STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS
 

State of West Virginia, 

Plaintiff Below, Respondent FILED

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 counsel G. Phillip Davis, appeals the 

Circuit Court of Lewis County’s August 4, 2017, order sentencing her to an effective term of 

four to twenty years of incarceration following 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 erred by considering an impermissible factor at sentencing, ordering 

a harsher sentence for her than for her codefendant, 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 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. 

In November of 2016, the Lewis County grand jury returned a thirty-five-count 

indictment against petitioner charging her with fifteen counts of possession with 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 substance, and one count of felony child 

neglect. The grand jury also returned a thirty-five count indictment against petitioner’s long-time 

boyfriend, John Burgess, alleging similar, but not identical, crimes. Notably, Mr. Burgess’s 

charges included several misdemeanors whereas petitioner was charged 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 appendix record, the circuit court’s sentencing order 

reveals that Mr. Burgess pled guilty to three counts of possession of a controlled 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 for 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 

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to deliver convictions. Thus, Mr. Burgess received an effective two- to ten-year sentence. 

On May 30, 2017, petitioner and the State 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 for the dismissal of the remaining charges and the 

State’s recommendation that she not receive a harsher sentence than Mr. Burgess’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 conference on June 7, 2017, at which petitioner 

confirmed her rejection of the State’s plea offer. Accordingly, the court scheduled 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 the services of another 

attorney, James Hawkins, and wished to proceed with representation by Mr. Hawkins. Mr. 

Hawkins, however, had not filed a notice of appearance, so the court proceeded with jury 

selection with petitioner’s appointed counsel.2 Following jury selection, 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 petitioner’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 delivery of a controlled substance charges in exchange for the State’s 

dismissal of the remaining charges. Before accepting 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 sentence, 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 something; but they’re not recommending anything at 

this point in time. Do you understand that?” Petitioner responded affirmatively. Later, however, 

petitioner informed the court that she “thought it was just the two (2) to ten (10) from what we - 

.” The circuit court again informed petitioner that the 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 agreed 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 hearing was held on July 31, 2017. Counsel for petitioner argued 

for concurrent sentences, stating that Mr. Burgess received an effective 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 for trial and then - , so 

the plea offer changed as far as a recommendation for the State because of that.” The State 

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Prior to this hearing, petitioner requested, and was appointed, new counsel. 

2

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

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

had offered what [it] thought was beyond a fair plea offer initially 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 petitioner 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 counted out there were thirtyfive (35) counts in this indictment. One involving [a] child neglect situation which 

the allegation was that – because of drug usage the child was walking alone – 

small child, down there in Jane Lew on the – 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 that 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 against you; and this is all very serious. And 

like I said, there w[ere] thirty-five (35) counts, so part of this deal is that you 

plead to four (4) counts and the remaining thirty-one (31) counts are dismissed. 

So, you know, I take all those things into 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 been in trouble as 

it relates to drugs. So, you know, I take all those things into consideration 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 jury 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 then 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. And 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 concurrent, 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 then 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, 

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sentencing order, and it is from this order that she appeals. 

This Court 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. 

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]permissible 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 proper 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 impermissible 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 plea agreement constitutes an impermissible factor. 

Petitioner asserts that this delay “was the primary focus of the circuit court’s consideration at 

sentencing.” Petitioner argues that her limited criminal background, 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 sentencing determination or in her argument that 

consideration of such is impermissible. Importantly, petitioner 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 State’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 such provision. Moreover, as detailed above, the 

circuit court considered a number of factors in sentencing petitioner, 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 defendant’s “involvement in the criminal transaction 

(including who was the prime mover), prior records, rehabilitative potential (including postarrest conduct, age and maturity), and lack of remorse.” Syl. Pt. 2, in part, State v. Buck, 173 

W.Va. 243, 314 S.E.2d 406 (1984). Accordingly, we find that the circuit court did not abuse its 

discretion in this regard. 

Next, petitioner claims that, “[d]espite being 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 indictments, 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]isparate sentences for codefendants 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 codefendants, a circuit court may consider “many factors 

such as each codefendant’s respective involvement in the criminal transaction (including who 

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It is undisputed that petitioner’s sentences were within statutory limits. 

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was the prime mover), prior records, rehabilitative potential (including post-arrest conduct, age 

and maturity), and lack of remorse. If codefendants 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 offenses. Additionally, petitioner failed to include 

Mr. Burgess’s sentencing hearing transcript or any other document to support her assertions that 

she and Mr. Burgess were “equally culpable” and that “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 circuit 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 denial 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 defendant “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-appointed counsel is a showing of good faith.” 

Id. at 53, 239 S.E.2d at 668. Although petitioner claimed to have retained other counsel, that 

other attorney disclaimed having been retained. Moreover, to the extent petitioner is arguing that 

her court-appointment counsel should have, nonetheless, been dismissed despite the fact that 

other counsel had not been retained, petitioner offered no basis for rejecting her attorney before 

the circuit court and has similarly failed to articulate any basis on appeal. Accordingly, we find 

no error in the circuit court’s denial 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 sitting by temporary assignment 

Justice Tim Armstead 

Justice Evan H. Jenkins 

Justice Allen H. Loughry II, suspended and therefore not participating 

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