STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

State of West Virginia, Plaintiff Below, FILED 

Respondent January 17, 2014 

RORY L. PERRY II, CLERK 

vs) No. 13-0396 (Berkeley County 12-F-175) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

John Walters, Defendant Below, 

Petitioner 

MEMORANDUM DECISION 

Petitioner John Walters, by counsel Nicholas Forrest Colvin, appeals the Circuit Court of 

Berkeley County’s March 28, 2013, order sentencing him to consecutive terms of incarceration of 

one to fifteen years, two to ten years, and forty years following his guilty pleas to one count of 

burglary, one count of malicious assault, and one count of first degree robbery. The State, by 

counsel Cheryl K. Saville, filed a response and a supplemental appendix. On appeal, petitioner 

alleges that his sentence is impermissibly excessive and that he received ineffective assistance of 

counsel below. 

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 May of 2012, a Berkeley County Grand Jury indicted petitioner on the following 

charges: one count of burglary; one count of attempted murder; one count of malicious assault; 

one count of domestic battery; one count of first degree robbery; and one count of assault during 

the commission of a felony. The indictment stemmed from an incident during which petitioner 

used a crowbar and knife to gain entry to his ex-girlfriend’s home. The victim called 911 and 

stated she believed someone was in her home. While on the phone with emergency services, 

petitioner entered the victim’s bedroom and demanded money and other items. Petitioner then 

struck the victim with a hammer he obtained from the residence and left with the victim’s cell 

phone and approximately $700 from the home. 

Pursuant to an agreement, petitioner entered guilty pleas to one count of burglary, one 

count of malicious assault, and one count of first degree robbery in January of 2013. The 

remaining counts from the indictment were dismissed and the State further agreed not to bring a 

recidivist action against petitioner for prior felony convictions. Sentencing was left to the circuit 

court’s discretion and was continued to obtain a presentence investigation report. In March of 

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2013, the circuit court sentenced petitioner to the following terms of incarceration: one to fifteen 

years for burglary, two to ten years for malicious assault, and forty years for first degree robbery, 

said sentences to run consecutively. It is from the sentencing order that petitioner appeals. 

We have previously held that “‘[t]he Supreme Court of Appeals reviews sentencing orders 

. . . under a deferential abuse of discretion standard, unless the order violates statutory or 

constitutional commands.’ Syllabus Point 1, in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 

221 (1997).” Syl. Pt. 2, State v. Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010). Upon our 

review, we find no error in the circuit court’s sentencing of petitioner. To begin, petitioner makes 

no argument concerning the sentences for malicious assault or burglary. As such, the Court is not 

required to address these sentences. However, we note that the sentences imposed for malicious 

assault and burglary were done so within the applicable guidelines set forth in West Virginia 

Code §§ 61-2-9(a) and 61-3-11(a), and were not based on any impermissible factors. As such, 

these sentences are not subject to appellate review. Id. at 717, 696 S.E.2d at 19. 

Petitioner argues only that his forty-year sentence for first degree robbery is excessive in 

violation of Article III, Section 5 of the West Virginia Constitution. In addressing the limitation 

on appellate review of sentences as set forth above, however, we have stated that “[s]entences 

imposed under statutes providing no upper limits may be contested based upon allegations of 

violation of the proportionality principles contained in Article III, Section 5 of the West Virginia 

Constitution.” State v. Tyler, 211 W.Va. 246, 250, 565 S.E.2d 368, 372 (2002) (citing State v. 

Rogers, 167 W.Va. 358, 360, 280 S.E.2d 82, 84 (1981)). We note that the statute under which 

petitioner was sentenced for first degree robbery, West Virginia Code § 61-2-12(a), provides no 

upper limit. As such, petitioner’s sentence for this crime is reviewable. 

In addressing excessive sentences, this Court has held as follows: 

“In determining whether a given sentence violates the proportionality principle . . ., 

consideration is given to the nature of the offense, the legislative purpose behind 

the punishment, a comparison of the punishment with what would be inflicted in 

other jurisdictions, and a comparison with other offenses within the same 

jurisdiction.” Syl. Pt. 5, in part, Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 

S.E.2d 205 (1981). 

