*1 аppropriately applied.2 The selectively and should, by opinion forth in the set definitions Virginia, Plaintiff of West STATE standard, reaching aid supplying a Below, Appellee end. require further which believe Two issues for lack of the discount
comment include Raymond RICHARDSON, Defendant marketability spousal contribution. Below, Appellant. majority did not find discount While No. 31121. case, marketability appropriate any doing so was related reason Appeals of Supreme Court of Rather, this conclu- valuation method. one Virginia. West the recommenda- sion was reached because Sept. 2003. factually unsupported Submitted was made on the tion expert assumption May’s Dr. Nov. 2003. Decided Consequent- practice be hard to sell. Dissenting part Opinion Concurring and are a viable tool ly, my such discounts view Davis Nov. 2003. of Justice process they ap- when the valuation being valuation method em- propriate to the Concurring part Opinion Dissenting and circumstances, supported ployed and the Maynard 2003. of Justice Dec. evidence, so warrant. documented regard point of clarification As contribution, implies
spousal Hoak, 179
what Hoak v. (1988), explicitly decided: spouse makes to the home
contribution earning profes person is
during the time a degree by assisting or the establish
sional practice plays professional
ment of a professional determining portion subject equitable
practice’s value which is Rather, these contributions
distribution. appropriate circum considered alimony.
stances for award reimbursement Syl. pt. 473.
Id. at opinion gener- will expect that this
While for this valuation concerns
ate additional address, majority has made JJ., Maynard, Davis and concurred equitable in this area of significant strides part, opinions. part, and filed dissented property which of marital distribution
unhesitatingly concur. generally, demonstrated in the Lawyer's area of law Valuation Hand- entitled Tl-ie Business jurisdic- opinion quotes Shannon Pratt other book of courts from incorrectly categorize goodwill as a which tions tangible problem simply with inaccurate note that the as a fixed asset. asset and cash accounting appears plаgue terms use of
4H McGraw, Jr., General, Attorney Darrell V. Goldberg, Attorney Robert D. Assistant Gen- eral, Charleston, Appellee. for Giatras, French, Troy N. Mark L. Giatras Webb, Charleston, for Appellant. & PER CURIAM: appellant present proceeding, in the was sentenced Penitentiary kidnaping. the State years in He was also to five sentenced penitentiary, concurrently run with the kidnaping endanger- for wanton appeal, appellant ment. On claims that 30-year kidnaping was dis- committed, proportionate to the crime is, consequence, as a un- the sentence constitutionally impermissible. plea parties into the After the entered
I. agreement, appellant actually bargain en- FACTS guilty pleas and wan- tered of a domestic dis- appeal arises out This charges, provided in endangerment ton *3 dispute, appellant, pute. to' the the Prior agreement. plea bargain the 20-years-old, who was sentencing appellant to the Prior long- a intermittently with living had been County pleas, of the Court Kanawha Circuit Franks, who girlfriend, Angela was time sentencing hearing at which Ms. a conducted day child. On the of the pregnant his with victim, Franks, essence, pled with the the Franks dispute, appellant the and Ms. both impose that the court a minimal sen- drinking, appellant the had and had been upon appellant. stated: the She tence entertaining suspicion that Ms. the been though to I feel what he did me was cheating even on him. Franks had been it, wrong, you It’s I’m over know. been erupted into the dispute violence after The years. and half I’ve moved on with two a apart- Ms. Franks to her appellant delivered my I’ve kids going life. I’m to school. appel- she to and after went bed. ment This on for far to raise. has been initially apartment, but later lant left the long. too He’s his lesson. It’s learned A and Ms. Franks. it confronted reentered physically not it over. I’m hurt still. ensued, argument during ar- and heated Nothing mentally My wrong with me. was gument, appellant forcefully struck Ms. mean, I perfectly healthy. I could son is and forced her to exit Franks several times something us wrong if was with one of see apartment and walk down a side street anything can’t physically to I do or where grandfather. building In the owned son, wrong my give something was building, appellant to confront continued they type him the want various serious