*1 S.E.2d 521 STATE of West NICASTRO.

Keith Lawrence No. 18581. Appeals Supreme Court Virginia. July *2 Lazell, Gen.,

Joseph A. Asst. Atty. Charleston, appellee. Buckhannon, Roger L. Thompson, for Ni- castro.

McHUGH, Justice: This case before appeal of Keith Lawrence Nicastro. The was convicted of remuneration, Upshur County. the Circuit Court of petition have reviewed the appeal, all record, parties. matters and briefs of the opinion We are of Upshur County the Circuit Court of should part, be affirmed in and this case re- sentencing. manded reconsideration of

During June, May months of and in Upshur County the sheriffs office began operation an undercover to investi- gate drug-related offenses, some of which occurring were believed to be on cam- pus College. of West Wesleyan investigation pro- involved a “switch gram,” deputy which involved sheriffs counties, working from several in different counties, posing drug pur- prospective chasers.

Jerry McCauley, deputy a sheriff in Ran- dolph County, assigned was to an under- investigation Upshur County cover May, McCauley testified at trial that Larry Spittler, June he and informant, appellant’s apart- went to the roommate, appellant’s ment. John Twill, present appel- time. The McCauley Spittler lant and Twill told and couple days a that within quarter-pound would Twill 19, 1985, McCauley marihuana. On June Spittler returned to the arriving, apartment. Upon com- Twill was ing apartment. told out Twill Spittler only McCauley there was Specifically, left inside. maintains quarter-ounce of marihuana allege met Spittler inside and because the indictment failed to McCauley and went Nicholas, a friend remunera- place took “with Robert conversing tion,” appellant. After the appellant’s conviction should be *3 minutes, if he asked appellant agree set aside. We do not this con- few with did replied that he the marihuana. He tention. had much McCauley Spittler and how and asked alleged The indictment in this case quarter “a they McCauley replied, wanted. June, appellant, “on day the 19th of into another appellant went ounce.” The unlawfully feloniously 1985 did and deliver bag marihua- a of room and returned with substance, marihuana, a controlled to-wit: appellant McCauley how na. asked [60A-2-204(d)(13)], I listed Schedule marihuana. money for the much he wanted 60A, provisions Chapter of violation dollars, twenty-five appellant said The 401(a) Virgi- of Article Section the West appellant. McCauley gave to the Code, nia as amended[.]” indicated that The at trial State’s evidence appellant important claims delivered was 5.8 the amount of marihuana Va.Code, alleging a factor violation of W. grams. 60A-4-401(a) is whether the offense was trial that he appellant testified at committed “with remuneration” or “with- McCauley He also never sold marihuana. appel- out remuneration.” roommate, Twill, testified that his John or not remu- lant maintains that whether drugs and on

bought frequently, and sold neration should set forth was involved during the summer of one occasion in the indictment. appellant drugs “handed” to someone Code, 60A-4-402(c) However, provides: purchased from the W.Va. who Twill. “Notwithstanding any provision other of appellant testified that this was not what chapter contrary, any happened Deputy in this case McCau- this to the first of- with distributing grams ley. fense for less than 15 any without remuneration shall marihuana that his also testified disposed of under section 407 60A-4- [§ friendship with Robert Nicholas had ended 407].” therefore, summer of and prior to the alone Nich- was never provides: 60A-4-407 [1971] appellant’s apartment, in the as al- olas pre- any person who has not Whenever Furthermore, ap- leged by the State. viously been convicted of offense building in pellant testified that the chapter this or statute under under apartment frequented his was located was of the United States or of state throughout by people the summer several relating drugs, to narcotic or of 1985. stimulant, depressant, hallucinogenic or drugs, pleads guilty was convicted is found substance, of a controlled with remunera- possession of a controlled substance 401(c) 60A-4-401(c) 60A-4- ], violation of under section [§ 401(a) [1983],1 court, entering and was sentenced without a Penitentiary for one to five guilt and with the consent of the ac- years. cused, may proceedings defer further place upon and him on terms

