State v. Rebecca F.
| Citation | 233 W.Va. 354,758 S.E.2d 558 |
| Decision Date | 08 May 2014 |
| Docket Number | No. 13–0311.,13–0311. |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia, Plaintiff Below, Respondent v. REBECCA F., Defendant Below, Petitioner. |
OPINION TEXT STARTS HERE
Syllabus by the Court
1. “The Supreme Court of Appeals reviews sentencing orders, including orders of restitution made in connection with a defendant's sentencing, under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands.” Syllabus Point 1, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).
2. Syllabus Point 3, State v. Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010).
3. W.Va.Code § 61–11A–4(a) [2006] contained in the Victim Protection Act of 1984,W.Va.Code § 61–11A–1 et seq. [1984], requires a circuit court, absent a finding of impracticality, to order a defendant convicted of a felony or misdemeanor causing psychological or economic injury or loss to a victim, to make restitution to the victim of the offense. W.Va.Code § 61–11A–4 does not contain specific factors a circuit court should consider when formulating a restitution award to a victim who suffers psychological or economic injuries pursuant to W.Va.Code § 61–11A–4(a). Therefore, a circuit court formulating a restitution award to a victim who suffers psychological or economic injuries pursuant to W.Va.Code § 61–11A–4(a), should consider the factors set forth in W.Va.Code § 61–11A–5(a) [1984] of the Victim Protection Act of 1984. These factors include (1) the amount of the loss sustained by the victim as a result of the offense; (2) the financial resources of the defendant; (3) the financial needs and earning ability of the defendant and the defendant's dependents; and (4) such factors as the court deems appropriate.
Christopher J. Prezioso, Esq., Luttrell & Prezioso, PLLC, Charles Town, WV, for the Petitioner.
Cheryl K. Saville, Esq., Assistant Prosecuting Attorney, Martinsburg, WV, for the Respondent.
Petitioner Rebecca F.1 (“defendant”) appeals the February 4, 2013, order of the Circuit Court of Berkeley County sentencing her to an effective five-year prison term and ordering her to pay restitution following her guilty plea to eight counts of identity theft. The defendant was ordered to pay restitution to six financial institutions and to the person whose identity she stole—her daughter. The defendant opened a number of fraudulent accounts in her daughter's name beginning when her daughter was fourteen years old. 2 At the time of sentencing, the defendant's daughter had reached the age of majority and these fraudulent accounts resulted in the daughter's credit rating being ruined.
On appeal, the defendant raises two assignments of error. She argues that the circuit court erred by (1) sentencing her to prison instead of placing her on probation or home confinement, and (2) ordering her to pay restitution to her daughter. The defendant has not challenged the circuit court's order that she pay restitution to the six financial institutions.
After review, we find no error and, accordingly, affirm the circuit court's sentencing order.
In February 2011, a Berkeley County Grand Jury indicted the defendant on eleven counts of child abuse with bodily injury in violation of W.Va.Code § 61–8D–3(a) [1996], and eight counts of identity theft in violation of W.Va.Code § 61–3–54 [1998]. The eight counts of identity theft alleged that the defendant fraudulently used her fourteen-year old daughter's identity (name, birth date, and social security number) “for the purpose of making financial or credit transactions” in her daughter's name. On April 2, 2012, the defendant entered an Alford guilty plea to the eight felony counts of identity theft.3 The State recommended that the defendant receive a ten-year prison term and pay all of the restitution costs listed in the indictment.4 The circuit court deferred sentencing after the plea agreement and guilty plea were entered so that a presentence investigation report could be prepared. The court also ordered that the defendant undergo a diagnostic evaluation at the Lakin Correctional Center. After the presentence investigation report and diagnostic evaluation were completed, the circuit court held a sentencing hearing on January 14, 2013.
At the sentencing hearing, the circuit court heard the arguments of counsel, as well as statements from the defendant and the victim. At the time of the sentencing hearing, the victim had reached the age of majority. The circuit court did not follow the State's recommendation that the defendant be sentenced to serve a ten-year prison term. Instead, the circuit court sentenced the defendant to serve five years in prison.5 Further, the circuit court ordered that the defendant pay restitution to the following financial institutions: $1,370.32 to Applied Bank; $1,114.98 to Barclay Card UC; $1,232.00 to Zenith Acquisition Corporation; $3,753.00 to Chase Card Services; $630.44 to HSBC Card Services; and $2,842.00 to SST/Columbus Bank and Trust. In addition, the circuit court ordered the defendant to pay $10,000.00 in restitution to her daughter “because of the attempts and time and the effort she has to make to try to rectify the wrongful credit aspect of [the identity theft].”
After entry of this sentencing order, the defendant filed the present appeal.
This Court's established standard of review for sentencing orders is set forth in Syllabus Point 1 of State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997). It states:
The Supreme Court of Appeals reviews sentencing orders, including orders of restitution made in connection with a defendant's sentencing, under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands.
The issues upon which the defendant bases her appeal are statutory matters which are reviewed as questions of law. “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).
The defendant raises two issues in this appeal. We address each of them in turn.
The first issue raised by the defendant is that the circuit court erred by sentencing her to a five-year prison term instead of placing her on probation or home confinement. In support of this argument, the defendant raises a number of factors—including her lack of a previous criminal record, her education and employment history, and her expression of remorse for committing the identity theft—that she argues weigh in favor of placing her on probation 6 or home confinement. Additionally, the defendant asserts that “there is currently extreme overcrowding in the West Virginia Division of Corrections and that a reduced sentence would allow justice to be served while more quickly relieving the strained prison system of another inmate.”
The defendant concedes, however, that the The defendant also concedes that the circuit court did not base its sentence on an impermissible factor. Despite these concessions, the defendant asks this Court to reconsider our previous holding that Syllabus Point 3, State v. Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010). We decline the defendant's invitation to reconsider our prior holding.
This Court has consistently recognized that “the rule is that sentences imposed by the trial court, if within the statutory limits and if not based on some impermissible factor are not subject to appellate review.” State v. Rogers, 167 W.Va. 358, 360, 280 S.E.2d 82, 84 (1981); see, State v. Grimes, 226 W.Va. 411, 422, 701 S.E.2d 449, 460 (2009); and Syllabus Point 9, State v. Hays, 185 W.Va. 664, 408 S.E.2d 614 (1991). Further, “[i]t is not the proper prerogative of this Court to substitute its judgment for that of the trial court on sentencing matters, so long as the appellant's sentence was within the statutory limits, was not based upon any impermissible factors, and did not violate constitutional principles.” State v. Georgius, 225 W.Va. at 722, 696 S.E.2d at 24.
The maximum statutory sentence for felony identity theft, in violation of W.Va.Code § 61–3–54, is five years in the penitentiary. W.Va.Code § 61–3–54 states
Any person who knowingly takes the name, birth date, social security number or other identifying information of another person, without the consent of that other person, with the intent to fraudulently represent that he or she is the other person for the purpose of making financial or credit transactions in the other person's name, is guilty of a felony, and upon conviction, shall be punished by confinement in the penitentiary not more than five years, or fined not more than one thousand dollars, or both: Provided, That the provisions of this section do not apply to any person who obtains another person's drivers license or other form of identification for the sole purpose of misrepresenting his or her age.
The defendant pled guilty to eight counts of felony identity theft and faced a maximum forty-year prison sentence. In the plea deal,...
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