threats Ms. Franks and made give point. go him but no there’s however, Eventually, appel- against her. him, my go up visit me children... down, he and Ms. Franks lant calmed jаil. regu- contact visits and have they apartment made where returned lar visits.... asleep. fell love and Ms. Franks also that in her visits testified day, appellant’s mother who The next him: stopped apartment, Ms. Franks’ be- had when she observed various came alarmed rage. He seems fine. There’s no There’s face. bruises and knots on Ms. Franks’ temper. He knows what he did. took Franks to own home then Ms. sat and know what he’s done. We’ve both helped she Ms. Franks and where fed apologized umpteen it. talked about He’s Subsequently, up. persuaded she Ms. clean just it. times. I’m He’s amount of tired hospital. go Franks to him tired of it. no need for to be There’s be there. He needs —I feel he needs to hospital, Following Ms. Franks’ visit to the way It wasn’t the I wanted it to out.... authorities, reported to incident was be, but it’s over. That’s how feel. with, appellant really it should be over. feel for, kidnaping, endanger- indicted wanton ment, wounding malicious and domestic bat- sentencing hearing Another witness at the tery. Clayman. Clayman Dr. A. Dr. David psychologist development of the was a clinical and forensic who
After considerable case, appellant. Clayman Dr. into con- appellant and the State entered assessed the apрellant pre- plea bargain negotiations, negotia- cluded that the was neither a bargain agreement excessively person. in a nor He plea dator violent tions resulted appellant agreed plead appellant under which the indicated that did have violence, expressed charges history and he guilty wan- endangerment, agreed opinion appellant’s that the behavior on the and the State ton giving rise to the wounding night of the incident drop the malicious and domestic charges surmised that battery charges. was “aberrant” ingestion. subjective determining also it was induced alcohol He so-called test appellant of the whether violates that his assessment the constitutional stated disproportionality principle. ques- is- That test predator and sexual violence violence tions whether sentence offends “the con- appellant sues showed demonstrated science offends the fundamental notions repeating risk of a low behavior. dignity.” Specifically, Syllabus human longer appel- further indicated id, Cooper, Point 6 of the Court spent prison, likely lant the less he would stated: socially acceptable engage be able tо be- constitutionally imper-
havior release. Punishment missible, although not cruel or unusual in indicated, previously As has at the been method, it disproportionate its if is so sentencing hearing, conclusion of the cir- *4 the crime for which it is inflicted it that appellant year’s cuit court to 30 sentenced the shocks the conscience and offends funda- Penitentiary kidnaping, in the for and State dignity, thereby mental notions of human years Penitentiary in five the State for wan- violating Constitution, Virginia West Arti- endangerment. ton III, prohibits penalty cle Section 5 that previously, As has also been stated on is proportionate that to the character appeal, appellant 30-year the claims that the degree an of offense. kidnaping constitutionally sentence for is im- Further, id., Cooper, v. State the Court permissible given the circumstances of this suggested affecting subjec- that factors the ease. impact age tive of sentence the include defendant, victim, the statements of the II. evaluations and recommendations made in anticipation sentencing. STANDARD OF REVIEW mind, principles these this With Lucas, Syllabus In Point 1 of v. State Court has examined the circumstances of the (1997), present appel case. Thе facts show that the Supreme Court that: “The stated Court of years twenty lant was old the time of the orders, including Appeals reviews charged age crime to the nineteen- —close orders restitution made in connection with victim, year-old Cooper in the case. Ms. The sentencing, a defendant’s under a deferential Franks, appellant’s who is the mother of the standard, abuse discretion unless the or child, she, has stated that neither nor the statutory der violates or constitutional com child, injured permanently aas result of mands.” plainly expressed the incident and has opinion lengthy unjustified. that a is sеntence III. suggested has that it also would be in appellant her best for interest receive DISCUSSION Finally, psychological a lesser sentence. Both the United