II Upon term and conditions. violation of a condition, may adju- enter an the indict- contends proceed sup- guilt dication of as other- ment in this case was insufficient to Upon fulfillment of the port provided. of a con- wise his conviction of conditions, terms and the court shall dis- trolled remuneration. 1. W. "Except lawful for Va.Code, 60A-4-401(a) as authorized any person this manufacture, deliver, ^[1983] chapter, it is un- provides: or er, possess a controlled with intent to manufacture or deliv- substance.” charge pro- Act, and dismiss the Code, 60A-4-401(c) stance ceedings against him. Discharge 60A-4-407 ^[1971] recognize this problem by making posses- dismissal under this section shall be with- first offense sion of grams marijuana under 15 adjudication guilt out not a mandatory probation. misdemeanor with purposes conviction for section or Particularly college localities, many purposes disqualifications or disa- young people likely to find them- imposed by bilities law conviction of premises selves on leased or owned crime, including penalties additional age others of their group own on which subsequent imposed for second or convic- substances be found. tions under section 408 [§ 60A-4-408]. *4 dismissal Id., effect of such and dis- 158 W.Va. at 213 S.E.2d at 467. charge person shall such be to restore Furthermore, syllabus point 2 of State contemplation to the of law status he 309, Carper, v. 176 W.Va. 342 S.E.2d 277 occupied prior to such arrest and trial. (1986), “W.Va.Code, we held that 60A-4- person No as to whom such dismissal 402(c),mandates that a guilty defendant of discharge have been effected shall a first offense distributing less than guilty held to perjury, be thereafter be of grams fifteen of marihuana without swearing, false giving otherwise remuneration is mandatory pro- entitled to false statement reason of his failure W.Va.Code, bation under 60A-4-407.” acknowledge to disclose or such arrest or Obviously, legislative ju- enactments and in response any inquiry trial made of dicial decisions confront the critical nature him any purpose. There only regard of remuneration in to first offense discharge one and dismissal under this provisions violators of certain of W.Va. section respect any person. Code, chapter 60A. period After a of not less than six However, we have been consistent begin months which shall to run immedi- holdings in our indictment for a “[a]n ately upon expiration of a term of statutory if, offense is charg sufficient probation imposed upon any person un- offense, ing the substantially it follows the chapter, person may der this such apply language statute, of the fully informs the to the expunge court for an order to particular accused of the offense with from all official records all recordations charged which he is and enables the court arrest, trial, conviction, of his pursu- to determine the statute on which the ant to this section. If the court deter- 3, charge Syl. Hall, pt. based.” State v. mines after a hearing that such 138, 172 W.Va. 304 S.E.2d 43 Ac during period of such cord, syl. Mullins, pt. State v. 181 W.Va. during period prior to his time (1989); pt. 1, 383 S.E.2d 47 syl. application to the court under this section Fairchild, 171 W.Va. 298 S.E.2d 110 has not been guilty serious or (1982); Eden, see also 163 W.Va. repeated violation of the conditions of 370, 387, (1979); syl. S.E.2d pt. probation, it shall enter such order. Slie, 158 W.Va. appellant correctly points out that (1975); syl. pt. Boles, Pyles v. this Court significance has noted the of the (1964); 135 S.E.2d 692 statutory provisions allow less se- Younger, 130 W.Va. penalties vere not involv- offenses ing remuneration. alleged The indictment in this case Dudick, In State v. W.Va.Code, appellant violated (1975), S.E.2d 458 it was stated: 60A-4-401(a). noted, not, As it did

This perva- takes notice of way, refer to syllabus remuneration. drugs sive abuse of among point Meadows, 1 of State v. young inexpe- 191, (1982),

adolescents and adults too we held that rienced to dangers language aware indictment that follows the “[a]n W.Va.Code, 60A-4-401(a), narcotics. The Uniform Controlled Sub- of is sufficient holding, amended, it convic- is sufficient to sustain a its Based face.” necessary for an indict- even it is not tion for clear that case, allege ment, though stating such as one the indictment omits wheth- remu- committed with alleged that the offense was er offense was committed neration. or without remuneration. followed in this case

