State v. Williams

• Decision Date: 15 June 1999
• Docket Number: No. 25815.,25815.
• Citation: 205 W.Va. 552,519 S.E.2d 835
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Tara WILLIAMS, Defendant Below, Appellant.

519 S.E.2d 835

205 W.Va. 552

STATE of West Virginia, Plaintiff Below, Appellee, v. Tara WILLIAMS, Defendant Below, Appellant.

No. 25815.

Supreme Court of Appeals of West Virginia.

Submitted May 5, 1999.

Decided June 15, 1999.

Dissenting Opinion of Chief Justice Starcher September 8, 1999.

Darrell V. McGraw, Jr., Esq., Attorney General, Leah Perry Macia, Esq., Assistant Attorney General, Charleston, West Virginia, Attorneys for the Appellee.

Thomas K. Fast, Esq., Fayetteville, West Virginia, for the Appellant.

PER CURIAM:

This case is before this Court upon appeal of a final order of the Circuit Court of Fayette County entered on February 19, 1998. In that order, the circuit court sentenced the appellant, Tara Williams, for a voluntary plea conviction of attempted aggravated robbery, to a term of 50 years in the West Virginia State Penitentiary. In this appeal, the appellant contends that the 50-year sentence is unconstitutionally excessive and disproportionate to the character and degree of the offense she committed.

This Court has before it the petition for appeal, the entire record, and the briefs and argument of counsel. For the reasons set forth below, we affirm the appellant's sentence.

I.

The events which led to the appellant's conviction for attempted aggravated robbery began on June 6, 1997. On that day, the appellant went to Joseph Hundley's house with three of her friends, Jenny Dawn Suttle, Margaret Talouzi, and H.J.¹ The purpose of the visit was to retrieve Suttle's identification card which she left with Hundley when she borrowed money from him on an earlier occasion. During the visit, Hundley offered to pay the girls one hundred dollars each if they would come back the next evening and "strip dance" for him. The girls agreed and left Hundley's house.

The next day, the appellant, Talouzi, and H.J. spent several hours driving around Oak Hill, West Virginia, looking for Suttle. The girls planned to go to Hundley's house that evening and trick him out of his money by telling him that they would dance for him; however, they intended to leave to go to a store before actually dancing and never return. After looking for Suttle for several hours, the three girls stopped at a Pit Row store in Oak Hill to eat and consider whether to go to Hundley's house without Suttle. While at the store, the appellant saw her friend, Mark Yoney. Yoney was with Wally Swafford and another man called "A.J." The girls told these men of their plan to trick Hundley out of his money. Yoney expressed an interest in the plan and invited the girls to his apartment.

At the apartment, Yoney and Swafford decided to accompany the girls to Hundley's house. The group came up with a plan to take Hundley's money by force if the girls were unable to trick him. Before leaving, the girls heard Yoney and Swafford mention a gun. The girls told them that a gun was not necessary and they agreed not to take it.

Thereafter, the appellant, Talouzi, H.J., Yoney, and Swafford proceeded to Hundley's house in A.J.'s car. Upon arrival, the car was parked near a fence between Hundley's and a neighbor's property. The men stayed in the car and the girls went to the door.

Inside the house, the girls asked Hundley if he had the money. He said "yes" and showed them a wad of bills. He told them that he still wanted them to dance and that he had bought some beer for them. The appellant then informed Hundley that she was going to go out to the car to get her cigarettes. Shortly after the appellant returned to the house, Yoney and Swafford rushed in with a gun and demanded the money. A struggle commenced between the three men and Swafford fired the gun. In the meantime, Yoney instructed the appellant to disconnect the phone and grab the case of beer. The three girls then ran toward the car. The appellant looked back and saw Hundley running out of the house with Swafford behind him. Swafford fired a second shot at Hundley and Yoney attacked him. The men then quickly got in the car leaving Hundley laying in the yard. The five sped away and later discarded Yoney's bloodstained sweatshirt over a hill.