States Constitution that evidence the case has indicated Virginia prohibit and the West Constitution appellant’s night behavior of the crime disproportionate which sentences appel was “aberrant” that the Eighth committed. The crime Amendment repeating lant has demonstrated a low risk of to the United States Constitution creates the psychological has it. The evidence also indi Helm, prohibition. Solem v. federal See longer appellant that cated remains 3001, 77 U.S. 103 S.Ct. L.Ed.2d 637 prison, engage in he will be able to less Virginia’s prohi constitutional West socially acceptable behavior. Virginia is bition contained West Constitu endangerment charge, On the wanton tion, III, 5,§ provides: Article which “Penal against which actual acts of violence involved proportioned shall ties be the character Franks, appellant Ms. was sentenced to degree of the offense.” Penitentiary, years pro- five the State Cooper, In v. 61-7-12. State 304 vided W. Va.Code On the other (1983), hand, kidnaping, charge this Court established issue appellant sеn- that the appeal, appellant was sen- ed directions present in the Penitentiary, years in to 10 the State in the tenced maximum tenced to the concurrently run with the wanton endan- under W. 61- Penitentiary allowable Va.Code charge. kidnaping germent 2-14a(a)(4).1 vio- acts of plainly, Rather seriously Ms. Franks more lence harmed and remanded with directions. Reversed appears kidnaping, it than the ancillary of vio- to the acts kidnaping MAYNARD DAVIS Justice Justice lence, than end itself. dissent, rather part; and files part; concur separate opinions. circumstances, the overall Under J., DAVIS, concurring in 30-year sentence Court believes part. dissenting in imposed upon appellant does 2003) constitutionally (Filed conscience and shock the Nov. Cooper, impermissible id. under State proceeding deter- ten-year also believes years imposed of 30 mined that kidnaping as set forth minimum sentence for for the crime of 61-2-14a(a)(4) should have W. Va.Code kidnapping and is “shock[s] the conscience 30-year sen imposed, rather than been impermissible[.]” constitutionally In view *5 imposed circuit court. tence the kidnapping fact was incidental to the stated, plea of judgment underlying crimеs and the victim’s reasons the of For the mercy reluctantly County for Mr. I con- of Kanawha is re- the Court Circuit majority’s that the appellant’s cur determination as it relates the the versed insofar ma- and this is remand- sentence was excessive.1 case 61-2-14a(a)(4) clothing. piece Virginia provides he me remove a of He made 1. Code West years. nothing did I had left on. He started from to 30 this until a sentence of 10 very beating some more. He struck me me My reluctant I continue concurrence is because hard which knocked all the air in the stomach egregious of to be troubled context domes- me out me. Then he beat on some more. of were tic within which these crimes com- my violence gasoline legs kept poured Then he on and which details tire has ne- mitted cheating interrogating me as to who was glected mention in statement of the its facts up. he bum He with. He said would me underlying appeal. According this to the state- away He then came back. urinated on walked 13, 1999, gave May police on ment Ms. Franks spit punched me on me. Then he me in day giving rise to Mr. Rich- of incidents already kept doing He that. was head. and convictions at issue ardson’s indictments strangled ground. on Then he me. hеrein, following transpired: events my Ray- put thing happened he told ... clothes that After that me The first that was apartment, couple back As we walked back to and I and another went on. mond Dog he this was the last time I would see to have dinner and to bet said that Track Nitro apartment place. got dogs. We to the he went back the other cou- back We finally ple’s my hit me. said I was apartment. Me and female friend continued to that get stop beating Raymond's cheating just me. take little him to on went to the store and to just if I admit He had said would it he would home. When back cousin stop. he He went then came back and he had an attitude towards me. downstairs was silent up going in the He told me that I him that was to have an and laid bed. told if he go asleep if me We could not fall because he saw we should home. went attitude get falling asleep again. me He he beat He would out of the car. He home. not though lying asleep. half After all of this dropping was me off. I was there acted as he wrong happened it 8:00 am. Then he what and he