The indictment statutory language Ill although it 60A-4-401(a) [1983], and failed contends that the circuit remuneration,” the evidence allege “with by failing to submit committed error presented proved at trial the jury a verdict which would allow to find marihuana, with remuneration. delivered a con- committing the of denied trolled substance without remuneration. altogether. fense the indictment fol- Two forms were submitted because verdict language 60A-4- jury. lowed The first verdict form included 401(a) support remuneration,” [1983], provided it sufficient to words “with in this case. “guilty” conviction verdict. other verdict *5 merely provided guilty” form for a “not contention would indicate sub- verdict. There was no verdict form is an element of a con- that remuneration provided guilty mitted for a which verdict W.Va.Code, 60A-4-401(a) viction under the remu- which included words “without Obviously, legislature the never [1983]. neration.” The contends that the to such an element. intended include to a circuit court’s failure submit verdict compare probation provisions of We the stating con- form “without remuneration” Code, chapter 60A W.Va. stitutes reversible error. Code, 62-12- 62-12-2 Pursuant [1986].2 2(c)(1), felony an indictment must We need not address this contention be- assignment fact firearm used in clear this include the that a cause it is that preserved fol- the commission of the crime. This statu- error was not at trial. The provision lowing exchange make use of tory does not the a occurred: fact with or without the defendant firearm an element of clude tion of must quired In contrast, be whether W.Va.Code, 60A-4-401(a) included in the indictment. legislature is the offense was committed indictment remuneration. indicted, legislature the has but it is felony alleging required has for which ^[1983] merely will not a viola- not re- in- a verdict; Yes, Your Honor. form of verdict? dict, MR. THOMPSON THE THE COURT: ... MR. ROSS both COURT: sides? [prosecutor]: you Any objections seen [defense Now, Yes, form the form of counsel]: sir. of ver- requirement. None, judicially impose such a MR. ROSS: Your Honor. alleging objection, a Your Accordingly, an indictment vio- MR. THOMPSON: No W.Va.Code, 60A~4-401(a), Honor. lation of as nent person felony would make tion. ... ing tion under subsection cause of the commission section to the (b) (c) (1) part: of a firearm shall be with the who commits or provisions 62-12-2 existence contrary use, presentment ^[1986] (b) attempts subsection notwithstanding, ineligible ineligible provides, attempted this or brandish- fact which section for (a) commit proba- proba- of this perti- corn- any be- a (emphasis supplied) nolo matter the matter be tried before found cable unless such which such mission of a or ting indictment included in the brandishing purpose contendere, by be tried such the court person felony jury (iii) or a firearm a fact is with the upon a found (ii) special charged and is either court, is found a clearly or jury, upon shall not be use, plea interrogatory presentment by without a by presentment court, stated and submit- jury, appli- if jury, (i) or if Then, right. that’s constitute error. All reversible THE COURT: Barker, we’ll use. the form verdict syllabus point In 2 of Trial Tr. 185. Barnett, 168 W.Va. 17 of syllabus point In (1981), S.E.2d 622 we held that a crim- “[i]n Thomas, 157 W.Va. Code, inal trial 60A-4- violation (1974), this Court stated: 401(a), the jury must be instructed about rule, general proceedings of trial As a including each in- element of the crime regular, un- presumed courts Barnett, tent.” we relied on contrary affirmatively appears less Dunn, (1978), record, assigned for upon the and errors wherein we stated: the defen- “[WJhere appellate the first time in an court will charged dant con- regarded not matter of which felony carrying trolled serious jurisdiction trial court had or which sanctions, penal the trial court should have might remedied in the trial have been instructed on these essential elements of objected if to there. knowledge holding and intent. Such a It is clear from the record that actually necessary implication inherent assign preserve failed to Id. statutory wording.” Consequently, there is no ment at trial. (citation omitted). 246 S.E.2d at 252 regard.3 error Barnett relies Dunn holdings support his con- IV tention that the trial court failed to instruct contends the circuit jury on the element of intent. We by failing court committed error to instruct *6 disagree. jury knowledge the on the elements of intent.4 Dunn, In Barnett the instructions complained