Syl. Pt. 5, State v. James, 227 W.Va. 407, 710 S.E.2d 98 (2011). Upon our review, the Court finds 

that petitioner’s forty-year sentence for first degree robbery is not excessive. First, the nature of 

the offense supports the circuit court’s sentence. While petitioner argues that the facts of the case 

and his acceptance of responsibility support a lesser sentence, the Court disagrees. Specifically, 

petitioner admitted that after discovering his ex-girlfriend was seeing someone new, he was 

consumed with anger to the point that he stopped going to work and eventually decided to use a 

knife and crowbar to break into the victim’s home with the intention of killing her and her new 

boyfriend. While inside the home, petitioner struck the victim with a hammer and inflicted 

injuries that required medical attention and caused partial memory loss in the victim. According 

to her impact statement, the victim has since sold her home because she is fearful of being alone 

and remains afraid to fall asleep. Based upon these facts, petitioner’s sentence is not excessive. 

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Second, the legislative purpose in enacting the statute under which petitioner was 

sentenced clearly supports the sentence imposed, as we have noted that first degree robbery is a 

dangerous crime involving “a high potentiality for violence and injury to the victim involved.” 

State v. Adams, 211 W.Va. 231, 234, 565 S.E.2d 353, 356 (2002) (quoting State v. Ross, 184 

W.Va. 579, 582, 402 S.E.2d 248, 251 (1990)). Finally, the punishment petitioner received is not 

excessive when compared to other jurisdictions or our own jurisdiction. In State v. King, 205 

W.Va. 422, 518 S.E.2d 663 (1999), this Court upheld an eighty-four year sentence for aggravated 

robbery in which no victims were injured, unlike the current matter. In addressing the 

appropriateness of that sentence, the Court also addressed cases from other jurisdictions wherein 

defendants received comparable sentences. Id. at 428-29, 518 S.E.2d at 669-70 (citing State v. 

Alsup, 239 Kan. 673, 722 P.2d 1100 (1986); Robinson v. State, 743 P.2d 1088 (Okla.Crim.App. 

1987); State v. Whitaker, 260 Kan. 85, 917 P.2d 859 (1996). For these reasons, it is clear that a 

comparison of punishments from within this jurisdiction and from other jurisdictions supports 

petitioner’s sentence. As such, we find that petitioner’s sentence is not unconstitutionally 

excessive. 

As to petitioner’s second assignment of error regarding alleged ineffective assistance of 

counsel, we decline to address this issue in light of our prior holdings. Specifically, 

[w]e have urged counsel repeatedly to think of the consequences of raising this 

issue on direct appeal. Claims that an attorney was ineffective involve inquiries 

into motivation behind an attorney’s trial strategies. See State v. Miller, 194 W.Va. 

3, 459 S.E.2d 114 (1995). Without such facts trial counsel’s alleged lapses or 

errors will be presumed tactical moves, flawed only in hindsight. What is more, in 

the event a defendant pursues his claim on direct appeal and it is rejected, our 

decision will be binding on the circuit court through the law of the case doctrine, 

‘leaving [defendant] with the unenviable task of convincing the [circuit court] 

judge that he should disregard our previous ruling.’ U.S. v. South, 28 F.3d 619, 629 

(7th Cir.1994). That is why in Miller we suggested that a defendant who presents 

an ineffective assistance claim on direct appeal has little to gain and everything to 

lose. 

State ex rel. Daniel v. Legursky, 195 W.Va. 314, 317 n.1, 465 S.E.2d 416, 419 n.1 (1995). 

According to petitioner, his original trial counsel failed to present him with a pre-arraignment plea 

offer from the State that was more favorable than what petitioner eventually accepted. While 

petitioner does present detailed argument and documents in support of his claim of ineffective 

assistance of counsel, the State also points out that several supporting documents were not 

included in the record below and are, therefore, improper for inclusion in the record on appeal. 

Further, the State argues that additional evidence is available that contradicts petitioner’s 

assertions in regard to this assignment of error. As such, the Court declines to address this issue 

on appeal because the record is insufficient. The claim of ineffective assistance of counsel would 

more appropriately be addressed pursuant to a petition for writ of habeas corpus. If he desires, 

petitioner may pursue a petition for writ of post-conviction habeas corpus. 

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For the foregoing reasons, the circuit court’s March 28, 2013, sentencing order is hereby 

affirmed. 

Affirmed. 

ISSUED: January 17, 2014 

CONCURRED IN BY: 

Chief Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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