would had was about him was not asked say any- having anything. on him not apartment into the started thing about I went nothing. he he straight that has He said About 20 or 30 minutes went bed. through have died with his friend last Decem- came in a window should later he downstairs my charged upstairs. he went chain that I was because ber. Then bought to break scared Day. finger beating He me. me on Mother’s cut his then he started He noise really losing why lot A asking cheating him He was of blood. I was bad. open. his came and knocked on the door. why At first he was friend of Raymond window fists, me, punching kicking me he was the one. I said me asked if with his you coming yes. up when friend at biting He said showed me. Then he said go. again When door he wanted me to shoot him. I had to had me and went outside. guy pointed Raymond’s gun my stopped at came neсk. At each corner we me
415 jority’s has except decision remand case for Court no alternative to exercise impose punishment specific supervisory power circuit court to its over the administra- years, precedent justice of 10 lacks in this State. tion in the lower federal courts below, For out the reasons set dissent from by setting aside the sentence of the Dis- require that part of the decision to circuit trict Court.
court to impose sentence. [Tjhis view, exercising Court is The Determination of a New Sentence judgment that we are now called Have Been Should Left tо the exercise, petitioner the time that Judge Discretion of the Trial already jail adequate has served is an recognized It appellate has been that “an punishment for her offense. may only
court
in rare
instances
reverse
Yates,
366-67,
[W]hen in situation like this Dis- 294 281 W.Va. S.E.2d appears trict Court not to havе exercised each those decisions this Court remand- fight its discretion of the reversal ed ease with that the trial instructions but, effect, judgment sought permissible to have court a determine sentence. is, merely justify original to this That none of those did this decisions guy's Raymond grabbed vagina causing other head and he ran. her with took his hand an Raymond gun right from me then. back then abrasion to the labia. The accused held keys saying against night Angela throughout his left her will to finger. hospital morning for his He told me that into the and afternoon hours. Finally, better not leave the or I would have as if facts are house these not treacherous own, my daughters anymore. enough standing two After he left on their the record also that, stayed my Ray- beating, room cried. Then showed at the time of this brutal hugged pregnant. mond’s mother came. be- Franks me Ms. was three months Fortu- nately, happened. Angela appear cause what had she had learned neither nor her child to put any injuries permanent She told me to some clothes on she have from sustained Mr. reign told me leave with I have terror. her. not heard Richardson’s light from since. of all of these details of the incidents then, reported underlying great appeal, with Additional faсts Ms. Franks it is investigating majority’s deci- detective the incident indicate reluctance that I concur Nevertheless, point. agree at she was treated CAMCWomens and Chil- sion on this Hospital injuries drens upon for numerous inflicted Court's conclusion that circuit court commit- Angela injuries by imposing her. had visible all ted error the maximum sentence over neck, face, torso, body, including vagina, kidnapping for Mr. Richardson convic- heavy legs. injuries arms and These included failed consider tion insofar as such sentence abrasions, burns, swelling, cigarette bruising, kidnapping that the was incidental to the more and bite which Mr. had [Mr. mаrks.... accused Richard- horrific crimes with pointed handgun Angela a at son] loaded been and further failed to consider Ms. mercy plea during kill threatened to her.... The accused burned for his Franks’ hearing. Angela cigarettes during interrogation 416 ten-year [recommended that a sentence specific a seem judge impose a trial Court direct appropri- decisions, probation officer] would be by the Buck of those In one sentence. comí; however, ate; trial to the we remand (II), to exercise expressly declined this Court judg- resentencing according to his best impose spеcific a for authority to
its inherent
ment,
opinion.”).
consistent with
sentence.
majority was not
In the instant case
(II)
was asked
de-
In Buck
this Court
that refused to
a trial court
confronted with
years im-
of 75
a sentence
termine whether
Comí;.
