State v. Tyler

565 S.E.2d 368

211 W.Va. 246

STATE of West Virginia, Plaintiff Below, Appellee, v. Lance Anthony TYLER, Defendant Below, Appellant.

No. 29759.

Supreme Court of Appeals of West Virginia.

Submitted January 15, 2002.

Decided March 15, 2002.

Dissenting Opinion of Justice Albright June 11, 2002.

Concurring Opinion of Justice Maynard July 2, 2002.

Darrell V. McGraw, Jr., Attorney General, Heather D. Foster, Assistant Attorney General, Charleston, for the Appellee.

D. Randall Clarke, Charleston, for the Appellant.

PER CURIAM.

This is an appeal from a final order of the Circuit Court of Kanawha County sentencing Mr. Lance Anthony Tyler (hereinafter "Appellant") to a term of thirty years for aggravated robbery. The Appellant contends that the sentence is unconstitutionally excessive and disproportionate to the character and degree of the offense committed. Having thoroughly reviewed the record, briefs, and arguments of counsel, we affirm the Appellant's sentence.

I. Facts and Procedural History

On August 17, 1998, two seventeen-year-old females were approached by two males as the females walked from the Town Center Mall in Charleston, West Virginia, to their vehicle parked in the mall parking garage. The Appellant and an unidentified accomplice approached the females and began speaking to them in an unoffensive manner. As the men followed the females, they walked closer, revealed a small automatic handgun,¹ and demanded money. One of the victims was forced to her hands and knees on the ground. The Appellant and his accomplice obtained money from the victims and then began to run away. They immediately returned, took the victims' car keys, and departed a second time.

The Charleston Police Department received two anonymous phone calls on August 18, 1998, in which one caller identified herself to police as a relative of the Appellant. The victims identified the Appellant in a photo array, a warrant was issued for the Appellant's arrest, and he turned himself in to the police on August 26, 1998. The Appellant refused to provide information regarding the identity of the accomplice, and the gun used in the robbery has not been recovered.

The Appellant was indicted for two counts of aggravated robbery in the September 1998 term, upon the information of Detective J.A. Rollins of the Charleston Police Department. The Appellant was thereafter arraigned before the lower court on November 19, 1998.²

The State offered a plea agreement to the Appellant, in which the Appellant would be permitted to plead guilty to only one count of aggravated robbery, rather than the two counts in the indictment. As part of the plea agreement, the State would recommend that the Appellant be sentenced to fifteen years incarceration. The Appellant accepted the plea agreement offer on April 19, 1999, and entered a plea of guilty to one count of aggravated robbery with the use of a firearm. The lower court accepted the Appellant's plea of guilty and denied post-conviction bond.

During the Appellant's June 7, 1999, sentencing hearing, the lower court heard arguments by counsel, reviewed the Adult Probation Presentence Report, heard oral presentations on behalf of the Appellant, and heard victim impact statements regarding the effects of this crime upon the victims. Mr. Leon Copeland, the father of one of the victims, requested the lower court to sentence the Appellant to a term of incarceration longer than the fifteen years recommended by the State.

By order dated October 14, 1999, the lower court sentenced the Appellant to thirty years with credit for time served. The Appellant filed a motion for reconsideration on December 22, 1999. Mr. Copeland thereafter drafted a letter to the lower court, requesting denial of the Appellant's motion for reconsideration of the sentence.³

During the May 23, 2000, hearing on the motion for reconsideration, the lower court entertained arguments of counsel and oral statements on behalf of the Appellant and the State. Mr. Copeland again addressed the court, suggesting that the thirty-year sentence should not be reduced. By order dated June 6, 2000, the lower court denied the Appellant's motion to reconsider the sentence. The lower court thereafter appointed counsel to represent the Appellant on appeal and granted an extension of time to file an appeal with this Court.

II. Standard of Review

This Court must review the thirty-year sentence imposed upon the Appellant. We have previously explained our standard of review in such cases as follows: "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).

