1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia

, Plaintiff Below, Respondent

vs.) No. 22-0022 (Braxton County CC -04-2021-F-16)

Roger Allen Pettry

, Defendant Below, Petitioner



### MEMORANDUM DECISION

Petitioner Roger Allen Pettry appeals the December 9, 2021, order of the Circuit Court of Braxton County sentencing him to an indeterminate term of incarceration in the penitentiary for one to ten years following his guilty plea to one count of breaking and entering

. 1 Petitioner argues

that the circuit court’s order should be vacated because the circuit court considered im permissible factors in sentencing him. Upon our review, finding no substantial question of law and no prejudicial error, we determine that oral argument is unnecessary and that a memorandum decision affirming the circuit court’s order is appropriate. See W. Va. R. App. P. 21(c).

In June 2021, petitioner was indicted on two counts of breaking and entering two separate

structure s— an animal hospital and a marina

— in Braxton County in September 2020 in violation of West Virginia Code § 61 -3-12. 2 Pursuant to a plea agreement with respondent, petitioner entered a guilty plea to the first count, and

, in exchange, respondent agreed to stand silent at sentencing

and dismiss the second count of the indictment. Upon accepting petitioner’s guilty plea , the circuit

cou rt entered an order on October 12, 2021, adjudging petitioner guilty of the first count and dismissing the second count.

The circuit court ordered the probation department to prepare a presentence investigation

report (“ PSI report ”), which provided infor mation about petitioner’s multiple prior felony offenses and, relevant to this appeal, included his juvenile delinquency history and drug use. It stated , “ The [petitioner] reported he was charged with Breaking and Entering in 1994 when he was 15 years

1 Petitioner appears by counsel Kevin W. Hughart . Respondent State of West Virginia appears by counsel Attorney General Patrick Morrisey and Assistant Attorney General Gail V. Lipscomb.

2 West Virginia Code § 61 -3- 12 provides, in relevant part, that upon conviction for breaking and entering the type of structures at issue in this case , a defendant “shall be confined in a state correctional facility not less than one nor more than 10 years.” 

### FILED September 15, 2023

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 old. He stated he went to Salem juvenile facility for eight months as a result.” The PSI report also

stat ed that petitioner had used marijuana “almost daily” from the time he was thirteen years old

until he was incarcerated in 2020 and that petitioner admitted to “experiment[ing] with methamphetamine once or twice around 40 years of age.” Petitioner did not ask the probation department to make any corrections to the PSI report.

At his sentencing hearing, petitioner’s counsel was questioned by the circuit court as to whether he had any additions, corrections, or modifications to make to the PSI repor t. Other than requesting that a year included in his criminal history be changed, petitioner’s counsel requested no other changes to the PSI report, and he made no objections to any information contained in the

report.

P etitioner, through his counsel, asked the circuit court to order alternative sentencing in the

form of prob ation or house arrest. The circuit court denied the request, explain ing:

It troubles me that you have a fair amount of criminal history including multiple felony charges and convictions. It appears that you have a propensity to commit offenses of breaking and entering and this is your fifth conviction of breaking and entering since 1994. It appears to the [c]ourt that you have a long

term history with marijuana use from age 13 years until 2020, and you’ve acknowledged that you’ve experimented with other dr ugs

. . . .

Based upon the multiple periods of past incarceration for felony convictions, based upon what I believe is a drug addiction problem, based upon your lack of employment history in the matter, I believe that there’s a likelihood that you would v iolate probation or commit another crime if I granted you probation or conditional discharge. I believe you’re in need of correctional treatment that can be more effectively served in a correctional institution. Quite frankly, to give you probation or alte rnative sentencing would severely depreciate the seriousness of the

offenses

. . . you’ve committed.

Petitioner made no objections to the circuit court’s findings

.

By order entered on December 9, 2021, the circuit court sentenced petitioner to one to ten years of incarceration in the penitentiary. Petitioner now appeal s th e sentencing order to th is Court, arguing that his sentence should be set aside.

This Court has held that, if a sentence imposed by a trial court is within statutory limits,

the senten ce is not subject to appellate review unless it is “based on some impermissible factor.” Syl. Pt. 3 , in part

, State v. Tyler , 211 W. Va. 246, 565 S.E.2d 368 (2002) ( quoting Syl. Pt. 4, State v. Goodnight , 169 W. Va. 366, 287 S.E.2d 504 (1982) ). We have recognized that “the impermissible factors a court should not consider in sentencing include such matters as ‘ race, sex, national origin, creed, religion, and socioeconomic status .

. . . ’ ” State v. Moles , No. 18

- 0903, 2019

WL 5092415 , *2 (W. Va. O ct. 11, 2019) (memorandum decision) (quoting United States v.

Onwuemene , 933 F.2d 650, 651 (8th Cir. 1991) ). Petitioner does not dispute that his sentence is within statutory limits

. Rather, h e contends that the circuit court relied on impermissible factor s in3 imposing his sentence . First, he argues that petitioner’s juvenile records were disclosed in the PSI report in violation of West Virginia Code § 49

- 5

- 103 3 and that the information from the juvenile records constituted an impermissible factor for the circuit court to consider in sentencing him

. Second, he contends that the circuit court erred in finding that he had a substance abuse problem and that the finding was an impermissible factor for the court to consider in sentencing

.

Regarding the disclosure of petitioner’s juvenile delinquency information , t h e facts of this

case are similar to those in State v. Bleck , 243 W. Va. 293, 843 S.E.2d 775 (2020). In Bleck , the defendant argued that the circuit court, in deciding whether to g rant the defendant probation, erroneously relied on a charge set forth in the PSI report that the defendant alleged should not have been included in the report

. Id

. at 297, 843 S.E.2d at 779. The Court found that the defendant failed

to raise the issue bef ore or during the sentencing hearing, that the circuit court gave the defendant the opportunity to object to any inaccuracies in the PSI report during the sentencing hearing, and

that the defendant’s counsel made “ an objection demonstrating that he had rev iewed the PSI report prior to the sentencing hearing .” Id. at 300, 843 S.E.2d at 782. Based on th o se findings , the Court

concluded that the defendant had “ knowingly and intelligently made no objection or attempt to

inform the circuit court that the

. . . c harge noted in the PSI report ” was improperly included in the report “ despite numerous opportunities to do so

. ” Id. at 300, 843 S.E.2d at 782 . The Court

considered Rule 32 of the West Virginia Rules of Criminal Procedure and determined that “ the appropriat e time to object to any portion of a [PSI] report is prior to the sentencing hearing, or at the very least, for good cause, prior to the imposition of sentence. ” Id. at 298, 843 S.E.2d at 780.

The Court went on to hold , “W hen there has been a knowing and intentional relinquishment or abandonment of a known right, there is no error and the inquiry as to the effect of a deviation from

the rule of law need not be determined

. ” Id. at 293 , 843 S.E.2d at 775 , Syl. Pt. 3 (quoting Syl. Pt. 8, in part, State v. Miller , 194 W. Va. 3, 459 S.E.2d 114 (1995)). Consequently, in Bleck , the Court

determined that the defendant had waived the issue concerning the PSI report, and the Court affirmed the circuit court’s sentencing order

. See Miller , 194 W. Va. at 7, 459 S.E.2d at 118, Syl. Pt. 8, in part (holding that waiver is the “knowing and intentional relinquishment or abandonment of a known right”).

In the instant matter, petitioner reviewed the PSI report with his counsel prior to the sentencing hearing. P eti tioner made no objection to the PSI report before the sentencing hearing. At the sentencing hearing, p etitioner requested that a date in the PSI report be corrected; however,

he made no challenge to the inclusion of information concerning his juvenile deli nquency record. 4

3 West Virginia Code § 49

- 5

- 103 governs the confidentiality and permissible disclosure of juvenile records.

4 We observe that petitioner’s brief does not comply with Rule 10(c)(7) of the Rules of Appellate Procedure, which requires that petitioner’s argument “contain appropriate and specific citations to the record on appeal, including citations that pinpoint when and how the issues in the assignments of error were presented to the lower tribunal.” Having determined t hat the issue concerning petitioner’s juvenile delinquency information was not presented to the circuit court, petitioner’s failure to include citations to the appendix record as to th e issue is understandable; however, we find that petitioner’s brief cont ained absolutely no citations to the appendix record.4 Thus, in accordance with Bleck

, we must conclude that petitioner waived his argument concerning the content of the PSI report and the circuit court’s reliance on that content

. Assuming without deciding that petitioner correctly asserts th at a deviation from th e rule of law is present, the effect

of that deviation need not b e determined in light of petitioner’s waiver. See Bleck , 243 W. Va. at 293, 843 S.E.2d at 775, Syl. Pt. 3

.

We turn to petitioner’s assertion that the circuit court erred in finding that petitioner had a drug addiction problem and in rel ying on that finding in sentencing petitioner. We have said that

“ a criminal ‘ defendant has a due process right to be sentenced on the basis of accurate

information. ’” Id. at 297, 843 S.E.2d at 779 (quoting Fox v. State , 176 W. Va. 677, 682, 347 S.E.2d 197, 202 (1986)). However, we have also found that “ a criminal defendant may affirmatively waive this right by a failure to object at the time of sentencing. ” Id. at 298, 843 S.E.2d at 7 80

. W e find that petitioner did not object to the circuit court’s finding that petitioner had a drug addiction problem at any point during the proceedings be low

. Thus, as with his argument concerning his juvenile delinquency history, his argument that the circuit court erroneously found that he had a drug abuse problem has been waived.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: September 15, 2023

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton Justice C. Haley Bunn

A party’s f ailure to include appropriate and specific citations to the appendix record in his or her

brief severely hinders this Court’s review of the appeal. We caution that Rule 10(c)(7) permits the

C ourt to “disregard errors that are not adequately supported by specific references to the record on appeal.”