The opinion
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia,
Plaintiff Below, Respondent FILED
October 13, 2020
vs.) No. 19-0988 (Berkeley County CC-02-2019-F-85) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Erik K.,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Erik K., by counsel B. Craig Manford, appeals the Circuit Court of Berkeley
County’s September 27, 2019, conviction and sentencing order adjudging him convicted of two
counts of sexual abuse by a parent, guardian, custodian, or person in a position of trust to a child
and sentencing him to consecutive terms of incarceration of not less than ten nor more than twenty
years for each conviction. 1 Respondent State of West Virginia, by counsel Mary Beth Niday, filed
a response. Petitioner filed a reply.
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 June of 2017, the mother of a then-ten-year-old boy, D.C., reported to law enforcement
that D.C. had possibly been the victim of sexual abuse by petitioner. Petitioner, who was a friend
of D.C.’s uncle, was enrolled in college with the uncle. During breaks from school, petitioner
would accompany the uncle to the uncle’s home rather than return to his own home in Tennessee. 2
During these visits, a relationship developed between petitioner and D.C.’s family, such that the
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.
254, 773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993); State v.
Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
2
D.C.’s mother and uncle lived together with D.C.’s grandparents.
1
family members began referring to petitioner as “Uncle Erik.” Petitioner was alleged to have
sexually abused D.C. during those breaks from school on various occasions between November of
2012 and January of 2017. Specifically, petitioner was alleged to have compelled D.C to both kiss
his genitalia and to perform oral sex on him.
During the ensuing investigation, D.C. was interviewed. D.C. disclosed that, beginning
when he was approximately five years old, petitioner would force D.C. to place his mouth on
petitioner’s genitals. Although D.C. could not recount a specific number of times the sexual abuse
occurred, he stated that it occurred at least five times. On one occasion, D.C.’s sisters witnessed
the sexual abuse. Accordingly, D.C.’s sisters were also interviewed, and one recalled observing
petitioner lying on his back with his pants down and D.C. looking at petitioner’s genitals. D.C.’s
sister also witnessed D.C. touch petitioner’s genitals.
Petitioner was indicted on six counts of first-degree sexual assault in October of 2017. 3
Following discovery, the filing of various motions, and the granting of several continuances, the
parties reached a plea agreement on February 13, 2019. Under the terms of this agreement,
petitioner agreed to plead guilty to two counts of sexual abuse by a parent, guardian, custodian, or
person in a position of trust to a child, which were to be charged by information, in exchange for
the State’s dismissal of the first-degree sexual assault charges on which he was indicted. 4 The
parties further agreed that sentencing would be left in the court’s discretion, but each party was
free to argue for any lawful sentence.
Prior to sentencing, petitioner underwent a psychosexual evaluation by Elisha Agee,
Psy.D., to, among other things, determine petitioner’s sexual offense recidivism risk and outline
an appropriate treatment plan. Dr. Agee administered the Static-99R test to assess petitioner’s
sexual recidivism risk. Petitioner’s score on that test placed him in the “above average” category
for risk of being charged or convicted of another sexual offense, and this score was based on his
relatively young age, never having lived with an intimate partner, and having had an unrelated
male victim. Dr. Agee stated that 10.1% of men with petitioner’s score on this test went on to
sexually reoffend during a five-year follow-up period; therefore, about 90% of men with
petitioner’s score were not known to reoffend. Dr. Agee qualified her assessment by stating that,
[o]f course, a score from the Static-99R (or any measure) does not indicate whether
the individual who received that score will or will not sexually reoffend . . . .
Therefore, the score is a reasonable starting point in assessment and can be used to
place the person in a risk category, but it is not a prediction specific to that
3
This action was assigned criminal action number 17-F-356. In the indictment, petitioner’s
abuse of D.C. was alleged to have occurred while D.C. was between the ages of five and ten and
while petitioner was between the ages of eighteen and twenty-three.
4
Petitioner waived his right to prosecution by way of indictment. The State filed the
criminal information charging two counts of sexual abuse by a parent, guardian, custodian, or
person in a position of trust to a child on March 11, 2019. This action was assigned circuit court
case number 19-F-85, and 17-F-356 was merged with 19-F-85.
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individual, who must be considered in the context of his own circumstances,
characteristics, and resources.
