STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED State of West Virginia, 

April 12, 2013 Plaintiff Below, Respondent RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 vs) No. 11-1686 (Upshur County 11-F-64) 

Misty Dawn Linger, 

Defendant Below, Petitioner 

MEMORANDUM DECISION 

Petitioner Misty Dawn Linger, by counsel James E. Hawkins Jr., appeals the Circuit 

Court of Upshur County’s order entered on November 7, 2011, that sentenced petitioner to not 

less than one nor more than five years in prison for her plea to one count of child neglect creating 

a risk of serious bodily injury or death in violation of West Virginia Code § 61-8D-4(e). The 

State, by counsel, filed a summary response. 

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 is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

Petitioner was indicted on a single count of child neglect resulting in death in violation of 

West Virginia Code § 61-8D-4(a). The charge was precipitated by the May 28, 2009, death of 

petitioner’s three-and-a-half-year-old son, Elijah, who died, buckled into a car seat, in a closed 

car on a hot day. Following an April 27, 2011, mistrial due to a hung jury, petitioner pled guilty 

on August 15, 2011, to the lesser offense of child neglect creating a risk of serious bodily injury 

or death in violation of West Virginia Code § 61-8D-4(e). 

At petitioner’s August 15, 2011, plea hearing, the circuit court informed petitioner that 

her sentence was wholly in the court’s discretion and she might not receive probation or home 

confinement as a result of her plea even if the State recommended it. By order entered November 

10, 2011, the circuit court sentenced petitioner to not less than one nor more than five years in 

prison. The sentencing order was stayed pending this appeal. 

On appeal, petitioner argues that the circuit court erred by sentencing her to a term in 

prison as opposed to an alternative sentence, and by failing to consider all the permissive factors 

favoring an alternative sentence. Petitioner avers that she was not a danger to the community, 

was not likely to reoffend, had no criminal record, was a high school graduate with a job, had no 

problems with drugs or alcohol, and was a lifelong resident of Upshur County with significant 

roots in the community and community support. As such, petitioner claims that she was an ideal 

candidate for home confinement and/or probation. Petitioner also argues that her sentence shocks 

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the conscience because the only factor the circuit court considered was punishment and, perhaps, 

deterrence. 

“‘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).” Syl. Pt. 1, State v. James, 227 

W.Va. 407, 710 S.E.2d 98 (2011). Moreover, “‘[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. 

6, State v. Slater, 222 W.Va. 499, 665 S.E.2d 674 (2008) 

The circuit court did not abuse its discretion in sentencing petitioner. Petitioner’s 

sentence was within statutory limits and petitioner does not aver that her sentence was based on 

any impermissible factors. Moreover, petitioner’s sentence is not so lengthy that it is cruel and 

unusual or disproportionate to the offense to which she pled. Finally, petitioner benefitted by 

being allowed to plea to a lesser crime and was thereby spared a potential sentence of up to 

fifteen years in prison for child neglect resulting in death in violation of West Virginia Code § 

61-8D-4(a). 

In response to petitioner’s argument that the circuit court failed to consider the 

permissive factors favoring an alternative sentence, the record on appeal reveals that at 

petitioner’s sentencing hearing, the circuit court considered petitioner’s counsel’s lengthy 

argument which raised all of the permissive factors that petitioner raises in this appeal. 

For the foregoing reasons, we affirm the circuit court’s sentencing order. 

Affirmed. 

ISSUED: April 12, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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