entered her guilty pleas as outlined above. Petitioner informed the court that she was satisfied with her attorney’s representation of her.

Petitioner’s sentencing heari ng was held on July 31, 2017. Counsel for petitioner argued for concurrent sentences, stating that Mr. Bu rgess received an effec tive two- to ten-year sentence. The circuit court noted that, “[o]f course, he came in and took the plea offer that had been made by [the State] and your client; we picked a jury and were ready fo r trial and then - , so the plea offer changed as far as a recommendatio n for the State because of that.” The State

1 Prior to this hearing, petitioner reque sted, and was appointed, new counsel.

2 The record also appears to reflect that Mr. Hawkins was not present for jury selection.

2recommended consecutive sentences because , among other reasons, the State said it

had offered what [it] thought was beyond a fair plea offer initia lly for the two (2) to ten (10) and [petitioner] chose not to take that and quite frankly, Your Honor, I feel like she was playing the system hoping that she could take it up to the last

minute and I would come in here and make her a better offer than that and of course that didn’t happen.

The circuit court sentenced peti tioner to consecutive terms of not less than one nor more than five years of incarceration for each of her four convictions, resulting in an effective four- to twenty-year sentence. In reaching this disposition, the court considered

this case in general. I just counted loosely there – I c ounted out there were thirtyfive (35) counts in this indictment. One involving [a ] child neglect situation which the allegation was that – because of dr ug usage the child was walking alone – small child, down there in Jane Lew on th e – on “19” which is pretty busy down

there. And – of course there’s a bunch of drug charges in this and some of those stem from the – separate law enforcement agencies doing investigations are bias [sic]. As [the prosecutor] says that – this involved crystal methamphetamine which, you know, those type of drugs are the type [of] drugs th at destroy people’s lives and I mean, it’s – I’m sure it’s had a huge impact in the negative sense on your life[.] . . . But, as I look through [the] pre-sentence investigation report, you know, read the cases that they had agains t you; and this is al l very serious. And like I said, there w[ere] thirty-five (35) c ounts, so part of this deal is that you plead to four (4) counts and the remaini ng thirty-one (31) c ounts are dismissed. So, you know, I take all those things in to consideration, and I’ve looked at your criminal history. It’s not extensive but it’s not like you haven’t been in any

trouble before either. And it’s not like it’s the first time you’ve b een in trouble as it relates to drugs. So, you know , I take all those things into consider ation and you know, as it relates to this, you did end up pleading in this case, but, you know, we had gone through the process of picking a ju ry and came in here and had the jury ready to go. And I remember, you know, as it relates to this, you asked for additional time when we came in here to consider this case and the prosecutor extended that to you and th en when we came back in here you decided that you didn’t want that plea offer, which was your right. But then when we came in here on the day of trial you decided you did. A nd then we went through the thing of – where she changed the recommendation to say that she wasn’t going to

recommend that these sentences run c oncurrent, or make that recommendation here today. And then you said you didn’t want that. So, we went through that and we came back into Court again and th en you changed your mind and said you did want it, so we took your plea at that time, which gave you, like I said, a great deal

of benefit because there were thirty-one (31) counts in this indictment against you that are going to be dismissed because of the plea. So, I’ve taken all those things into consideration[.]

Petitioner’s sentences were memorialized in the circuit court’s August 4, 2017,

3sentencing order, and it is from th is order that she appeals.

This Court reviews sentencing orders “under a deferential abuse of discretion standard,

unless the order violates stat utory or constitutional comma nds.” Syl. Pt. 1, in part, State v.

Adams , 211 W.Va. 231, 565 S.E.2d 353 (2002) . We have also held that “[s]entences imposed by the trial court, if within statutory limits and if not based on some [im]pe rmissible factor, are not subject to appellate review.” 3 Syl. Pt. 4, State v. Goodnight , 169 W.Va. 366, 287 S.E.2d 504 (1982). In sum, “[i]t is not the prop er prerogative of this Court to substitute its judgment for that of the trial court on sentencing matters, so long as the appellant’s sentence was within the statutory limits, was not based upon any impermissi ble factors, and did not violate constitutional principles.” State v. Georgius , 225 W.Va. 716, 722, 696 S.E.2d 18, 24 (2010).

