STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia, Plaintiff Below, FILED
Respondent August 31, 2015
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
vs) No. 14-1096 (Hampshire County 14-F-16) OF WEST VIRGINIA
David E. Dailey, Defendant Below,
Petitioner
MEMORANDUM DECISION
Petitioner David E. Dailey, by counsel Lary Garrett, appeals the Circuit Court of
Hampshire County’s October 3, 2014, order sentencing him to three consecutive terms of
incarceration of five to twenty-five years for each count of first-degree sexual abuse. The State of
West Virginia, by counsel David Stackpole, filed a response. On appeal, petitioner argues that
his sentence for first-degree sexual abuse is disproportionate to his criminal acts.
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.
In January of 2014, a Hampshire County grand jury indicted petitioner on two counts of
first-degree sexual assault and one count of first-degree sexual abuse. These charges involved
three minor female victims under the age of eight years old. In August of 2014, pursuant to a
plea agreement, petitioner pled no contest to three counts of first-degree sexual abuse.
Thereafter, the circuit court sentenced petitioner to three consecutive terms of incarceration of
five to twenty-five years for each count of first-degree sexual abuse, pursuant to West Virginia
Code § 61-8B-7. The circuit court also fined petitioner $1,000 for each count. It is from the
sentencing order that petitioner now appeals.
On appeal, petitioner argues only that his cumulative sentence for first-degree sexual
abuse is disproportionate to his criminal acts in violation of Article III, Section 5 of the West
Virginia Constitution because it amounts to what petitioner considers a life sentence based upon
his age.1 Further, petitioner argues that he “spared” the victims additional trauma because they
did not have to testify at his trial as a result of his plea of no contest.
1
Petitioner was sixty years old at the time of sentencing.
1
In addressing the limitation on appellate review of sentences, we have stated that
“[s]entences imposed under statutes providing no upper limits may be contested based upon
allegations of violation of the proportionality principles contained in Article III, Section 5 of the
West Virginia Constitution.” State v. Tyler, 211 W.Va. 246, 250, 565 S.E.2d 368, 372 (2002)
(citing State v. Rogers, 167 W.Va. 358, 360, 280 S.E.2d 82, 84 (1981)). We note that the statute
under which petitioner was sentenced for first-degree sexual abuse, West Virginia Code § 61-8B-
7, provides for an upper limit of incarceration of twenty-five years. As such, petitioner’s
sentences for these crimes are not reviewable on appeal.
Furthermore, we have 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). Petitioner was sentenced to three
consecutive terms of incarceration of five to twenty-five years for each count of first-degree
sexual abuse in violation of West Virginia Code § 61-8B-7. A review of the record shows that
petitioner was sentenced to the statutory maximum for these crimes, pursuant to West Virginia
Code§ 61-8B-7. It is within a trial court’s discretion to run such sentences concurrently or
consecutively. W.Va. Code § 61-11-21. Petitioner made no claims and offered no evidence to
establish that his sentence was based upon any impermissible factors.
For the foregoing reasons, the circuit court’s October 3, 2014, sentencing order is hereby
affirmed.
Affirmed.
ISSUED: August 31, 2015
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II
2