by this
a
ordered
reduce
sentence
had
This Court
prisonment was excessive.
refusal,
justification
exist-
such a
Without
(II),
v. Buck
determined
State
previously
specific
majority
impose a
sen-
ed for the
(1984)
that the
406
Moreover,
majority
in this case.
tence
and remanded the
was excessive
sentence
message
trial
chilling
sends a
decision
trial
resentencing.
remand the
for
case
ie.,
not trust
judges,
does
to 75
again
the defendant
court
sentenced
judges. Nothing in this case warranted
trial
(II)
again
In Buck
years imprisonment.
authority
judge
of its
stripping the trial
The de-
was excessive.
found the sentence
on remand.
permissible
a
sentence
select
(II)
in Buck
this Court
fendant asked
im-
or other
was no evidence of bias
There
impose
specific
trial court to
instruct the
judge.
trial
of the
propriety
decision,
citing
After
to the Yates
shown,
Further,
if such
even
evidence
request as follows:
we addressed
to fol-
approach would have been
the better
defendant’s invitation
dеcline the
We
(II)
appoint
precedent of Buck
low the
power
...
virtue
have the
hold that we
v.
sentencing judge.2 See Garrison
new
powers to set
supervisory
our
inherent
(Alaska
State,
App.1988)
P.2d
Instead,
him.
reduced sentence
(“[I]t
J., concurring)
is not the
(Singleton,
again remand this case for recon-
will once
impose
function to
sentence
appellate court’s
guide-
of the sentence under the
sideration
appropriate
specific
specify
or to
sentence
do, however,
We
lines
contained.
herein
Fortes,
case.”);
114 R.I.
judge
involved circuit
conclude that
(1975) (“[Rеduction
330 A.2d
resentencing,
preside upon the
should not
by a
normally ought not to be made
therefore,
will,
appropriate
and we
on remand
reviewing court but should
left
designate another cir-
administrative order
agree that
sentencing court. We
resentencing.
judge to
cuit
handle
equipped than this
trial court is better
(II),
173 W.Va. at
Buck
*7
administration of
phase
handle this
of the
(II) pre-
Although
411.
facts of Buck
Therefore,
justice.
remand the cause
appel-
in
instance which
sented the rare
than determine
Superior Court rather
may impose specific
late
which would
appropriatе sentence
here the
D.W.,
v. David
to do so. See State
declined
discretion.”).
bounds of
be within the
156,
177,
167,
588
166
214 W.Va.
in
foregoing,
concur
In view of the
1,140
(2003)
(“By imposing a total sentence
part.
in
and dissent
2,660 years
prison upon
appel-
years
in
case,
in
trial court violated
lant
Justice,
MAYNARD,
dissenting,
part,
abused its dis-
proportionality principle and
concurring,
part.
and
Therefore,
this case
we remand
cretion.
(Filed
2003)
8,
Dec.
resentencing within its
the trial court
outset,
266,
with an unusual
At
I am faced
discretion.”);
Cooper, 172 W.Va.
(1983) (“It
figure out how to
851,
It
difficult to
dilemma.
is
304 S.E.2d
petition
by filing
in a
only
a habeas
My
the sentence
one casе where
uncovered
research
disproportionate and
relief.
found a sentence
court denied
this Court
circuit court. The circuit
imposed
v. Bor
year
In Keenan
appeal
we found the ten
to this Court
denkircher,
disproportionate.
as the
Insofar
sentence was
(1982)
escaped
was an inmate who
the defendant
years
approximately
two
defendant had served
caught
prison.
defendant was
he
from
After the
Hall,
pun-
adequate
"[t]his
we held that
North
hearing
wherein he
had an "administrative"
we find that the remainder
and therefore
ishment
guilty
escape. The defendant was sen
found
Keenan, 170 W.Va. at
is void.”
of his sentence
segregation
punitive
facil
tenced to 10
ity
at 177.
