State v. Nutter, 14-0444
Decision Date | 27 February 2015 |
Docket Number | No. 14-0444,14-0444 |
Court | West Virginia Supreme Court |
Parties | State of West Virginia, Plaintiff Below, Respondent v. Kristopher Dale Nutter, Defendant Below, Petitioner |
Petitioner and defendant below, Kristopher Dale Nutter, by counsel Paul S. Detch, appeals the March 18, 2014, order of the Circuit Court of Pocahontas County that sentenced him to one to five years of incarceration for each of two counts of delivering a controlled substance following a jury verdict. The State of West Virginia, by counsel Derek A. Knopp, filed a response in support of the circuit court's order.
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.
On April 18, 2013, petitioner was indicted on five counts of delivery of a controlled substance (marijuana), as follows: three counts relating to delivery to a confidential informant; one count of delivery to an undercover officer; and one count of delivery to one Teresa Teter. Petitioner represents that he offered to plead guilty to several misdemeanors or to one felony. The State refused petitioner's offer, advising him that it was willing to allow petitioner to plead guilty to all of the charges contained in the indictment in exchange for the State remaining silent at sentencing. Petitioner declined the State's counteroffer.
A jury trial was conducted on August 1, 2013. Petitioner was convicted of two felony counts1--one relating to delivering marijuana to an undercover officer and one relating to delivering marijuana to Teresa Teter. Petitioner was sentenced to one to five years of incarceration for each count. By order entered March 18, 2014, the circuit court ordered that the sentences be served concurrently; that the sentences be suspended; that petitioner be placed on probation for five years; and that he pay the costs of the proceedings (amounting to $2,917.85). The circuit court further ordered that petitioner not be subjected to any monetary fine. Thisappeal followed.
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. Rebecca F., 233 W.Va. 354, 758 S.E.2d 558 (2014) ).
In his first assignment of error, petitioner argues that West Virginia's system of designating all crimes as either a felony or misdemeanor violates the state constitutional provision requiring that "penalties shall be proportional to the character and degree of the offense." See W.Va. Const. art. III, § 5. Petitioner contends that the non-violent crimes of which he was convicted should not be categorized and punished in the same manner as more egregious offenses, particularly given that, in petitioner's view, marijuana is no longer considered to be a dangerous drug. We find petitioner's argument to be without merit.
Petitioner was convicted of violating West Virginia Code § 60A-4-401(a), which prohibits any person from manufacturing, delivering, or possessing with intent to manufacture or deliver, a controlled substance. A person convicted under this statute may be sentenced to one to five years in prison. Id. The classification of petitioner's crimes as felonies is solely within the province of the legislature. "The power of the Legislature to prescribe the punishment for the offense is very broad, and must be left to the judgment of that body as to what punishment will be adequate for the purpose of deterring others from the commission of crime, and for the reformation of the offender." State v. Painter, 135 W.Va. 106, 117, 63 S.E.2d 86, 94 (1950). See State v. Mann, 205 W.Va. 303, 316, 518 S.E.2d 60, 73 (1999) ) . The Legislature made a policy decision in classifying petitioner's crime as a felony, a decision with which this Court will not interfere. See State ex rel. Blankenship v. Richardson, 196 W.Va. 726, 731, 474 S.E.2d 906, 911 (1996) " ).
Furthermore, it is undisputed that petitioner was sentenced within the statutory limits for his crimes. "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." Syl. Pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982). See State ex rel. Hatcher v. McBride, 221 W.Va. 760, 764, 656 S.E.2d 789, 793 (2007) ( ).
Next, petitioner argues that because county governments are required to bear the costs for housing misdemeanants while the State bears the costs for housing felons,2 there exists "animpermissible pressure on counties to reduce their costs by charging and accepting pleas only for felonies." Petitioner argues that this dual system of financing violates article II, section 17 of the West Virginia Constitution, which provides, in part, that "justice shall be administered without sale." Petitioner surmises that the assistant county prosecuting attorney's refusal to negotiate a plea in this case was improperly motivated by the financial incentive related to the fact that the State, rather than the county, bears the cost of incarcerating felons. Petitioner argues further that he was ultimately sentenced to "the exact penalty as though he had been convicted of a misdemeanor" and that the only difference between the "felony charge and if he had been charged with a misdemeanor is simply the costs to the county."
Petitioner's supposition that there was undue pressure on the assistant county prosecutor to only accept a plea for the felonies as charged in the indictment is completely unfounded and unsupported in the record. Moreover, petitioner's crime—delivery of a controlled substance—was classified by the Legislature as a felony,3 and petitioner was properly charged and subsequently convicted of such a crime based upon his illegal activities.4 The State was not required to negotiate a plea. As we have previously stated, "" State v. Myers, 204 W.Va. 449, 457, 513 S.E.2d 676, 684 (1998) (quoting State ex rel. Brewer v. Starcher, 195 W.Va. 185, 192, 465 S.E.2d 185, 192 (1995) (internal citation omitted)).
Petitioner argues that the State must prove the foregoing by a preponderance of the evidence in order to criminalize marijuana or, at the very least, it must prove that the recommendation is current. Petitioner contends that, during trial, Carrie J. Kirkpatrick, an expert from the West Virginia State Police Crime Lab, testified that she did not know if marijuana metthe statutory requirements of a Schedule I substance. Petitioner argues that h...
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