The next day, the appellant and Talouzi went to Yoney's apartment where they learned that Hundley had died of the gunshot wounds. The appellant and Talouzi then proceeded to H.J.'s apartment where the police were waiting. The appellant was arrested for murder, and taken to the police station. Initially, the appellant lied about the events that occurred the night before. However, eventually, she cooperated with the police and disclosed the location of the bloodstained sweatshirt.

Thereafter, the State offered a plea agreement to the appellant, wherein the State agreed to dismiss the murder charge and allow the appellant to plead guilty to attempted aggravated robbery in exchange for her complete cooperation. The State also agreed to advise the court of the appellant's cooperation at her sentencing hearing and ask the court to take that fact into consideration when rendering a sentence. It was understood, though, that sentencing would be left to the discretion of the court.

On September 16, 1997, the appellant pled guilty to the attempted aggravated robbery of Joseph Hundley. In cooperation with the State, the appellant testified at the trials of Yoney and Swafford.² By order entered on February 19, 1998, the appellant was sentenced to 50 years in the West Virginia State Penitentiary.

II.

The appellant claims that the circuit court violated Article III, Section 5 of the West Virginia Constitution by sentencing her to a term of 50 years for attempted aggravated robbery. In other words, the appellant asserts that her 50-year sentence for attempted aggravated robbery is excessive and disproportionate to the character and degree of the offense she committed.

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.'

Syllabus Point 8, State v. Vance, 164 W.Va. 216, 262 S.E.2d 423 (1980).

This Court has set forth two tests for determining whether a sentence is so disproportionate that it violates our constitution.³ In State v. Cooper, 172 W.Va. 266, 272, 304 S.E.2d 851, 857 (1983), we stated that:

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, , 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.

To determine whether a sentence shocks the conscience, we consider all of the circumstances surrounding the offense. State v.. Phillips, 199 W.Va. 507, 513, 485 S.E.2d 676, 682 (1997). In this case, the crime which the appellant committed was not only of a violent nature, but resulted in the death of the victim. Although the appellant did not personally shoot Hundley, she was responsible for setting the chain of events in motion that led to his death. It was the appellant that invited Yoney and Swafford to accompany her and her friends to Hundley's house on the night of June 7, 1997. In imposing the sentence upon the appellant, the sentencing court commented:

The crime in which you were involved and the crime for which you stand convicted was of a violent nature. It was of dangerous proportions. It was clearly deliberate. No matter what all that can be said back and forth, it was a deliberate plan or scheme that you and Toulouzi [sic] and the others engaged in, to take money from the victim.

Based upon the violent nature of the crime for which the appellant stands convicted and the fact that the victim died as a result of the appellant's actions, we find that the sentence imposed upon her does not shock the conscience of the court and society. Consequently, we proceed to the objective test.

The first consideration of the objective test is the nature of the offense for which the appellant was convicted and the legislative purpose behind the statutory punishment. As we just noted, the crime for which the appellant was convicted was certainly of a violent nature. In addition, we have previously observed that "[a]ggravated robbery in West Virginia has been recognized as a crime that involves a high potentiality for violence and injury to the victim involved." State v, Ross, 184 W.Va. 579, 582, 402 S.E.2d 248, 251 (1990).⁴ As a result, the Legislature has provided circuit courts with broad discretion in sentencing individuals convicted of aggravated robbery or attempted aggravated robbery. In fact, "`[t]he Legislature chose not to deprive trial courts of discretion to determine the appropriate specific number of years of punishment for armed robbery, beyond ten.'" State v. Woods, 194 W.Va. 250, 254, 460 S.E.2d 65, 69 (1995), quoting State ex rel. Faircloth v. Catlett, 165 W.Va. 179, 181, 267 S.E.2d 736, 737 (1980).

Next, we consider comparable sentences in other jurisdictions. In Jenkins v. State, 384 So.2d 1135 (Ala.Crim.App.1979),cert. denied, Ex parte Jenkins, 384 So.2d 1141 (Ala.1980), the Court of Criminal Appeals of Alabama upheld a defendant's sentence of life imprisonment for robbery. The defendant and two accomplices robbed a convenience...