Dr. Agee further noted that there are two broad sets of risk factors associated with sexual-
offense recidivism: one, an impulsive, antisocial lifestyle; and two, sexual deviance. Dr. Agee
concluded that petitioner “does not appear to manifest th[e] broad risk factor [of an impulsive,
antisocial lifestyle] to any meaningful extent.” Also, Dr. Agee explained that psychopathy is a
personality style included within the broader category of antisocial lifestyle, and she saw “no
indication that psychopathy is a risk factor that elevates his risk for sexual re-offense to any
meaningful extent.” Concerning sexual deviance, Dr. Agee found that available data warrants a
diagnosis of pedophilic disorder, which is indicative of sexual deviance. But, she continued,
[a]lthough there is evidence of a broader pattern of sexual interest in minors (based
on his offenses against the present victim), there is no indication to suggest that
children or minors are his primary sexual preference, or that [petitioner] has ever
had any other form of sexual contact with minors aside from what is outlined in this
report.[5]
In terms of treatment, Dr. Agee recommended sex-offender specific treatment, mental
health treatment with a clinician who has expertise with sexual offenders, and restricted contact
with minors.
Dr. Agee also detailed that, approximately ten minutes after her eight-hour evaluation of
petitioner ended, petitioner returned to her office “crying while he shared that he was not entirely
forthcoming with me.” During the evaluation, petitioner claimed to have sexually abused D.C.
four times. But upon returning to the doctor’s office, he said that he abused D.C. “around [ten]
[times].” Petitioner also disclosed that “he engaged in intercrural sex (i.e., non-penetrative sex
during which the penis is placed between the receiving partner’s thighs and thrusts to create friction
and stimulation) with D.C. by laying him down on his stomach and initiating intercrural sex.”
Petitioner repeatedly apologized for not providing that information earlier and stated that “[i]t’s
what I’m most ashamed of.” Ultimately, Dr. Agee found that petitioner
came across as forthright in most respects . . . . Indeed, he appeared quite candid,
providing information that might be construed negatively by others. Perhaps most
telling of his transparency and desire to be forthcoming is that he returned to my
5
Dr. Agee also stated that petitioner “did not evidence a preference for sexual contact with
minors, rather, his offenses appear to be the product of unhealthy coping, little experience in typical
intimate relationships, indiscriminate sexual interests, sexual preoccupation, poor judgment and
decision-making, and stress and isolation following the termination of a relationship.” While
“some degree of sexual deviance is necessary to disregard the legal and moral barriers related to
sexual contact with minors,” Dr. Agee “did not find evidence to suggest that [petitioner]
consistently sought or preferred sexual contact with minors over adults.” But she reiterated that
petitioner “is at an above average risk of re-offense relative to other sexual offenders, particularly
if he is constrained by traditional sex offender supervision strategies.”
3
office about [ten] minutes after I completed the evaluation to provide more
information regarding the alleged offenses.
The court held a plea and sentencing hearing on August 27, 2019, at which the court
accepted petitioner’s guilty pleas to two counts of sexual abuse by a parent, guardian, custodian,
or person in a position of trust to a child and adjudged him convicted of those crimes. The court
proceeded to sentencing. Petitioner argued for probation or home confinement, while the State, the
victim’s mother, and the victim’s guardian ad litem argued for consecutive terms of incarceration.
In finding that incarceration was warranted, the court considered five factors: 1. The “generous
concessions already provided by the State” in dismissing the charges on which petitioner was
indicted under the parties’ plea agreement; 2. Petitioner’s decision to return to the victim’s family’s
home during breaks from school instead of traveling to visit his own family; 3. That petitioner’s
actions were the result of personal choice rather than, as he claimed, an addiction to sex; 4. The
determination that petitioner was at an “above average” risk for reoffending; and 5. Petitioner’s
initial reluctance to fully disclose the number of times he abused D.C. 6 Accordingly, the court
sentenced petitioner to consecutive terms of not less than ten nor more than twenty years of
incarceration. The court also imposed fifty years of supervised release upon petitioner’s release
from incarceration and ordered restitution. The court entered its conviction and sentencing order
memorializing its rulings on September 27, 2019, and this appeal followed.
Petitioner raises two assignments of error on appeal, both of which concern his sentence.
In his first assignment of error, he asserts that the circuit court erred in imposing consecutive
sentences rather than concurrent sentences or probation. Incorporated within this assignment of
error is an assertion that the court based its sentence on impermissible factors. In petitioner’s
second assignment of error, he argues that his sentence was unconstitutionally disproportionate.