In petitioner’s first assignment of error, she contends that the circuit court’s consideration at sentencing of the delay in entering into a pl ea agreement constitutes an impermissible factor. Petitioner asserts that this delay “was the primar y focus of the circuit court’s consideration at sentencing.” Petitioner argues that her limited criminal b ackground, completion of “some college,” and acceptance of responsibility warranted a lighter sentence.

We find no merit to petitioner’s assertion that her delay in entering a plea agreement was the “primary focus” of the circuit court’s sent encing determination or in her argument that consideration of such is impe rmissible. Importantly, petitione r cites to no law prohibiting a circuit court from considering procedural aspects of a defendant’s case in sentencing, especially where that procedure is relevant to the St ate’s dispositional recommendation. Although petitioner was initially offered an agreement that included the State’s agreement to recommend an effective two- to ten-year sentence, petitioner rejected that agreement. The agreement into which she ultimately entered with the State contained no su ch provision. Moreover, as detailed above, the

circuit court considered a number of factors in sentencing petitione r, including the seriousness of the charges against her, her criminal history, and the benefit of her bargain. We have previously approved a circuit court’s consideration of a defenda nt’s “involvement in th e criminal transaction (including who was the prime move r), prior records, rehabilita tive potential (including postarrest conduct, age and maturity), and l ack of remorse.” Syl. Pt. 2, in part, State v. Buck , 173 W.Va. 243, 314 S.E.2d 406 (1984). Accord ingly, we find that the circ uit court did not abuse its discretion in this regard.

Next, petitioner claims that, “[d]espite be ing similarly situated[,]” she erroneously received a harsher sentence than Mr. Burgess. Petitioner highlights that she and Mr. Burgess were both charged in thirty-five-count indictment s, pled guilty to four counts, “appear[] to be equally culpable, and neither appeared to be a prime mover in the conspiracy.”

We have previously held that “[d]ispara te sentences for codefe ndants are not per se

unconstitutional.” Buck , 173 W.Va. at 244, 314 S.E.2d at 407, Syl. Pt. 2, in part. As set forth above, to justify different sentences for codefenda nts, a circuit court may consider “many factors such as each codefendant’s respective involveme nt in the criminal transaction (including who

3 It is undisputed that petitioner’s sent ences were within statutory limits.

4was the prime mover), prior reco rds, rehabilitative potential (i ncluding post-arrest conduct, age and maturity), and lack of remorse. If codefe ndants are similarly situated, some courts will reverse on disparity of sentence alone.” Id. We noted at the outset that petitioner and Mr. Burgess pled guilty to separate and distinct o ffenses. Additionally, petitioner failed to include Mr. Burgess’s sentencing hearing transcript or a ny other document to suppor t her assertions that she and Mr. Burgess were “equally culpable” and th at “neither appeared to be a prime mover in the conspiracy.” The lack of this record also precludes a comparison of the factors the circuit court considered in sentencing Mr. Burgess with those considered in sentencing petitioner. Thus, petitioner has failed to establish any abuse of discretion in the circ uit court’s imposition of

different sentences.

Petitioner’s final argument on appeal is that the circuit court erred in not allowing her to dismiss her second court-appointed attorney. Petitioner contends that the she requested substitution of counsel “in good faith ” and that the circuit court’s de nial of her request “resulted in prejudice to her cause.”

We find no merit to this assignment of error. It is well-settled that “an indigent defendant is entitled to competent counsel,” but a defenda nt “is not entitled to the appointment of any particular lawyer and may only reject representation by his court-appointed counsel for good cause.” Syl. Pt. 2, Watson v. Black , 161 W.Va. 46, 239 S.E.2d 664 (1977). “The preeminent condition precedent of a motion to change court-a ppointed counsel is a showing of good faith.”

Id. at 53, 239 S.E.2d at 668. Although petitioner clai med to have retained other counsel, that other attorney disclaimed having been retained. Mo reover, to the extent pe titioner is arguing that her court-appointment counsel should have, noneth eless, been dismissed despite the fact that

other counsel had not been retained, petitione r offered no basis for rejec ting her attorney before the circuit court and has similarly failed to arti culate any basis on appeal. Accordingly, we find

no error in the circuit court’s deni al of her request to proceed with an attorney she never retained.

For the foregoing reasons, the circuit court’ s August 4, 2017, sentencing order is hereby

affirmed.

Affirmed.

ISSUED: October 12, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Paul T. Farrell sit ting by temporary assignment

Justice Tim Armstead

Justice Evan H. Jenkins

Justice Allen H. Loughry II, suspende d and therefore not participating

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