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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia,

Plaintiff Below, Respondent

vs.) No. 21-0604 (Kanawha County 20-F-326)

Jeffrey Scott Smith, 

Defendant Below, Petitioner

MEMORANDUM DECISION

Petitioner Jeffrey Scott Smith, by counsel Herbert L. Hively II, appeals the June 30, 2021, 

order of the Circuit Court of Kanawha County sentencing petitioner to an aggregate 

twelve-to-twenty-two-year term of incarceration for his convictions of malicious wounding by use 

of a firearm and use of a firearm during the commission of a felony. The State of West Virginia, by 

counsel Patrick Morrisey and Scott E. Johnson, filed a response in support of the circuit court’s 

order. On appeal, petitioner alleges that the circuit court sentenced him to an unconstitutionally 

excessive and disproportionate sentence and considered impermissible factors when rendering its 

sentence.

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 September 10, 2020, two employees of Pile Hardware in Charleston, Robert Carpenter 

and Joel Weaver, caught petitioner shoplifting merchandise. They confronted petitioner, who was 

initially cooperative. Witnesses stated that petitioner soon became combative and attempted to flee 

the store. The two employees intervened, and a physical confrontation ensued. During the 

confrontation, petitioner drew a handgun but dropped it to the ground. Moments later, petitioner 

produced a second handgun and fired a single shot into Mr. Carpenter’s knee. Petitioner then fled 

the scene. Witnesses observed petitioner run into the West Side Market and saw the handle of a 

firearm on his right hip as he entered. After petitioner left the market, law enforcement found the 

FILED

August 31, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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firearm, hidden behind a case of Dr. Pepper inside the store. This firearm matched the caliber of 

the bullet recovered from the scene of the shooting. Law enforcement recovered a bag of 

methamphetamine and the other firearm from outside the hardware store, in addition to recovering

the items stolen from Pile Hardware along the route between Pile Hardware and the West Side 

Market. Petitioner was arrested and later asserted that he was under the influence of heroin and 

methamphetamine during the commission of the crime. The investigation also revealed that 

petitioner had a prior felony conviction for the distribution of methylenedioxymethamphetamine 

(“MDMA”) and, thus, was prohibited from possessing firearms.

Later in September of 2020, petitioner was indicted on one count of malicious wounding 

by use of a firearm, one count of the use of a firearm in the commission of a felony, one count of

possession of a firearm by a prohibited person, and one count of possession of a concealed firearm 

by a prohibited person. 

In June of 2021, petitioner pled guilty to one count of malicious wounding and one count of 

the use of a firearm in the commission of a felony, and the State dismissed the remaining charges 

pursuant to a plea agreement. During his plea hearing, the circuit court engaged petitioner in a plea 

colloquy, informing him of the constitutional rights that he would be waiving as a result of his 

guilty plea. Petitioner acknowledged the potential statutory penalties for the crimes to which he 

pled and further acknowledged that sentencing for those crimes was in the court’s discretion, 

including that he could be sentenced to consecutive terms of incarceration. Following the 

colloquy, the circuit court found a factual basis for the guilty pleas and that petitioner freely, 

voluntarily, and intelligently entered his pleas of guilty.

Later in June of 2021, the circuit court held petitioner’s sentencing hearing. Petitioner 

argued for his sentences to run consecutively, with the second sentence to be served on home 

incarceration. He asserted that he had not previously committed a crime of violence against a 

person and that he had accepted responsibility for the instant offenses. Petitioner exercised his 

right to allocution. The State argued that petitioner’s criminal activity had escalated since 2004. 

Further, the State pointed out that petitioner stated he accepted responsibility but referenced his 

statement in the pre-sentence investigation report that the firearm “discharged accidentally.” The 

State emphasized that petitioner “had not one but two guns in his possession,” and, contrary to 

petitioner’s assertion that he was highly intoxicated from controlled substances, he had the 

wherewithal to flee the scene and hide the firearm used in the crime. The State argued that the 

circuit court should impose the maximum statutory penalties, run the resulting sentences 

consecutively, and deny petitioner home incarceration.

