Reaffirming the Non‑Reviewability of Statutorily Compliant Sentences and Appellate Briefing Standards: Commentary on State v. Dustin Scott Gibson

I. Introduction

The memorandum decision in State of West Virginia v. Dustin Scott Gibson, No. 23‑556 (Nov. 25, 2025), issued by the Supreme Court of Appeals of West Virginia, offers a compact but significant reaffirmation of several entrenched principles of West Virginia criminal appellate practice:

The extremely limited scope of appellate review over sentences that are within statutory limits and not based on impermissible factors.
The narrow reach of constitutional proportionality review in non‑recidivist, fixed‑maximum sentencing regimes.
The requirement that even self‑represented (pro se) criminal appellants must comply with West Virginia Rule of Appellate Procedure 10(c)(7).
The practical necessity of litigating ineffective assistance of counsel claims in post‑conviction habeas corpus proceedings rather than on direct appeal.

The case arose out of a domestic dispute that escalated into gunfire during construction work at a Roane County residence. After an argument with his brother, Dustin Scott Gibson retrieved a shotgun that discharged, striking his brother and damaging a nearby porch. A grand jury indicted Gibson on multiple firearm‑ and violence‑related offenses. Ultimately, Gibson entered guilty pleas to:

One count of wanton endangerment involving a firearm, in violation of W. Va. Code § 61‑7‑12;
One count of possession of a firearm by a prohibited person, in violation of W. Va. Code § 61‑7‑7(b).

The circuit court sentenced him to:

Five years’ incarceration for wanton endangerment; and
Five years’ incarceration for possession of a firearm by a prohibited person,

with the sentences ordered to run consecutively (for an effective term of ten years).

On appeal, Gibson, through counsel and with a supplemental pro se brief, argued that:

The sentences were disproportionate and “particularly harsh,” especially given the alleged absence of a victim statement.
He received ineffective assistance of counsel in the underlying proceedings.

The Supreme Court disposed of these challenges via memorandum decision under Rule 21(c), determining that there was no substantial question of law and no prejudicial error, and affirming the circuit court’s sentencing order.

II. Summary of the Memorandum Decision

The Court’s holding is straightforward:

The circuit court did not abuse its discretion in sentencing Gibson to two consecutive five‑year terms because each sentence was within the statutory limits set by W. Va. Code § 61‑7‑12 and W. Va. Code § 61‑7‑7(b)(2).
Under State v. Goodnight, sentences within statutory limits and not based on impermissible factors are not subject to appellate review; Gibson did not allege that any impermissible factor (such as race, sex, or socioeconomic status) influenced the sentencing.
Gibson’s disproportionality argument fails under Wanstreet v. Bordenkircher, which limits robust constitutional proportionality review primarily to sentences lacking a fixed maximum or to life recidivist sentences. His sentences were for fixed‑maximum, non‑recidivist offenses.
The claim that the absence of a victim statement rendered the sentence harsh was rejected without reaching the merits because the argument was inadequately briefed in violation of W. Va. R. App. P. 10(c)(7), despite liberal construction for pro se litigants.
The Court declined to address Gibson’s ineffective assistance of counsel claim because the record was not sufficiently developed, in line with State v. Triplett’s direction that such claims ordinarily be brought in habeas corpus proceedings.

Accordingly, the Court affirmed the sentencing order in all respects.

III. Detailed Analysis

A. Appellate Review of Sentencing: Standards and Limits

1. Abuse of discretion and threshold framework: State v. Lucas

The Court begins its legal analysis by reiterating the standard of review for sentencing orders, citing syllabus point 1 of State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997):

“[S]entencing orders . . . [are reviewed] under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands.”

This sets up a two‑layered review:

Primary lens – Abuse of discretion. The circuit judge has broad authority to select a sentence within the statutory range. The appellate court will not substitute its judgment merely because it might have chosen a different sentence.
Exception – Statutory or constitutional violations. If a sentence exceeds statutory limits or violates constitutional protections (for example, disproportionate punishment or denial of equal protection), the deferential posture yields to more searching review.

In Gibson’s case, there was no allegation that the sentences exceeded statutory bounds; instead, Gibson characterized them as “harsh” and “disproportionate.” That pushed the dispute squarely into the domain of the longstanding West Virginia rule on non‑reviewability of compliant sentences.