“An instruction that defines a crime of did not mention “intent” at us, but omits an essential element of the crime all.5 the case now before the critical sentencing, knowledge. that at counsel the 3. note included the elements of intent or insufficiency appellant’s of the raised issue We address the this contention in However, raising assign- however, regard, duty give the verdict forms. this because the to sentencing timely preserve 2, ment at was not to it. Syl. pt. an instruction is on the trial court. 192, Dozier, 2, full Instruction as text State’s No. (1979). amended, is as follows: jury Court instructs the that it is unlaw- Barnett, proceedings 5.In the two involved in manufacture, deliver, any person or ful for to " juries they the instruction to the stated that ‘if possess with intent to manufacture or deliver beyond believe from all the evidence a reason- substance, any person a controlled and that doubt, accused, able that the at the time and manufactures, delivers, possesses who herein, place alleged in the indictment commit- intent to manufacture or deliver a non-narcot- charged against ted the crime him in said indict- ic controlled substance classified in Schedules I, ment, they guilty as then should find him III, marihuana, including shall be II ” charged in the indictment herein.’ felony, of a and the Court further in- S.E.2d at '623. 284 jury you structs the that if believe from all of case, Similarly, beyond complained evidence this a reasonable the instruction of in the doubt, in Defendant, Lawrence Dunn stated: Keith Nicastro, did, June, 1985, they jury day ‘The Court instructs the that if on the 19th beyond Upshur County, Virginia, all in deliver a believe reasonable doubt from defendant, namely, evidence that Jesse James Dunn, October, 1974, day you deliv- remuneration then should find the Defen- on the 11th McCormick, dant, Nicastro, guilty remunera- Keith Lawrence of deliv- ered to William Jr. for tion, substance, namely Lysergic ery a controlled controlled substance for remunera- (LSD), Diethylamide they Felony charged must find as in the Indictment Acid then defendant, Dunn, guilty the said Jesse James herein. felony.’ (emphasis supplied) aof 2, objected 162 at 72 n. 246 S.E.2d at 251 n. 2. We note that the neither 2, amended, Obviously, in of- no mention of intent is made State’s Instruction No. nor instructions. fered to the circuit court an instruction which these 562 drugs or that he sold scale distributor included twice within intent was

