State of West Virginia v. Mark K. McBride, 15-1118

In Feb 2011, Mark K. McBride was indicted for first-degree robbery after allegedly forcing a victim from her vehicle and driving off.
A jury convicted McBride of second-degree robbery; the statutorily allowable maximum for that offense is 18 years.
The State filed a recidivist information; a jury found McBride to be a recidivist based on a prior conviction for possession of a deadly weapon on school premises.
The circuit court sentenced McBride to 5–18 years for second-degree robbery and, under the recidivist statute, enhanced the total to 10–18 years.
McBride appealed, arguing the cumulative 10–18 year term violated the federal and state prohibitions on cruel and unusual punishment as disproportionate to the offense; he also sought alternative sentencing.
The Supreme Court of Appeals of West Virginia affirmed, finding no proportionality or alternative-sentencing error given statutory limits and McBride’s criminal history.

Issue	Plaintiff's Argument (McBride)	Defendant's Argument (State)	Held
Whether the 10–18 yr cumulative sentence is cruel and unusual / disproportionate	Sentence is grossly disproportionate to the underlying second-degree robbery and violates Eighth Amendment and WV Const. art. III, §5	Sentence is within statutory limits and properly enhanced under recidivist statute; not subject to proportionality review on direct appeal	Affirmed — sentence within statutory maximum; not reviewable for proportionality on direct appeal and not constitutionally disproportionate
Whether denial of alternative (probation) sentencing was improper	McBride sought alternative sentencing instead of incarceration	State argued alternative sentencing discretionary and inappropriate given McBride’s extensive criminal history and parole violation	Affirmed — probation is discretionary; criminal history and pending indictments justified denial

State v. Cooper, 172 W.Va. 266, 304 S.E.2d 851 (1983) (West Virginia proportionality principle for penalties)
State v. Vance, 164 W.Va. 216, 262 S.E.2d 423 (1980) (Article III, §5 requires penalties proportioned to character and degree of offense)
State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997) (abuse of discretion review for sentencing unless statutory or constitutional commands violated)
State v. James, 227 W.Va. 407, 710 S.E.2d 98 (2011) (reiterating deferential review of sentences)
State v. Tyler, 211 W.Va. 246, 565 S.E.2d 368 (2002) (sentences under statutes with no upper limits may be challenged on proportionality grounds)
State v. Rogers, 167 W.Va. 358, 280 S.E.2d 82 (1981) (proportionality review principle)
State v. Payne, 225 W.Va. 602, 694 S.E.2d 935 (2010) (sentences within statutory limits not subject to appellate review absent impermissible factors)
State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982) (same: sentencing within statutory limits generally not reviewable)
State v. Rose, 156 W.Va. 342, 192 S.E.2d 884 (1972) (probation is a matter of grace, not a right)
State v. Hosby, 220 W.Va. 560, 648 S.E.2d 66 (2007) (reaffirming probation discretion standard)