2. The Goodnight Rule: Non‑reviewability of statutorily compliant sentences

The decision leans heavily on syllabus point 4 of State v. Goodnight, 169 W. Va. 366, 287 S.E.2d 504 (1982):

“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.”

This “Goodnight rule” is one of the central pillars of West Virginia sentencing jurisprudence. It effectively collapses the standard of review for most sentencing appeals:

If the sentence is within the statutory range; and
No impermissible factor is shown to have influenced the sentence,

then the appellate court will not review the length of the sentence at all. It is not simply that the appellate court will affirm unless the sentence is clearly unreasonable; rather, the court declares that such sentences are not reviewable.

Gibson’s case fits this template:

Wanton endangerment sentence: W. Va. Code § 61‑7‑12 provides that a person convicted “shall be confined in the penitentiary for a definite term of years of not less than one year nor more than five years.” The circuit court imposed five years—at the statutory maximum but clearly within the allowable range.
Possession of a firearm by a prohibited person sentence: W. Va. Code § 61‑7‑7(b)(2) provides that a person convicted under this subsection “shall be confined in a state correctional facility for not more than five years.” Again, the circuit court imposed five years, within the statutory maximum.
Consecutive structure: West Virginia sentencing statutes and case law leave the choice between concurrent and consecutive sentencing largely to the trial judge’s discretion, absent a specific statutory directive. No such directive is identified in the opinion, and Gibson did not argue that consecutive sentencing was legally unavailable.

The Court then notes that Gibson “fails to allege that the circuit court based its sentencing decision on any impermissible factor,” meaning he did not claim, for example, that:

Racial animus;
Gender bias;
Religious or ethnic prejudice; or
Socioeconomic discrimination

influenced his sentence. The opinion cites State v. Moles, No. 18‑0903, 2019 WL 5092415 (W. Va. Oct. 11, 2019) (memorandum decision) as describing impermissible factors such as “race, sex, national origin, creed, religion, and socioeconomic status.”

Because no such factor was alleged, the Court invokes Goodnight to hold that the sentence is not subject to appellate review. In other words, Gibson’s claim that the sentence was “particularly harsh” is effectively treated as legally irrelevant so long as:

The statutory ranges were respected; and
No prohibited discriminatory motive was involved.

3. Constitutional proportionality and the Wanstreet limitation

Gibson attempted to frame his challenge as a proportionality argument. The Court rejects that contention by invoking syllabus point 4 of Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981):

“While 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 sentence.”

The key takeaways from Wanstreet as applied here are:

Proportionality review is theoretically universal but practically selective. In theory, any sentence could be evaluated under constitutional proportionality principles (e.g., West Virginia’s constitutional ban on cruel and unusual punishment). In practice, the Court has focused heightened scrutiny on a narrow band of cases—especially life sentences under recidivist (habitual offender) statutes or sentences without an upper statutory limit.
Fixed‑maximum, non‑recidivist sentences are generally insulated. Because Gibson’s sentences fell under statutes with clear maximum penalties (five years under § 61‑7‑12 and five years under § 61‑7‑7(b)(2)), and did not involve a recidivist enhancement, Wanstreet’s robust proportionality analysis is not triggered.

The Court succinctly concludes that, since Gibson’s case involves fixed‑maximum penalties and no recidivist sentencing, his disproportionality challenge fails. This reinforces a practical rule:

In West Virginia, non‑recidivist sentences that adhere to statutory maxima are functionally shielded from proportionality review.

Consequently, a defendant like Gibson cannot successfully argue that a maximum, consecutive sentence is “too harsh” or “disproportionate” unless he can link that argument to:

A challenge to the constitutionality of the statute itself (facial or as‑applied); or
A documented impermissible sentencing factor (discrimination, vindictiveness, etc.).

B. The Victim‑Statement Argument and Rule 10(c)(7): Adequacy of Appellate Briefing

1. The undeveloped “no victim statement” claim

Gibson (apparently in his pro se supplemental brief) asserted that his sentences were especially harsh “considering that there was no victim statement.” The Court does not identify any statutory or constitutional principle that would require a victim statement as a precondition to imposing a lawful sentence. Instead, it disposes of the argument on procedural grounds.

The Court characterizes this part of Gibson’s supplemental brief as:

“Comprised of one sentence,”
“devoid of any factual background,”
lacking “citation to the record,” and
without “legal analysis to support it.”

The Court holds that this falls well short of the requirements of Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure.

