State v. Arbough

• Decision Date: 06 September 2016
• Docket Number: No. 15-0685,15-0685
• Parties: State of West Virginia, Plaintiff Below, Respondent v. Dennis Abe Arbough, Defendant Below, Petitioner
• Court: West Virginia Supreme Court

State of West Virginia, Plaintiff Below, Respondent
v.
Dennis Abe Arbough, Defendant Below, Petitioner

No. 15-0685

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

September 6, 2016

(Randolph County 13-F-101)

MEMORANDUM DECISION

Petitioner Dennis Abe Arbough, by counsel Jeremy B. Cooper and James E. Hawkins Jr., appeals the Circuit Court of Randolph County's June 16, 2015, order sentencing him to a cumulative prison term of fifteen to fifty years; blood testing; sex-offender registration; and fifty years of supervised release for one count of second-degree sexual assault and one count of first-degree sexual abuse.¹ The State, by counsel David A. Stackpole, filed a response in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in considering certain recommendations at the time of sentencing that were based on his denial of guilt when he entered a Kennedy plea, which allows a defendant to plead guilty without admitting guilt.

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 2013, petitioner was indicted on the following eight felony counts: four counts of first-degree sexual assault; one count of kidnaping; two counts of third-degree sexual assault; and one count of first-degree sexual abuse. The indictment named two children as the victims of these alleged crimes.

In October of 2014, the circuit court held two plea hearings. At the first plea hearing, notwithstanding his agreement to plead guilty to two felony counts and have the remaining counts dismissed, petitioner maintained his innocence and requested a trial. However, the following day, petitioner and the State agreed that petitioner would enter a Kennedy/Alford plea

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to one count of second-degree sexual assault and one count of first-degree sexual abuse and have the remaining counts dismissed.² The circuit court convened a second plea hearing, and, at that hearing, petitioner assured the circuit court that he would not change his mind again. Petitioner was also warned that, under the plea, he could be sentenced to prison for a cumulative term of fifteen to fifty years and fined. Petitioner agreed that he understood this possibility and wished to continue with the plea. Ultimately, the circuit court accepted petitioner's plea to two felony counts and dismissed the remaining counts in the indictment. A pre-sentence investigation report (hereinafter "PSI") was then ordered to be prepared by adult probation services, and the matter was scheduled for sentencing.

Prior to the sentencing hearing, an adult probation officer completed the PSI in which he recommended that petitioner receive the maximum possible prison sentence and fine. The officer based his recommendation on petitioner's denial of wrong-doing, the nature of the offense, and other factors. The officer expressly stated that his recommendation was

due to the egregious and deplorable nature of this offense, the fact that there were multiple victims in this case that will be scared for life, and the fact that [petitioner] refused to participate in this investigation and denies any wrong doing despite pleading guilty to these offenses.

The circuit court continued petitioner's December of 2014 sentencing hearing so that he could receive a sixty-day sex offender risk assessment.

In March of 2015, a psychologist prepared the sex offender risk assessment in which he found that petitioner displayed "borderline intelligence" and "repeated signs of malingering in an attempt to avoid acknowledging or...