We review sentencing orders “under a deferential abuse of discretion standard, unless the order
violates statutory or constitutional commands.” Syl. Pt. 1, in part, State v. Adams, 211 W. Va. 231,
565 S.E.2d 353 (2002) (citation omitted).
In support of petitioner’s first assignment of error, petitioner argues that the court’s
decision to impose consecutive sentences and deny his request for probation was based on “flawed
reasoning.” First, the court considered petitioner’s favorable plea bargain. Because the court was
not privy to the parties’ plea negotiations or the strengths and weaknesses of the State’s case,
petitioner contends that characterizing the plea agreement as favorable amounts to an assumption
of petitioner’s guilt. Second, the court dismissed petitioner’s assertion that he suffered from an
addiction to sex and found that petitioner returned to the victim’s home knowing he would
reoffend. Petitioner claims that he returned to the victim’s home because he was best friends with
the victim’s uncle, not because he had the “preconceived intent to commit any additional crime.”
Petitioner also claims that the court’s consideration of his return to D.C.’s home ignored the
clinical evidence of his sex addiction, which he claims Dr. Agee’s evaluation “clearly bears out.”
Third, in further reference to Dr. Agee’s evaluation, petitioner states that the court focused
exclusively on the Static-99R test, despite that test being only a “starting point” and not “prediction
6
In addition to initially withholding the full extent of his abuse of D.C. from Dr. Agee,
petitioner, in his statement to the probation officer who completed his presentence investigation
report, claimed only two instances of abuse.
4
specific,” and it ignored her treatment plan for petitioner. Fourth, petitioner states that the court
“found” or “insinuated” that he was untruthful, which is inaccurate. Petitioner acknowledges that
he was not “initially completely candid and forthright,” but he returned to Dr. Agee’s office to
make a full disclosure, and he explains that he did not fully disclose to the probation officer who
completed his presentence investigation report because he thought he only needed to describe the
two instances giving rise to the charges to which he pled.
“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.” 7 Syl. Pt. 2, State v. Goodnight, 169
W. Va. 366, 287 S.E.2d 504 (1982). “[T]he impermissible factors a court should not consider in
sentencing include such matters as ‘race, sex, national origin, creed, religion, and socioeconomic
status . . . .” State v. Moles, No. 18-0903, 2019 WL 5092415, *2 (W. Va. Oct. 11,
2019)(memorandum decision) (citing U.S. v. Onwuemene, 933 F.2d 650, 651 (8th Cir. 1991)). We
have also stated that a “defendant has a due process right to be sentenced on the basis of accurate
information.” State v. Bleck, -- W. Va. --, --, 843 S.E.2d 775, 779 (2020) (citation omitted).
Concerning petitioner’s request for probation, “[t]he decision of a trial court to deny probation will
be overturned only when, on the facts of the case, that decision constituted a palpable abuse of
discretion.” Syl. Pt. 3, State v. Shaw, 208 W. Va. 426, 541 S.E.2d 21 (2000) (citation omitted).
And the decision to run sentences concurrently, rather than consecutively, also rests in the circuit
court’s discretion. Syl. Pt. 3, State v. Allen, 208 W. Va. 144, 539 S.E.2d 87 (1999).
Petitioner has not demonstrated that the court considered an impermissible factor or
sentenced him on the basis of inaccurate information. Petitioner does not argue that he was
sentenced on the basis of race, sex, national origin, creed, religion, or socioeconomic status, and
he cites no law suggesting that a court cannot consider the benefits of a plea bargain. Petitioner’s
leap that the court went beyond considering the favorable terms—which petitioner’s counsel also
acknowledged at sentencing 8—and presumed petitioner’s guilt is not supported by the record. The
court stated only facts in recounting that “[t]he [S]tate did agree to drop several counts in the
original indictment and proceed on only two counts by way of information and so the [c]ourt does
find a great and significant grace has been granted to the defendant in that negotiation on behalf
of the [S]tate.” The court made no insinuations as to petitioner’s guilt.
Likewise, petitioner’s claim of a sex addiction is not borne out in Dr. Agee’s report. Dr.
Agee’s “diagnostic impressions” did not include that alleged addiction; rather, any mention of sex
7
Petitioner acknowledges that his sentences are within statutory limits.
8
Petitioner’s counsel stated,
I thank—first of all believe it or not I do thank the [S]tate for its concessions. Thank
all involved in the process, the guardian ad litem. I thank the family. I know that
there was a lot of consultation. [The prosecutor] and I spent a lot of time on the
phone in talking to each other late in the evening trying to work something out and
it was a good plea as far as what originally had been indicted and what evidence
might come out at trial. So I do thank everyone involved for the concessions that
were made and I truly and genuinely mean that, your Honor.