2. Rule 10(c)(7) and its enforcement against pro se litigants

Rule 10(c)(7) governs the “Argument” section of an appellate brief. Quoted in the decision, the Rule provides that:

“The brief must contain an argument clearly exhibiting the points of fact and law presented, the standard of review applicable, and citing the authorities relied on, under headings that correspond with the assignments of error. The argument must contain appropriate and specific citations to the record on appeal, including citations that pinpoint when and how the issues in the assignments of error were presented to the lower tribunal. The Intermediate Court and the Supreme Court may disregard errors that are not adequately supported by specific references to the record on appeal.”

Two key points follow:

An appellate court is not required to “research, construct, and flesh out” arguments for a party. Parties must do the work of explaining the legal basis for claimed errors, including how and where those issues were raised below.
Inadequately briefed issues may be disregarded entirely. The Rule explicitly authorizes the Court to ignore errors that lack specific record citations and developed argument.

The Court then cites State v. Suttle, No. 20‑0975, 2022 WL 293397 (W. Va. Feb. 1, 2022) (memorandum decision), which held that even when “leniently reviewing” filings by self‑represented litigants, Rule 10(c)(7) still applies. In other words:

Pro se status does not exempt a litigant from basic appellate briefing requirements.

Applying these principles, the Court holds that because Gibson’s victim‑statement argument lacked factual development, record citations, legal authorities, or a stated standard of review, it does not meet Rule 10(c)(7)’s requirements. As a result, the Court declares itself “unable to address the merits of this issue.”

Practically, this operates as a waiver or abandonment: an issue raised in name only, without substantive argument and record support, will not be considered on appeal, even in a criminal case and even when raised by a pro se defendant.

C. Ineffective Assistance of Counsel: The Preference for Habeas Proceedings

1. The Court’s refusal to reach ineffective assistance on direct appeal

Gibson also alleged ineffective assistance of counsel “during his underlying criminal proceedings.” The Court disposes of this assignment of error with a brief but significant observation:

“Because we do not have a fully developed record on this point, we decline to address this issue.”

The Court cites syllabus point 10 of State v. Triplett, 187 W. Va. 760, 421 S.E.2d 511 (1992):

“It is the extremely rare case when this Court will find ineffective assistance of counsel when such a charge is raised as an assignment of error on a direct appeal. The prudent defense counsel first develops the record regarding ineffective assistance of counsel in a habeas corpus proceeding before the lower court, and may then appeal if such relief is denied. This Court may then have a fully developed record on this issue upon which to more thoroughly review an ineffective assistance of counsel claim.”

2. Why ineffective assistance claims normally require habeas corpus

Ineffective assistance claims (typically governed by the two‑pronged standard of deficient performance and prejudice) often require factual determinations that cannot be made on a cold appellate record. For example:

Why did counsel choose a particular strategy?
What advice did counsel give the defendant about a plea offer?
What evidence was available but not presented, and why?

These questions commonly require:

Testimony from trial counsel;
Affidavits or testimony from additional witnesses;
Documentary evidence that was not part of the trial record.

Direct appeals are generally confined to the existing record. Habeas corpus proceedings, by contrast, permit evidentiary development and fact‑finding. Accordingly, Triplett and its progeny strongly prefer that ineffective assistance claims be:

First litigated in a habeas corpus petition before the circuit court, where the record can be developed; and
Then (if necessary) appealed, with a fully formed factual record for review.

Gibson’s case adheres to this template: the Court finds the record insufficient and declines to entertain his ineffective assistance claim. This leaves the door open for a future habeas corpus petition, but forecloses any immediate remedy on direct appeal.

IV. Key Legal Concepts Explained

1. Abuse of discretion

An “abuse of discretion” occurs when a trial court’s decision:

Is based on a clearly erroneous factual finding;
Misapplies or fails to apply controlling law; or
Is so arbitrary and unreasonable that it cannot be justified under the circumstances.

However, under the Goodnight framework, when a sentence is within statutory limits and free from impermissible factors, the appellate court usually will not even reach abuse‑of‑discretion analysis—it treats the sentence as non‑reviewable altogether.

2. Statutory maximums and consecutive sentencing

A “statutory maximum” is the highest term of imprisonment authorized by statute for a given offense. In Gibson’s case:

Wanton endangerment: 1 to 5 years.
Possession of a firearm by a prohibited person: up to 5 years.

