State v. Tusing

1

State of West Virginia, Plaintiff Below, Respondent v. Kelly Marie Tusing, Defendant Below, Petitioner

No. 22-809

Supreme Court of Appeals of West Virginia

March 20, 2024

(Preston County 19-F-49)

MEMORANDUM DECISION

Petitioner Kelly Marie Tusing appeals the order of the Circuit Court of Preston County, entered on September 21, 2022, that resentenced her (on remand) for her conviction of death of a child by a parent, guardian, or custodian by child abuse ( W.Va. Code § 61-8D-2a(a)).^[1] She argues that when imposing sentence, the circuit court erred by recommending that she never be granted parole. Upon our review, we determine that oral argument is unnecessary and that a memorandum decision is appropriate. See W.Va. R. App. P. 21.

Ms Tusing was tried by a jury, in 2020, for the death of an infant child left in her care. The jury found her guilty, and the circuit court sentenced her to imprisonment for a determinate term of one hundred years. Ms. Tusing appealed her conviction and sentence. While we upheld Ms. Tusing's criminal conviction, we reversed and remanded the matter to the circuit court because "[u]nder the indeterminate sentence law, the trial court in imposing sentence is only empowered to impose a general sentence of imprisonment in the penitentiary as provided by law for the offense involved[.]" State v. Tusing, 247 W.Va. 145 154, 875 S.E.2d 283, 292 (2022) (quoting Syl. Pt. 4, in part Cohn v. Ketchum, 123 W.Va. 534, 17 S.E.2d 43 (1941)). The punishment authorized by statute for Ms. Tusing's conviction is an indeterminate sentence of fifteen years to life. See W.Va. Code § 61-8D-2a(c).

When ordering remand, we opined that West Virginia Code § 61-11-16

allows a court to add a suggestion to its sentencing order as to the length of time an offender should serve, in the court's opinion, before being granted parole-a recommendation that is not binding, as parole eligibility is determined by statute, W.Va. Code § 62-12-13(b)(1)(A), and "[t]he final determination regarding the release of inmates from penal institutions . . . shall remain within the exclusive jurisdiction of the board of probation and parole[,]" W.Va. Code § 62-13-2(b) (2020).

Tusing, 247 W.Va. at 154-55, 875 S.E.2d at 292-93. Ms. Tusing appeared for resentencing in September 2022, and the circuit court imposed the statutory sentence of a term of imprisonment for fifteen years to life. The circuit court's sentencing order contained the court's "affirmative recommendation . . . that [Ms. Tusing] serve a full life sentence."

On appeal, Ms. Tusing asserts a single assignment of error. She argues that the circuit court exceeded its authority when recommending that she "never be granted parole." In support of this assignment of error, she argues that this Court misapprehended West Virginia Code § 61-11-16 in allowing the circuit court to advise on the length of time Ms. Tusing should serve before being granted parole. "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.' Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995)." Syl. Pt. 1, State v. McCartney, 228 W.Va. 315, 719 S.E.2d 785 (2011). We further note that unless a sentence "violates statutory or constitutional commands," we review a court's imposition of a sentence for an abuse of discretion. Syl. Pt. 1, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997). Still, "[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).

Our guidance in Tusing is explicit and consistent with legislative intent. Moreover, were we to find the circuit court's recommendation incompatible with statutory construction, the sentence would nevertheless not be reviewable because it is within the range prescribed by statute and there is no evidence that the recommendation was based on an impermissible factor. See State v Bennett, 172 W.Va. 123, 130, 304 S.E.2d 28, 35 (1983) (circuit court did not err, though it would have been impossible for the parole board to follow the circuit court's recommendation). As we explained in Tusing, the circuit court's recommendation is...