5
addiction came from petitioner. Thus, there was no “clinical evidence” of this diagnosis for the
court to have ignored. Further, petitioner, in fact, returned to the victim’s home despite an
awareness of his prior sexual abuse of D.C. It is also the case that Dr. Agee’s report contains the
finding that petitioner’s Static-99R score “places him in the ‘Above Average’ category (Level IVa)
for risk of being charged or convicted of another sexual offense,” and, despite returning to Dr.
Agee’s office to fully disclose his conduct, he was not initially forthcoming. Petitioner’s claims
amount to nothing more than a desire for the court to have weighed or viewed the evidence
differently, but his desire for a different outcome, be it probation or concurrent sentences, does not
establish an abuse of the court’s discretion. “It 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 statutory limits, was not based upon any impermissible factors, and did not
violate constitutional principles.” State v. Georgius, 225 W. Va. 716, 722, 696 S.E.2d 18, 24
(2010). As petitioner has failed to demonstrate that the court considered any impermissible factors
or sentenced him on inaccurate information, we find no abuse of the court’s discretion in denying
his request for probation or consecutive sentences.
In petitioner’s second and final assignment of error, he argues that his sentence is
disproportionate to his offense. Petitioner assumes that his sentence of not less than twenty years
nor more than forty years amounts to a “twenty[-]year flat sentence,” if good behavior is taken into
account. Given petitioner’s lack of criminal history, status as a college graduate, acceptance of
responsibility for his crimes, demonstrable remorse, and initiation of sex offender treatment, he
asserts that a twenty-year sentence shocks the conscience. Petitioner argues that, under the
objective test employed by courts in evaluating proportionality challenges, his sentence is
disproportionate because he would “probably serve less time” had he been convicted of first-
degree murder with a recommendation of mercy.
In State v. Cooper, 172 W. Va. 266, 304 S.E.2d 851 (1983), we outlined the two tests used
to determine whether a sentence is so disproportionate to a crime that it violates the proportionately
principle contained within Article III, Section 5 of the West Virginia Constitution. 9
The first 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, 166 W. Va. 523, 276 S.E.2d 205 (1981).
Cooper, 172 W. Va. at 272, 304 S.E.2d at 857. Under this first test, “we consider all of the
circumstances surrounding the offense.” Adams, 211 W. Va. at 233, 565 S.E.2d at 355 (citations
omitted). The second, objective test, found in Wanstreet, provides that
9
“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.’” Syl. Pt. 4, State v. Cooper, 172 W. Va. 266, 304 S.E.2d 851
(1983) (citation omitted).
6
[i]n 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.
166 W. Va. at 523-24, 276 S.E.2d at 207, syl. pt. 5.
We also held in Wanstreet, however, that “[w]hile our constitutional proportionality
standards theoretically can apply to any criminal sentence, they are basically applicable to those
sentences where there is either no fixed maximum set by statute or where there is a life recidivist
statute.” Id. at 523, 276, S.E.2d at 207, syl. pt. 4. Petitioner’s sentences include fixed maximums,
and a recidivist life sentence was not imposed; accordingly, petitioner’s sentence is not appropriate
for a proportionality analysis. Even if we exercise our discretion and review petitioner’s
proportionality arguments, as we recently did in State v. Patrick C., -- W. Va. --, --, 843 S.E.2d
510, 514 (2020), petitioner has failed to establish that his sentence is disproportionate under either
test. Subjectively, his sentence does not shock the conscience of this Court or society. Petitioner
highlights his own purported attributes, but he neglects to consider the repeated harms he inflicted
upon his young victim. Further, his attempt to satisfy the second, objective test falls short as he
offers only, at best, “a comparison [of his sentence] with other offenses within the same
jurisdiction,” neglecting to address the other factors set forth in that test.
An appellant must carry the burden of showing error in the judgment of which he
complains. This Court will not reverse the judgment of a trial court unless error
affirmatively appears from the record. Error will not be presumed, all presumptions
being in favor of the correctness of the judgment.
State v. Lambert, 236 W. Va. 80, 100, 777 S.E.2d 649, 669 (2015) (citation omitted). Petitioner’s
reference to the statutory penalty for first-degree murder, without more, fails to demonstrate that
his sentence is disproportionate.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: October 13, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
7