State v. Booth

• Decision Date: 29 October 2009
• Docket Number: No. 34711.,34711.
• Citation: 224 W.Va. 307,685 S.E.2d 701
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Richard BOOTH, Defendant Below, Appellant.

685 S.E.2d 701

224 W.Va. 307

STATE of West Virginia, Plaintiff Below, Appellee, v. Richard BOOTH, Defendant Below, Appellant.

No. 34711.

Supreme Court of Appeals of West Virginia.

Submitted October 6, 2009.

Decided October 29, 2009.

Syllabus by the Court

1. "The Supreme Court of Appeals reviews sentencing orders ... under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands." Syllabus point 1, in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).

2. "Sentences 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).

3. "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." Syllabus point 4, Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981).

4. "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 offence.'" Syllabus point 8, State v. Vance, 164 W.Va. 216, 262 S.E.2d 423 (1980).

5. "Punishment may be constitutionally impermissible, although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity, thereby violating West Virginia Constitution, Article III, Section 5 that prohibits a penalty that is not proportionate to the character and degree of an offense." Syllabus point 5, State v. Cooper, 172 W.Va. 266, 304 S.E.2d 851 (1983).

6. "Disparate sentences for codefendants are not per se unconstitutional. Courts consider many factors such as each codefendant's respective involvement in the criminal transaction (including who was the prime mover), prior records, rehabilitative potential (including post-arrest conduct, age and maturity), and lack of remorse. If codefendants are similarly situated, some courts will reverse on disparity of sentence alone." Syllabus point 2, State v. Buck, 173 W.Va. 243, 314 S.E.2d 406 (1984).

Thomas Moore, Assistant Public Defender, First Judicial Circuit Public Defender Corp., Wheeling, WV, for the Appellant, Richard Booth.

Scott R. Smith, Ohio County Prosecuting, Attorney Stephen L. Vogrin, Assistant Prosecuting Attorney, Wheeling, WV, for the Appellee, State of West Virginia.

PER CURIAM:

The defendant below and appellant herein, Richard "Ricky" Booth (hereinafter "Mr. Booth"), appeals from an order entered May 23, 2008, by the Circuit Court of Ohio County. By that order, the circuit court sentenced Mr. Booth to a period of eighty years in the penitentiary following Mr. Booth's guilty plea to the felony offense of first degree robbery. On appeal to this Court, Mr. Booth argues that the sentence violates both state and federal constitutional law because the time period is impermissibly harsh and disproportionate to the crime committed. Based upon the parties' arguments, the record designated for our consideration, and the pertinent authorities, we affirm the sentencing decision by the circuit court.

I. FACTUAL AND PROCEDURAL HISTORY

The relevant facts of the case are largely undisputed. On March 21, 2007, Mr. Booth, along with three other people,¹ drove to Wheeling, West Virginia. Mr. Booth was twenty years of age at the time. Mr. Booth asserts that the trip was for the purpose of looking for employment. However, Mr. Booth concedes that he had ingested approximately twenty-five Xanax pills that morning and that he was also in an altered state from smoking marijuana. Upon arriving in Wheeling, the foursome embarked in a plan to obtain money so that they could purchase more illegal drugs. They attempted to sell fake crack; however, they were unable to find anyone to buy the fake drugs. The group then decided that they would steal money to support their drug needs.

Ms. Linda Carney, an elderly woman walking with a cane, was spotted. Mr. Booth followed Ms. Carney to her apartment and attempted to gain access to her apartment on at least three separate occasions under the auspices of needing help with a car repair, needing to use the telephone, and needing a drink of water. Ms. Carney was suspicious, however, and denied him entry.² Mr. Booth returned to the group in the car. They proceeded to drive the streets of Wheeling until Ms. Wood spotted Mrs. Doris Schafer, along with her husband, on the street outside of a restaurant. Upon spotting Mrs. Schafer and her husband on the sidewalk, Mr. Booth and the juvenile male exited the car and followed Mrs. Schafer down the street. Mr. Booth approached Mrs. Schafer from behind and grabbed her purse in an attempt to pull it off of her shoulder. In the process, Mrs. Schafer fell to the ground screaming as she clutched her purse. Mr. Booth released the purse, and both he and the juvenile male ran back to the vehicle.