element supporting other than his own 2, for reasons as amended. No. See Instruction State’s Gordon, 1188, 444 So.2d State habit. note 4. supra (La.1984). Similarly, Supreme 1191 no error committed there was prior felony Kansas has held that Court of regard. the circuit considered sentenc convictions illegal posses ing a defendant convicted V 4, pt. Syl. and sale of marihuana. sion 282, Coutcher, 424 P.2d 198 Kan. contends that the Finally, Bell, (1967). People v. 53 See also 865 its discretion sen- court abused circuit (1972). 122, 130, 219 Ill.2d 290 N.E.2d years in the state tencing him to one five that courts will consider Another factor contending, appel- In so penitentiary. history the defendant’s supporting reasons forth several lant sets Garza, drugs. State v. involvement with (1) let- incarceration: twelve probation over (Ct. 40, 46, 704 P.2d 950 109 Idaho judge, the circuit court ters written (Idaho review denied App.), petition regarding ap- appellant, behalf State, 20, 1985). 577 Davis v. Nov. See (2) reputation; good character and pellant’s 1978); (Alaska v. Fisch P.2d 694 proba- recommended probation officer 325, 327, 149 er, 498 P.2d 108 Ariz. work skills tion due to Gama, Ill.App.3d (1972); People v. record; (3) a conten- prior criminal lack (1975); 584-85 338 N.E.2d judge did not circuit court tion that 392, 393, Koch, N.W.2d imposed v. Neb. probation, but seriously consider the controlled Whether cam- sentence fulfill an unreasonable type cre (4) judge involved is of a the circuit court substance paign promises; community problem may also under the ates a severe probation to all indictees denied drug-related sentencing. People indict- considered September included; 149, 154, Ill.App.3d 15 Ill.Dec. ments, Douglas, in which nonviolent; (6) there 373 N.E.2d (5) the crime was appellant is con- held excessive where no evidence that Sentences have been prospects for drug trafficker. the defendant’s rehabilitation sidered a reasonably good and incarceration *7 opposed probation because State purpose for the de serve no useful would felony. appellant was convicted fendant, drug-related convicted of a of probation is within the matter of “[T]he 426, Carter, Conn.Supp. 21 fense. v. of the trial court.” State sound discretion 862, 428-30, (Super.Ct.1958); 158 A.2d 864 718, 720, Miller, v. Kane, 500, 513, Ill.App.3d 333 People v. 31 W.Va.Code, 62- also 481 See Winters, (1975); People 257 N.E.2d [1988]; Turley, 177 W.Va. 12-3 1056, 1059, Ill.App.3d 324 N.E.2d 25 (1986); ex rel. 350 700 S.E.2d Brennan, (1975); 115 N.J.Su 251 Simpkins Harvey, (App. 904 per. 279 A.2d Div.1971). 21 Am.Jur.2d generally See (1981 Supp.1989). Law Criminal § emerging body authority There is an guidelines which trial sets forth factors, held courts to foregoing trial and factors which courts should follow sentencing persons in con- be considered sentencing in defen- courts should consider offenses, do not dis- drug-related victed drug-related offenses. dants convicted of illegal drugs tinguish between amounts aggravating and These include the factors impor- view these factors as involved. We particular mitigating circumstances sentencing persons in con- guidelines tant offense. offenses, espe- drug-related but victed of il- important in where the imposed cially situations sen- It has been held that de- legal drug the amount no tence where there was was excessive grams, and the large- was less than livered evidence that the defendant was criminal first factor a trial court should consider. Rath- is the defendant’s conviction er, offense. the matter of remuneration should be carefully weighed with the other factors im prior that we hold we have set forth. recommen- incarceration position of a sentence of officer, course, probation dation of the is delivery of less than defendant convicted of lightly regarded not to be court by the trial in violation of grams of marihuana in sentencing. 60A-4-401(a), amended, as re who, the “without although degree not within We are concerned exception of 60A- muneration” harshness that reflected in the cir- amended, prior 4-402(c), has no criminal cuit Unargu- court’s sentence in this case.7 (1) record, consider: a trial must ably, drugs problem are a in our serious history has a whether the defendant society today, literally taking lives (2) drugs; illegal whether involvement with ruining some and lives of others. good reasonably pros is a the defendant circuit court’s discretion rehabilitation; (8) pect for whether incar drug-related something offenses is not purpose; ceration would serve a useful quick upon.8 this Court is to intrude (4) to incar whether available alternatives convinced, however, are not ceration, probation such as conditioned factors which we set forth service, upon community would be more opinion properly weighed deciding were appropriate.6 sentence. indicate The facts this case noting We believe it is worth it has been of less was convicted pointed recently, out that “attitudes toward grams of marihuana. As discussed than 15 justice public crime and show that officials previously opinion, grams sig- justice personnel ‘erroneously and criminal determining nificant in whether a perceive public punitive to be more W.Va.Code, chapter convicted under 60A pris- receptive thus less to alternatives [to possibly will be entitled to ” actually than is the case.’ Shein and per- from the on] removal of conviction Furthermore, Jopson, Sentencing Drug son’s criminal record. there Offenders: is no was in- Judge, evidence Sentencing Need to Sensitize the trafficking. volved in (1988) (quoting 24 Crim.L.Bull. Found., Agenda The Public Crime and holding today way Our no intended (Sept. Punishment: The Public’s View to diminish the factors that a trial court 1986)). reveals, in part, This attitude our already sentencing. considers in Whether being concern with the adverse effects that the defendant is convicted of prison may confined in have on the incar- remuneration, or without as well as *8 person, cerated which would be unfortu- remuneration, amount of remains critical in However, nate, sentencing. only considering person’s the the incarcerated this is not States, The circuit court should not consider one United 488 U.S. 109 S.Ct. 6. (1989). of these factors to the exclusion of other L.Ed.2d 714 Rather, give factor. the circuit court should weight every to factor. Court, 8.Although we not an issue before this dispari- potential are also concerned with the of guide- ty among throughout noteworthy the circuits the State in We