1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia,

Plaintiff Below, Respondent

vs.) No. 18-0649 (Preston County 17-F-26)

David N.,

Defendant Below, Petitioner

MEMORANDUM DECISION

Petitioner David N., by counsel William B. Summers, appeals the Circuit Court of Preston 

County’s June 15, 2018, order sentencing him to an effective term of ten to twenty years of 

incarceration following the entry of his guilty plea to two counts of sexual abuse by a parent, 

guardian, custodian, or person in a position of trust.1 The State of West Virginia, by counsel Robert 

L. Hogan, filed a response. On appeal, petitioner argues that the circuit court erred in sentencing 

him to incarceration rather than alternative sentencing and considering an impermissible factor at 

sentencing. 

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 March of 2017, petitioner was indicted on nine counts of first-degree sexual assault and 

eleven counts of sexual abuse by a parent, guardian, custodian, or person in a position of trust. On 

January 11, 2018, petitioner entered into a plea agreement with the State wherein he pled guilty to 

two counts of sexual abuse by a parent, guardian, custodian, or person in a position of trust in 

exchange for the State’s dismissal of the remaining charges. The parties also agreed that the State 

would make no recommendation as to sentencing, except to agree that were petitioner sentenced 

 

1Consistent with our long-standing practice in cases with sensitive facts, we use initials 

where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va. 

254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419 (2013); 

State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W.

Va. 641, 398 S.E.2d 123 (1990).

FILED

January 17, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

to incarceration, his sentences for each of the two counts would run concurrently, and that 

petitioner would be subject to the sex offender registration and any relevant restitution 

requirements.

Petitioner’s sentencing hearing was held on May 23, 2018. Counsel for petitioner argued 

for alternative sentencing, stating that petitioner underwent a psychological evaluation, the results 

of which indicated that petitioner’s risk of reoffending fell within the “very low risk” range.

Accordingly, the evaluators opined that petitioner’s prognosis for functioning under the terms of 

supervised release was positive. However, areas of concern included potential irresponsibility, 

negative feelings, poor self-esteem, and problems in relationships. While the evaluators made no 

recommendation as to whether petitioner should be granted alternative sentencing, they provided 

the court with a list of recommendations, should the circuit court elect to sentence petitioner to 

supervised release. Petitioner also underwent a presentence investigation, which revealed that he

had no prior criminal history. Further, the officer who authored the report opined that petitioner 

had accepted responsibility for the crimes for which he had been convicted and expressed remorse 

for the same. Of note, the officer expressed that petitioner tended to externalize blame in his 

statement for the report. Petitioner spoke on his own behalf, expressing his remorse over the 

situation and detailing the steps he had already taken to make restitution to the family. Following 

argument, the circuit court noted that, “[t]here are two or three things that could happen.” The 

court stated that it could send petitioner for a “pre-sentence diagnostic;” order home incarceration, 

although not practical in this case; or sentence petitioner and allow him to file a motion for 

reduction of sentence under Rule 35(b) of the West Virginia Rules of Criminal Procedure, should 

he so choose.2 The circuit court noted that 

I tell people, remind lawyers, that there’s Rule 35[(b)] so that [is] something that 

could happen . . . . It might be an opportunity for counsel to find out what the other 

side of the picture is in terms of the family and the victim and by the time they file 

the hearing on 35[(b)], you might have another side to the cheering gallery here at 

the sentencing table.

Later, the circuit court again suggested that petitioner could file a motion under Rule 35(b). The 

court noted that, were it to be assigned to hear petitioner’s motion for reduction of sentence, it 

would give “very, very, very serious consideration” to anything the victim or her family had to 

say, were petitioner’s counsel to procure their statements. 

 

2Rule 35(b) of the West Virginia Rules of Criminal Procedure provides that 

[a] motion to reduce a sentence may be made, or the court may reduce a sentence 

without motion within 120 days after the sentence is imposed or probation is 

revoked, or within 120 days after the entry of a mandate by the supreme court of 

appeals upon affirmance of a judgment of a conviction or probation revocation or 

the entry of an order by the supreme court of appeals dismissing or rejecting a 

petition for appeal of a judgment of a conviction or probation revocation. The court 

shall determine the motion within a reasonable time. Changing a sentence from a 

sentence of incarceration to a grant of probation shall constitute a permissible 

reduction of sentence under this subdivision.
3

Having discussed its options, the circuit court incorporated the findings of fact in the 

presentence investigation report and sentenced petitioner to concurrent terms of not less than ten

nor more than twenty years of incarceration for the two counts of sexual abuse by a parent, 

guardian, custodian, or person in a position of trust, with two years of supervised release. 