Ultimately, the circuit court reasoned that “the discharging of those [firearms] accidentally 

or not [was] inexcusable. It’s a danger to society.” The court determined that petitioner was an 

ever-present danger to society and recommended that he take advantage of substance abuse 

treatment while incarcerated. The court then sentenced petitioner to an indeterminate 

two-to-ten-year term of incarceration for his conviction of malicious wounding and a determinate 

ten-year term of incarceration for his conviction of use of a firearm during the commission of a 

felony, which the court ordered would be served consecutive to the first term of incarceration. The 
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circuit court’s June 30, 2021, order memorialized petitioner’s sentence. He now appeals the circuit 

court’s sentencing order.

“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, 496 S.E.2d 221 (1997). Additionally, we have consistently 

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.” Syl. Pt. 4, State v. Goodnight, 169 W. 

Va. 366, 287 S.E.2d 504 (1982).

On appeal, petitioner first argues that the circuit court’s sentence is excessive and 

disproportionate to the crime, in violation of the West Virginia Constitution. We have held that

“Article III, Section 5 of the West Virginia Constitution, which contains the cruel 

and unusual punishment counterpart to the Eighth Amendment of the United States 

Constitution, has an express statement of the proportionality principle: ‘Penalties 

shall be proportioned to the character and degree of the offence.’” Syllabus Point 8, 

State v. Vance, [164 W. Va. 216], 262 S.E.2d 423 (1980).

Syl. Pt. 3, Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981). Further, 

“[w]hile our constitutional proportionality standards theoretically can apply to any 

criminal sentence, they are basically applicable to those sentences where there is 

either no fixed maximum set by statute or where there is a life recidivist sentence.” 

Syllabus point 4, Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 

(1981).

Syl. Pt. 2, State v. Patrick C., 243 W. Va. 258, 843 S.E.2d 510 (2020). In other words, “[w]hen 

previously asked to review sentences as being disproportionate, this Court has determined that 

these claims generally are limited to sentences that have no maximum limit provided by statute.” 

State v. Sulick, 232 W. Va. 717, 725, 753 S.E.2d 875, 883 (2012).

Here, petitioner was convicted of one count of malicious wounding, which carries an 

indeterminate sentence of two to ten years of incarceration.1 Petitioner was also convicted of one 

count of use of a firearm during the commission of a felony, which carries a determinate sentence 

of “not more than ten years.”2 Both crimes have statutory maximums, which the circuit court did 

not exceed. Therefore, we find petitioner’s sentence is proportionate. 

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W. Va. Code § 61-2-9(a).

2

W. Va. Code § 61-7-15a.
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Petitioner also argues that the circuit court’s sentence was based on an impermissible 

factor. He asserts that the court erred in finding that he was a danger to society, arguing that the 

finding was “without any foundation.”

This Court has considered that “[a] trial court has wide discretion in the sources and types 

of evidence used in determining the kind and extent of punishment to be imposed. And a 

sentencing court is not restricted by the federal constitution to the information received in open 

court.” State ex rel. Dunlap v. McBride, 225 W. Va. 192, 202, 691 S.E.2d 183, 193 (2010) (citation 

omitted). Some impermissible factors have been identified, however, including “race, sex, national 

origin, creed, religion, and socioeconomic status.” State v. Moles, No. 18-0903, 2019 WL 5092415 

(W. Va. Oct. 11, 2019)(memorandum decision)(citation omitted). 

Here, we do not find that the circuit court considered an impermissible factor when 

sentencing petitioner. The circuit court’s finding is reasonable in light of the record. Petitioner, a 

felon who was prohibited from possessing firearms, brought two weapons into a business and, 

ultimately, shot and injured an employee. This evidence supports the circuit court’s finding, and it 

was not impermissible for the circuit court to consider this evidence at sentencing. We find 

petitioner is entitled to no relief in this regard.

For the foregoing reasons, we find no error in the circuit court’s June 30, 2021, order.

Affirmed.

ISSUED: August 31, 2022

CONCURRED IN BY:

Chief Justice John A. Hutchison 

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice William R. Wooton

Justice C. Haley Bunn