III. Discussion

The Appellant contends that the lower court violated Article III, Section 5 of the West Virginia Constitution by sentencing him to thirty years for aggravated robbery. He maintains that the thirty-year sentence is excessive and disproportionate to the character and degree of his offense, particularly in light of the fact that the crime resulted in no physical harm to the victims, the Appellant had no prior felony convictions,⁴ the Appellant demonstrated no prior propensity toward acts of violence, the Appellant cooperated with authorities, and the evidence was conflicting regarding the degree of his involvement in the offense.⁵

In syllabus point eight of State v. Vance, 164 W.Va. 216, 262 S.E.2d 423 (1980), this Court explained:

Article III, Section 5 of the West Virginia Constitution, which contains the cruel and unusual punishment counterpart to the Eighth Amendment of the United States Constitution, has an express statement of the proportionality principle: "Penalties shall be proportioned to the character and degree of the offense."

Id. at 217, 262 S.E.2d at 425. In syllabus point four of State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982), this Court noted that "[s]entences imposed by the trial court, if within statutory limits and if not based on some impermissible factor, are not subject to appellate review." Id. at 366, 287 S.E.2d at 505. Sentences imposed under statutes providing no upper limits may be contested based upon allegations of violation of the proportionality principles contained in Article III, Section 5 of the West Virginia Constitution. State v. Rogers, 167 W.Va. 358, 360, 280 S.E.2d 82, 84 (1981). In Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981), this Court explained: "While our constitutional proportionality standards theoretically can apply to any criminal sentence, they are basically applicable to those sentences where there is either no fixed maximum set by statute or where there is a life recidivist sentence." Id. at 531, 276 S.E.2d at 211.

In this case sub judice, the Appellant was sentenced pursuant to West Virginia Code § 61-2-12 (2000) (Repl.Vol.2000), providing, in pertinent part, as follows: "Any person who commits ... robbery by ... us[ing] the threat of deadly force by the presenting of a firearm or other deadly weapon, is guilty of robbery in the first degree and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than ten years." We consequently examine the Appellant's disproportionality challenge under the two methods of evaluation consistently utilized by this Court and succinctly expressed in State v. Cooper, 172 W.Va. 266, 304 S.E.2d 851 (1983). In Cooper, this Court articulated the twofold analysis appropriate for the disproportionality challenge, as follows:

The first [test] is subjective and asks whether the sentence for the particular crime shocks the conscience of the court and society. If a sentence is so offensive that it cannot pass a societal and judicial sense of justice, the inquiry need not proceed further. When it cannot be said that a sentence shocks the conscience, a disproportionality challenge is guided by the objective test we spelled out in Syllabus Point 5 of Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981):

In determining whether a given sentence violates the proportionality principle found in Article III, Section 5 of the West Virginia Constitution, consideration is given to the nature of the offense, the legislative purpose behind the punishment, a comparison of the punishment with what would be inflicted in other jurisdictions, and a comparison with other offenses within the same jurisdiction.

Id. at 272, 304 S.E.2d at 857.

A. The Subjective Component

As this Court emphasized in State v. Ross, 184 W.Va. 579, 402 S.E.2d 248 (1990), "the fact that lengthy sentences have been imposed..." for the crime of aggravated robbery has not been exclusively determinative of whether the sentence "shocks the conscience of the Court and society." Id. at 582, 402 S.E.2d at 251. In determining whether a sentence shocks the conscience, all circumstances surrounding the offense must be considered. State v. Adams, 211 W.Va. 231, 565 S.E.2d 353 (2002); State v. King, 205 W.Va. 422, 428, 518 S.E.2d 663, 669 (1999); State v. Phillips, 199 W.Va. 507, 513, 485 S.E.2d 676, 682 (1997).

In the case sub judice, the Appellant robbed two minor female victims in a daytime robbery at gunpoint. One of the victims was forced to the ground on her hands and knees during a portion of the armed robbery. The present case differs substantially from the circumstances of Cooper, in which this Court reversed a forty-five year sentence for robbery. 172 W.Va. at 272,304 S.E.2d at 857. The defendant in Cooper was nineteen years of age, and his criminal history included only a previous arrest for public intoxication. He and an accomplice had beaten and robbed the victim. In remanding the case to the trial court for re-sentencing, this Court emphasized the limited criminal history and observed that no weapon was involved in the crime. This Court found "Cooper's sentence ... so offensive to a system of...