STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia, FILED
Plaintiff Below, Respondent June 13, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
vs) No. 13-1076 (Mason County 11-F-26) OF WEST VIRGINIA
Brook N. Carmichael,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Brook N. Carmichael, by counsel Duane C. Rosenlieb, Jr., appeals the Circuit
Court of Mason County’s order entered on September 20, 2013, revoking petitioner’s probation
and ordering her to be incarcerated for one to fifteen years. The State of West Virginia, by
counsel Derek Knopp, filed a response.
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 January 31, 2011, petitioner and her co-defendant husband, Shawn Carmichael,
burglarized the home of Randi Carmichael, the sister-in-law of Shawn Carmichael. Petitioner
served as a lookout while her husband entered the residence with a screwdriver, taking two gold
and diamond rings and a knife. Petitioner was later found in possession of one of the rings and
tried to sell the other. Petitioner gave police a voluntary statement admitting to being in
possession of the ring.
Petitioner was indicted on May 3, 2011, on one count of burglary, one count of grand
larceny, and one count of conspiracy to commit burglary. Petitioner was offered a plea deal,
which was executed on July 11, 2011, at which time petitioner agreed to plead guilty to burglary
in exchange for dismissal of the grand larceny and conspiracy counts. On September 19, 2011, a
sentencing hearing was held. Petitioner’s sentence was suspended in lieu of three years of
probation. On November 10, 2011, the Mason County Probation Department filed a petition for
revocation of probation, alleging that petitioner violated the rules of the Day Report program by
testing positive for oxycodone. Petitioner further admitted to smoking marijuana and it was
found that she was not attending the full sessions of her General Equivalency Diploma (“GED”)
classes as required. On December 12, 2011, petitioner failed to appear for her probation
revocation hearing and a capias was issued. The hearing was reset for February 3, 2012.
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Petitioner admitted to violating her probation by testing positive for controlled substances. Her
probation was revoked but disposition was continued. Eventually, the court reinstated her
probation, but extended it by six months. She was also given sixty days to enter an inpatient
rehabilitation program in Dayton, Ohio, and again ordered to obtain her GED.
On June 5, 2012, another petition for revocation of probation was filed, alleging that
petitioner failed to attend the residential drug treatment program after she was accepted and that
she failed to report a change in residence. Petitioner did not appear at the June 25, 2012, hearing
and another capias warrant was issued. On September 16, 2013, petitioner was apprehended and
appeared for her revocation hearing. She admitted to two probation violations, and, although she
was given the opportunity to have a continuance to have more time to consult with counsel, she
declined. The court then revoked her probation and reinstated her original sentence of one to
fifteen years of incarceration. She received credit for 283 days of time served.
On October 9, 2013, petitioner filed a pro se motion for reduction of sentence, noting that
she was in a GED program and was on a waiting list for a drug rehabilitation program. Petitioner
requested probation or home confinement. On October 22, 2013, the court denied the motion for
reduction of sentence. Petitioner filed the instant appeal on October 10, 2013.
Although petitioner later filed a motion for reduction of sentence, she actually appeals
from her sentencing order. “‘The Supreme Court of Appeals 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. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).” Syl. Pt.
1, State v. James, 227 W.Va. 407, 710 S.E.2d 98 (2011).
On appeal, petitioner first argues that the circuit court’s ruling/disposition was too harsh
given the history of the case and the circumstances surrounding her case. Petitioner also argues
that the court’s disposition is not in her best interests, does not promote the public’s welfare, nor
does it promote the fair administration of justice. Petitioner sought probation, arguing that she
was working toward her GED and was on a waiting list for a drug treatment facility.
We have previously held that “‘[s]entences 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).” Syl. Pt. 3, State v.
Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010). This Court finds that petitioner’s sentence in
this matter was proper. Petitioner was granted probation initially, and violated the rules of her
probation at least twice. Petitioner also absconded and a capias warrant had to be issued for her
arrest. Thus, probation was no longer appropriate, as we have recognized that “probation is a
privilege of conditional liberty bestowed upon a criminal defendant through the grace of the
circuit court.” State v. Duke, 200 W.Va. 356, 364, 489 S.E.2d 738, 746 (1997) (citations
omitted). Moreover, the sentence was within statutory limits and not based on an impermissible
factor.
Finally, the Court declines to address petitioner’s argument that an alternative method for
dealing with non-meritorious claims be adopted.
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For the foregoing reasons, we affirm.
Affirmed.
ISSUED: June 13, 2014
CONCURRED IN BY:
Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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