Throughout the hearing, the court commented on several bases for incarceration rather than 

alternative sentencing. The circuit court noted that, contrary to petitioner’s claims that 

imprisonment was “not going to help anybody,” imprisonment could potentially help the victim 

and her family. Additionally, public sentiment often demanded that offenses such as those 

committed by petitioner not be treated lightly. The circuit court also noted that home incarceration 

was not practical given the “circumstances of the case.”

3 Petitioner’s sentences were memorialized 

in the circuit court’s June 15, 2018, sentencing order, and it is from this order that he appeals. 

This Court 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. Adams, 

211 W. Va. 231, 565 S.E.2d 353 (2002). We have also 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.” Syl. Pt. 4, State v. Goodnight, 169 W. Va. 366, 287 S.E.2d 504 (1982). 

On appeal, petitioner argues that the circuit court erred in sentencing him to the “maximum 

sentence allowed by law” without making sufficient findings as to why it chose that sentence over 

some alternative sentencing such as probation.4 Petitioner states that the circuit court did not 

consider any of the positive aspects of the psychological evaluation, the presentencing report, his 

allocution, or his counsel’s arguments. Specifically, petitioner points out that he fell within the 

“very low risk of reoffending” range and expressed remorse for his actions. He further contends 

that the circuit court’s “requirement” that he procure a statement from the victim was an 

impermissible factor. Petitioner asserts that this requirement impermissibly shifted the burden of 

procuring the victim’s participation to him and essentially precluded him from any alternative 

sentencing. 

 

3Petitioner is the victim’s grandfather. 

4Clearly, petitioner does not contest that his sentence was outside of statutory limits. In 

fact, we note that petitioner’s sentences were ordered to run concurrently. This Court has held that 

“‘“When a defendant has been convicted of two separate crimes, before 

sentence is pronounced for either, the trial court may, in its discretion, provide that 

the sentences run concurrently, and unless it does so provide, the sentences will run 

consecutively.” Syllabus point 3, Keith v. Leverette, 163 W.Va. 98, 254 S.E.2d 700 

(1979).’ Syllabus Point 3, State v. Allen, 208 W.Va. 144, 539 S.E.2d 87 (1999).” 

Syl. Pt. 7, State ex rel. Farmer v. McBride, 224 W.Va. 469, 686 S.E.2d 609 (2009).

Syl. Pt. 4, State v. Marcum, 238 W. Va. 26, 792 S.E.2d 37 (2016). While petitioner claims to have 

been sentenced to the “maximum sentence allowed by law,” he fails to recognize that absent the 

circuit court’s affirmative decision to provide petitioner some leniency by ordering concurrent 

sentences, the sentences would have been consecutive, resulting in a longer effective sentence.
4

We find no merit to petitioner’s claim that the circuit court denied him alternative 

sentencing until he could procure the victim’s participation. Prior to petitioner’s request for 

alternative sentencing and any mention of the victim’s desires, the circuit court asked him “you 

realize that I would be sentencing you to . . . two counts, for which, I think, [is] 10 to 20 years; is 

that right?” To which petitioner responded, “[y]es, your honor.” Accordingly, petitioner was aware 

that the circuit court was contemplating sentencing him in accordance with the statutory limits 

prior to finding out about the victim’s lack of participation in sentencing. Moreover, the record is 

clear that the circuit court considered a number of permissible factors in deciding to sentence 

petitioner to incarceration. The circuit court noted that public opinion often demands that offenses 

such as the ones committed by petitioner not be treated lightly. Additionally, the circuit court noted 

that incarceration could help the victim and her family, and that home incarceration was 

impractical given the circumstances of the case. Accordingly, we find no merit in petitioner’s claim 

that the circuit court’s sentencing rationale is not reflected in the record. Lastly, contrary to 

petitioner’s argument, the circuit court did not require petitioner to seek out the victim’s statement 

before it would consider alternative sentencing. Rather, the circuit court was simply providing 

petitioner with an avenue to have his sentence reduced in the future, should he choose to pursue 

that option. Accordingly, we find that the circuit court did not abuse its discretion in this regard.

For the foregoing reasons, the circuit court’s June 15, 2018, sentencing order is hereby 

affirmed.

Affirmed.

ISSUED: January 17, 2020 

CONCURRED IN BY:

Chief Justice Tim Armstead 

Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison