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 impermissible 

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 

structures—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 

court 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 information 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 VIRGINIA
2

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

stated 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 report. 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.

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

form of probation or house arrest. The circuit court denied the request, explaining:

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 longterm history with marijuana use from age 13 years until 2020, and you’ve 

acknowledged that you’ve experimented with other drugs . . . .

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 violate 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 alternative 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 appeals the sentencing order to this 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 sentence 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. Oct. 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, he contends that the circuit court relied on impermissible factors in 
3

imposing his sentence. First, he argues that petitioner’s juvenile records were disclosed in the PSI 

report in violation of West Virginia Code § 49-5-1033 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, the 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 grant 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 before 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 reviewed the PSI report 

prior to the sentencing hearing.” Id. at 300, 843 S.E.2d at 782. Based on those findings, the Court 

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

inform the circuit court that the . . . charge 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 

appropriate 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, “When 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. Petitioner made no objection to the PSI report before the sentencing hearing. 

At the sentencing hearing, petitioner requested that a date in the PSI report be corrected; however, 

he made no challenge to the inclusion of information concerning his juvenile delinquency 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 that 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 the issue is understandable; 

however, we find that petitioner’s brief contained 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 that a deviation from the rule of law is present, the effect 

of that deviation need not be 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 relying 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 780. We

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 below. 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 failure 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 

Court to “disregard errors that are not adequately supported by specific references to the record on 

appeal.”