STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

State of West Virginia, FILED 

Plaintiff Below, Respondent March 13, 2017 

RORY L. PERRY II, CLERK 

vs) No. 16-0089 (Hampshire County 15-F-26) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Kevin Richard Helms, 

Defendant Below, Petitioner 

MEMORANDUM DECISION 

Petitioner Kevin Richard Helms, by counsel Eric S. Black, appeals the Circuit Court of 

Hampshire County’s January 5, 2016, order sentencing him to a term of incarceration of not less 

than one nor more than five years for one count of child abuse resulting in injury. Respondent, 

the State of West Virginia, by counsel Shannon Fredrick Kiser, filed a response. On appeal, 

petitioner argues 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 January of 2015, petitioner was on indicted on three counts of child abuse resulting in 

injury, in violation of West Virginia Code § 61-8D-3(a); one count of malicious assault, in 

violation of West Virginia Code § 61-2-9; and two counts of failure to report child abuse, in 

violation of West Virginia Code § 49-6A-2(a).1 The charges were the result of an investigation 

into petitioner’s abusive actions while he was a supervisor and caretaker at the Potomac Center.2 

In March of 2015, petitioner, with the assistance of counsel, entered into a plea 

agreement with respondent whereby he pled guilty to one count of child abuse resulting in injury 

pursuant to West Virginia Code § 61-8D-3(a). The remaining counts of the indictment were 

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We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and 

recodified during the 2015 Regular Session of the West Virginia Legislature. The new 

enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and 

became effective ninety days after the February 19, 2015, approval date. West Virginia Code § 

49-6A-2(a) can now be found at West Virginia Code § 49-2-803(a). 

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The Potomac Center, located in Romney, West Virginia, provides a variety of residential 

support and assistance for individuals with intellectual and developmental disabilities. 

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dismissed. On December 7, 2015, the circuit court held a sentencing hearing wherein it heard the 

arguments of counsel, petitioner’s statement to the police, and a brief statement by the guardian 

appointed to represent the interests of the physically abused children. Petitioner’s counsel argued 

that petitioner accepted responsibility for his actions, had a low risk of recidivism, and was a 

good candidate for probation. Petitioner testified that his work and family obligations warranted 

alternative sentencing. Respondent countered that petitioner committed numerous acts of 

misconduct throughout his term of employment with the Potomac Center and was suspended at 

least seven times. Following the presentation of evidence, the circuit court sentenced petitioner 

to a term of incarceration of not less than one nor more than five years for child abuse resulting 

in injury. The circuit court denied petitioner’s motion for probation or alternative sentencing. 

Petitioner was sentenced by order entered on January 5, 2016. It is from this order that petitioner 

now appeals. 

Regarding petitioner’s claim that the circuit court erred in imposing his sentence, 

petitioner argues that his sentence is excessive because he presented “strong evidence that he was 

a good candidate for probation” and that the imposition of incarceration would be an “extreme 

hardship” on his family. This Court has previously held that it reviews “sentencing orders . . . 

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

constitutional commands.” Syl. Pt. 2, in part, State v. Georgius, 225 W.Va. 716, 696 S.E.2d 18 

(2010). We have also 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).” 

Georgius, 225 W.Va. at 719, 696 S.E.2d at 21. We note that petitioner’s sentence for his crime is 

within the applicable statutory limitations and petitioner does not allege that his sentence was 

based on any impermissible factor. 

West Virginia Code § 61-8D-3(a) provides that 

[i]f any parent, guardian or custodian shall abuse a child and by such abuse cause 

such child bodily injury as such term is defined in section one, article eight-b of 

this chapter, then such parent, guardian or custodian shall be guilty of a felony 

and, upon conviction thereof, shall be fined not less than $100 nor more than 

$1,000 and imprisoned in a state correctional facility for not less than one nor 

more than five years . . . 

Petitioner was sentenced to a period of not less than one year nor more than five years for this 

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

Thus, petitioner’s sentence is not reviewable on appeal. 

For the foregoing reasons, the circuit court’s January 5, 2016, sentencing order is hereby 

affirmed. 

Affirmed. 

ISSUED: March 13, 2017 

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CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

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