An onlooker witnessed the event and provided the authorities with the car's license plate number, which resulted in all of the occupants' arrest. Mr. Booth was charged with two counts of attempted first degree robbery, assault in the commission of a felony, and conspiracy to commit robbery. On June 8, 2007, Mr. Booth entered into a plea agreement with the State wherein he agreed to plead guilty to one count of first degree robbery³ in exchange for the dismissal of the remaining counts. In the plea agreement, the State agreed not to seek a longer sentence than what would be recommended in the pre-sentence investigation report prepared by the probation officer. The lower court accepted the guilty plea and ordered a pre-sentence investigation report.

In the pre-sentence investigation report, the probation officer recommended a sentence of eighty years. Further, the probation officer discouraged the use of alternative sentencing practices such as home incarceration or probation due to the violent and serious nature of this particular crime.⁴ The pre-sentence investigation report justified the length of the recommended sentence by analyzing the specifics of this case. First, the report reasoned that Mr. Booth's crime essentially had two victims: Mrs. Schafer and her ill husband. Mrs. Schafer, prior to the crime, provided the primary care for her infirm husband, and he was present at the scene of the crime but was unable to aid his wife due to his poor physical health.

Second, the report recognized that Mrs. Schafer was seriously injured as a result of the crime. At the time of the incident, Mrs. Schafer was eighty-two years old and in good health. She was the primary caregiver for her infirm husband who was eighty-seven years of age at the time of the crime. Mrs. Schafer was also an active walker and frequently babysat her nine-year-old grandson. As a result of this crime, she has necessitated two surgeries, which included one to place pins in her hip and a second emergency surgery to repair her femur.⁵ Prior to this crime, Mrs. Schafer was completely independent and able to ambulate without assistance. Since the crime and the resultant surgeries, Mrs. Schafer can no longer walk without the aid of a walker, and must hop on one leg even with the use of a walker, and she can no longer care for her husband or her grandson. Mrs. Schafer has not yet been able to return to her home from rehabilitation due to the accommodations that her home will now require to allow her access therein. The victim impact statement prepared by Mrs. Schafer and presented to the circuit court during the sentencing hearing explained as follows:

This has turned my life completely upside-down. I went from being an active helper for my husband (who has great difficulty walking as well as standing for any length of time) and an "always available" baby-sitter for my 9-yr. old grandson and enjoying many activities including going to the Wellness Center and walking anywhere I wanted, into a helpless person who can't even go to the bathroom without assistance. This has been a devastating blow to me and my family. We are faced with many expensive co-pays on our insurance coverage, making arrangements for help at home, and some renovations to our house to make it suitable for my return there. Also, I am facing an uncertain future in many ways. I suffer from anxiety for which I should be receiving treatment but unable to attend because of my confinement. I have literally been robbed of a large chunk of my remaining life.

Third, the probation officer's recommended sentence was further bolstered by Mr. Booth's prior criminal record. The nature of the current crime was violent, and his record shows a history of numerous felony and misdemeanor offenses. In 2004, Mr. Booth entered a no contest plea to a charge of petit larceny and was sentenced to thirty days in jail, suspended for six months of probation. In Ohio in 2005, Mr. Booth entered a guilty plea to misdemeanor theft and was sentenced to ninety days in jail with eighty-eight days suspended for two years of unsupervised probation. Mr. Booth entered into a plea agreement in 2006, wherein he pled guilty to two felony offenses of petit larceny in exchange for dismissal of three counts of entering without breaking into an automobile. He was sentenced to a one-year sentence for each count, to be served concurrently, and was released from the penitentiary after discharging his sentence. One month after his release, he was charged with the felony offense of delivery of a controlled substance within one thousand feet of a school.⁶ Mr. Booth was on bond for this alleged offense at the time of the commission of the...