STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

State of West Virginia, Plaintiff Below, 

Respondent FILED 

March 7, 2016 

vs) No. 15-0536 (Jackson County 14-F-73) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA William White, Defendant Below, 

Petitioner 

MEMORANDUM DECISION 

Petitioner William White, by counsel Kevin B. Postalwait, appeals the Circuit Court of 

Jackson County’s May 8, 2015, order sentencing him to a term of incarceration of one to five 

years following his guilty plea to one count of conspiracy to commit a felony. The State, by 

counsel Nic Dalton, filed a response. On appeal, petitioner alleges that the circuit court erred in 

imposing his 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. 

In June of 2014, petitioner was indicted for the following crimes: one count of possession 

of a controlled substance, marijuana, with intent to deliver; one count of possession of a 

controlled substance, heroin, with intent to deliver; one count of possession of a controlled 

substance, oxycodone, with intent to deliver; one count of possession of a controlled substance, 

hydrocodone, with intent to deliver; and one count of conspiracy to commit a felony. These 

charges arose out of petitioner’s statement to police that he and two co-defendants were living 

together and that one co-defendant was bringing drugs from Detroit to sell in the area. 

In December of 2014, petitioner entered a guilty plea to one count of conspiracy to 

commit a felony, and the circuit court ultimately imposed the maximum sentence of one to five 

years of incarceration. Following sentencing, petitioner filed a motion for reconsideration of his 

sentence under Rule 35 of the West Virginia Rules of Criminal Procedure. However, the circuit 

court entered an order denying that motion without a hearing on August 12, 2015. It is from the 

sentencing order that petitioner appeals. 

We have previously 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.’ 

Syllabus Point 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).” Syl. Pt. 3, State v. 

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Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010). We note that petitioner’s sentence for his crime 

is within the applicable statutory limitations. Specifically, West Virginia Code § 61-10-31 states 

that 

[a]ny person who violates the provisions of this section by conspiring to commit 

an offense against the State which is a felony, . . . shall be guilty of a felony, and, 

upon conviction thereof, shall be punished by imprisonment in the penitentiary for 

not less than one nor more than five years . . . . 

As such, it is clear that petitioner was sentenced within the applicable statutory guidelines and 

his sentence is not reviewable on appeal. 

This is especially true in light of the fact that petitioner does not allege that the circuit 

court based its sentence on any impermissible factor. Instead, petitioner argues that the circuit 

court simply abused its discretion in denying him alternative sentencing. Petitioner bases this 

assertion on the fact that his co-defendant was granted probation, the State initially 

recommended home incarceration and later did not opposed probation, and his own efforts at 

attending counseling and treatment for substance abuse. The Court, however, notes that none of 

these issues constitute an allegation that the circuit court based petitioner’s sentence on an 

impermissible factor. As such, we reiterate that petitioner’s sentence is, therefore, not reviewable 

on appeal. 

For the foregoing reasons, the circuit court’s May 8, 2015, sentencing order is hereby 

affirmed. 

Affirmed. 

ISSUED: March 7, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

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