294 S.E.2d
challenged
Hall. The defendant
called North
separate opinion.
trying
gain
style this
Without
door to
entrance. She carried a steel
cases,
wrench,
distinguish
between the two
and for
crowbar and a crescent
tools which
better,
anything
by anyone’s
on
want
have settled
can
deadly
standards
be used as
caption.
weapons.
above
Brooks attacked Barker with the
crowbar, striking her in the elbow. After
separately
firmly
I am
write
because
McCoy
her,
wrestled the crowbar
from
justice system
сonvinced that
the criminal
attempted
Brooks
McCoy
to attack
with the
two
treated the
defendants
these two
McCoy
crescent wrench.
bit
disparately
patently
eases so
unfair.
finger and forearm. Brooks herself suffered
said,
being
say
That
let me also
a broken
I am relatively
nose
the fracas.
judge
nothing wrong.
circuit
in each ease did
certain that
or all
some
of those involved
The result reached under each set of circum-
treatment,
must have needed medical
entirely proper,
any judge,
stances is
police officers were called to the scene.
including
separate opinion,
author of
easily
could
have reached the same result
Before
relate
the facts
State v. Rich-
and sentence.
ardson,
Nonetheless,
(No.
dissimilarity
believe the
2003),
WL 22533429
31121 Nov.
with which the two
readily
defendants
these eases
admit that
by
the violence suffered
pointed
by
were treated should be
out
some- Franks at the hands of Richardson is far
light
one
some fashion.
order
shed
egregious
by
more
than the violence suffered
dissimilarity,
compare
one must
McCoy
Barker and
at
hands of
Brooks.
charges
facts and contrast the
and sentences.
outing
Richardson and Franks
аt an
were
engaged
The actual conduct
each of
dog
during
track
Nitro
which time
compared
these defendants when
all
is not
drinking.
both were
Richardson then took
charges
that different.
levied Franks
and left.
home
He later returned
against
imposed
sentences
two
apartment
through
entered her
a win-
very
dissimilarity
different. The
trou-
times,
hitting
dow. After
Franks several
he
bles me.
dragged
forced her to leave with him. He
down
her neck
the street with no
First,
compare
let me
the facts. Both of
building
clothes on to a
that was owned
grew
relationships
these situations
out of
grandfather.
pulled gun
couples
living together.
which
were
Both of
beating
Franks while he was
her. When she
situations
included member of a rela-
leave,
attempted
began punching,
kick-
tionship who
wished
dominate and control
ing,
biting
sexually
her. He
assaulted
the other member. At the time the other
cigarette.
her. He burned her with a
member became disaffected with the rela-
poured gasoline
legs
on her
lit a
feet and
leave,
tionship
attempted
the dominat-
cigarette. After he
to bum
threatened
ing
power
member felt his or her
and control
up,
briefly,
he left
and then
returned
slipping. And in the usual manner of domi-
spat on
All
urinated and
her.
of this оc-
controllers,
neering
that member decided
*8
curred at a
Franks
time when
was three
that he or
not
she was
to let that
pregnant.
months
I should
that in
mention
happen.
quickly erupted.
Violence
At least
spite
of the violence inflicted
concept
as far as I understand
domes-
supported
victim
has
Rich-
violence,
tic
the sum and
substance
throughout
proceedings.
ardson
these
really
conduct in both of these cases
consti-
appeared
Franks
before the trial court and
tutes domestic violence.
pleaded
judge
with the
not to
incarcerate
Brooks,
In State v.
appeared
defendant.
She even
the oral
(No.
which Mi*. prison? facing 30
would she be hand, escape would Mr. Richardson
the other completely if broke into the
prison time *9 sentence, absolutely no Actually, precise, Court has in Brooks I concur with Brooks’ authority to be only increase her so "dissent” opinion; the sentence I the entire it is with, and, completely although disagree accurate. disagree not be