State of West Virginia v. Brian Richard Wilson, 16-0352

In Oct. 2014 petitioner Brian Wilson shot his neighbor in the upper thigh with a pellet gun during an argument; the wound required hospital treatment and could have been fatal if it struck the femoral artery.
Wilson was indicted for malicious assault, failed a drug test while on bond, and ultimately pleaded guilty to one count of unlawful assault.
The circuit court delayed sentencing to allow Wilson to demonstrate sobriety; he produced three negative drug tests over 60 days before the March 2016 hearing.
At sentencing the court declined Wilson’s request for alternative sentencing (probation or home confinement) and sentenced him to 1–5 years’ incarceration under West Virginia Code § 61-2-9(a).
The court relied on Wilson’s extensive criminal history (including a robbery conviction and prior revocations of probation and home incarceration) and, as reflected in the presentence report, the victim’s statement that a second shot was fired.
Wilson appealed, arguing the court improperly denied alternative sentencing and relied on an impermissible factual allegation (a second shot contradicted by other evidence).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the sentence violated statutory or constitutional limits	Wilson: sentence excessive given sobriety and negative drug screens	State: sentence within statutory range and discretionary	Held: Sentence within statutory limits; review deferential (abuse of discretion standard)
Whether the court relied on an impermissible sentencing factor (alleged second shot)	Wilson: second-shot allegation contradicted by him, a witness, and police; it was improper to rely on it	State: victim reported a second shot; presentence report contained this info and may be considered	Held: Court permissibly considered victim’s statement in presentence report; not an impermissible factor
Whether prior robbery conviction (20 years old) was impermissible to consider for sentencing	Wilson: robbery was remote and should not bar alternative sentencing	State: prior conviction and other revocations are relevant to contemporal risk and compliance	Held: Age of conviction does not bar consideration; prior record and revocations properly considered
Whether alternative sentencing was required given demonstrated sobriety	Wilson: sobriety showed ability to comply so probation/home confinement appropriate	State: probation/home confinement are discretionary; prior revocations weigh against granting	Held: Denial of alternative sentencing not an abuse of discretion; probation is a matter of grace, not a right

State v. Lucas, 201 W.Va. 271 (1997) (standard of review for sentencing is deferential unless statutory/constitutional violation)
State v. Georgius, 225 W.Va. 716 (2010) (reiterating deferential abuse-of-discretion review for sentencing)
State v. Goodnight, 169 W.Va. 366 (1982) (sentences within statutory limits and not based on impermissible factors are not subject to appellate reversal)
State v. Booth, 224 W.Va. 307 (2009) (same principle on appellate review of sentencing)
State v. Rose, 156 W.Va. 342 (1972) (probation is a matter of grace, not a right)
State v. Jones, 216 W.Va. 666 (2004) (cites probation-as-grace doctrine)