find it that under the courts, drug-related sentencing promul- sentencing Under a for federal for offenses. lines in disparity Sentencing complete development, gated factual the United States Commis- sion, disparity type case would have re- could become an issue. This of the among primary only federal courts was a concern ceived a sentence of tion, 0-6 months incarcera- guide- eligible proba- of uniform and would have been for which led to enactment sentencing, promulgated by the because the amount of marihuana in- lines for federal Sentencing grams. guide- Commission. was less than These United States volved Cf. Buck, recently lines have been held constitutional v. (1984) co-defendants). Supreme (disparate sentences for the United States Court in Mistretta v. part; in Remanded for recon- mem- Affirmed becoming productive of probability sentencing. sideration of society released. of when ber cases, a viable alter- probation is In some WORKMAN, Justice, dissenting: Judge Haymond sentencing. As native majority’s I concur affirmation of simply 1968, “probation out in pointed conviction, appellant’s but must dissent system enlightened of the devices of an one regard to the remand for reconsidera- purpose its has for penology of sentencing. tion of of the crimi- reclamation and rehabilitation imposed by the circuit Melton, The sentence nal.” ex rel. Strickland judge obviously stringent was a one under properly considering the factors which we See sentence again Law: The have set forth by sentencing judges and the ly outdistanced ommend that alternative probation. consider it imposition of impose a common alternative § 1986). Hence, authorizing their use.” olence? 29 Buffalo Rev. Harvey, 172 W.Va. munity case before 62-12-3 [1988] alternatives (1968). Ordered We 18-2.3(f)(a;)(ABA community also 3 Standards encourage consider the community service as a condition of Accord, service, if it is Community Service in Criminal imposed Upshur County Continuing Tyranny remand this Community the circuit court. service community lieu of incarceration.9 the circuit court authorizes a circuit court to legislative activity explicitly if herein, to ensure sentencing, including com- community is not circuit court to consider particular L. 2d ed. 1979 312, 319, 305 S.E.2d programs ex rel. service has become case sentencing. warranted unduly Criminal Justice Harland, service so that case, service development Simpkins the Circuit harsh. sentence, sanctions seriously we Court- Benev- it in the great- Supp. is an “The rec- more, provides, forth judge and ly the trial court law tion to to which this Court is have But this is not all the facts and circumstances of the case W.Va.Code §§ by this execution of sentence and release the motion, may suspend quire preceding section offender pear to the that he be fined he is not and that circumstances For the character the record the trial court fact, Whenever, of the State of West court, upon application placed far W.Va.Code § the standard for routinely impose based on the information eligible too article.... presiding such conditions as likely again part, on satisfaction of long judge 60A-4-401 upon the conviction appeal, the sentence that he did. public good substituted the judge this Court [§ over the case indicate that in this case the discre- 62-12-3 (emphasis probation 62-12-2], privy. were with its own. The offender to commit crime probation [1983]. for such the court that on I still a circuit imposition has or of its own case, ^[1988] does not re- imprisoned, As a matter court. it shall added) under the probation. frequent- provided and the Further- included I would affords period is set ap- Accordingly, judgment of the Circuit nothing in the record to indicate There is County Upshur Court of is affirmed in judge already did not con- the circuit part, syllabus and this case is remanded for recon- the factors enumerated sider *9 majority’s opinion. point sideration of accordance with of the addi- opinion. probably many are other facts principles set forth in this there service, Virginia, appropriate Community under the West where the conditions 9. if ical in circumstances, recently penitentiary held to in have been is an attractive alternative the state First, by key respects: this Court. Crain v. Borden carceration in two it obvi unconstitutional kircher, ously engaging 376 S.E.2d 140 involves in activities from Kessel, benefit; Rights: many secondly, aggra Prisoners’ Unconstitu it does not See also will Overcrowding, Ann.Surv. longstanding problem overcrowded vate the tional Prison (Nov.1987). prisons. especially crit This second reason is Am.L. 737 knowledge his circumstances knowledge. He this Court’s are not within STATE West witnesses, testimony of the includ- saw the defendant, demeanor their ing the opportunity to he had the credibility; and Charles W. BARLOW. responsibility the de- degree of discern the 18799. No. to know the senti- accepted and

fendant community jurisdiction in his ment of Supreme Appeals Court nothing The remand is than we. far better Virginia. to “Do it our loosely veiled directive but Supreme Court July it is time for the way,” and limits begin recognize respect places authority. on their the law repose Supreme laws do not

Our authority Appeals to substi- Court every its own for that tute every layer officer at judicial other long too has legal system. For quick classify any decision it been too disagrees of discretion. with as an abuse Judges are not automatons.

Circuit They great with a deal of au- vested possess tre-

thority and discretion and people’s power amount of over mendous people. They lives. are elected officials, Like most elected there are some wisdom, judicial greater ability, and they temperament than others. Whether act in accordance with our perception of

good judgment if vested with their we were question. responsibilities should not be they act question should be whether discretion thereun- the law and their within der. appellant

Lastly, much made made judge that the trial court has the fact drug offenders to deal with a commitment However, our soci- stringent in a manner. moving growing realization ety is thought drugs, once that the casual use harmless, supports the human bolsters and large trade

destruction that people of wreaking in this nation. The County may philoso- have held this Upshur judge. phy they elected this circuit when empowered by law to He is the and, sentencing decision absent made this discretion, it should not be an abuse of appeal. disturbed on