When a defendant is convicted (or pleads guilty) to multiple offenses, a sentencing court may often choose whether sentences will:

Run concurrently (at the same time); or
Run consecutively (one after the other).

Unless a statute or case law requires concurrent sentences, the decision is generally left to the trial court’s discretion. The fact that sentences are consecutive, thereby increasing total time in prison, does not itself render the sentence illegal or disproportionate if each component sentence is within statutory bounds.

3. Constitutional proportionality review

“Proportionality” refers to the constitutional principle that punishment must not be grossly disproportionate to the offense. In West Virginia, this is rooted in state constitutional provisions parallel to the Eighth Amendment’s prohibition on cruel and unusual punishment.

However, as Wanstreet teaches, the Court reserves its most stringent proportionality review for:

Life sentences under recidivist (habitual offender) statutes; or
Other sentences with no fixed statutory maximum.

By contrast, non‑recidivist sentences that fall within a statute’s fixed maximum are rarely disturbed on proportionality grounds, as Gibson’s case demonstrates.

4. Impermissible sentencing factors

An “impermissible factor” is a consideration that violates constitutional equality or due process principles, such as:

Race;
Sex;
National origin;
Creed or religion;
Socioeconomic status.

If a sentence is shown to have been influenced by such a factor, it may be unconstitutional even if the length of the sentence is within statutory limits. Gibson did not allege any such bias, and the Court emphasizes this absence in applying Goodnight.

5. Memorandum decisions under Rule 21(c)

The Court issued this opinion as a “memorandum decision” pursuant to W. Va. R. App. P. 21(c), which is appropriate when:

There is no substantial question of law; and
There is no prejudicial error.

Memorandum decisions are typically shorter and may have limited precedential weight, but they still reveal how the Court applies existing doctrine to routine fact patterns and can be persuasive in similar future cases.

6. Rule 10(c)(7) and appellate briefing

Rule 10(c)(7) requires each assignment of error in an appellate brief to be supported by:

Clear articulation of factual and legal points;
The applicable standard of review;
Authorities (cases, statutes, rules) relied upon; and
Specific citations to the record showing when and how the issue was raised below.

Failure to meet these requirements can result in the Court simply disregarding the alleged error, as occurred with Gibson’s victim‑statement argument.

7. Pro se litigants and “lenient” review

While courts often read pro se filings more liberally (not requiring technical perfection), pro se litigants are still bound by basic procedural rules. They must:

Identify specific errors;
Provide record citations;
Offer some legal reasoning or authority.

State v. Suttle and Gibson’s case make clear that Rule 10(c)(7) is not suspended for self‑represented appellants.

8. Ineffective assistance of counsel and habeas corpus

Ineffective assistance claims are usually evaluated under a two‑part framework (deficient performance plus prejudice). However, because such claims frequently require fact‑finding and attorney testimony, they are ordinarily litigated in:

Post‑conviction habeas corpus proceedings in the circuit court, where evidence can be taken and factual disputes resolved.

Direct appeals are generally inadequate for this purpose because:

The trial record rarely explains counsel’s strategic choices or advice to the defendant.

Triplett and the Gibson decision reaffirm that it is “extremely rare” for the Supreme Court to resolve ineffective assistance claims on a direct appeal without a developed record.

V. Impact and Future Implications

1. Sentencing appeals: A reaffirmation of narrow review

Gibson’s case is a textbook application of the Goodnight and Wanstreet doctrines. Its practical import is to remind defense counsel and defendants that:

Challenging a sentence as simply “harsh” or “excessive” will almost never succeed if the sentence is within statutory bounds and there is no showing of impermissible motive.
Consecutive maximum sentences for multiple offenses, while severe, are generally immune from appellate attack absent a constitutional defect or discriminatory factor.

For trial courts, the decision confirms their broad discretion to impose maximum, consecutive terms in firearm‑related and violent offenses without fear of reversal, provided they stay within statutory limits and avoid impermissible considerations.

2. Pro se litigants and the importance of proper briefing

By enforcing Rule 10(c)(7) against Gibson’s undeveloped victim‑statement argument, the Court sends a cautionary signal:

Self‑represented appellants cannot rely on bare assertions or single‑sentence complaints to secure appellate review.
Failure to supply record citations and legal analysis can result in the Court simply refusing to consider the issue.

This encourages more disciplined appellate practice, even among those without counsel, and protects judicial resources from having to address ill‑formed or speculative claims.

3. Ineffective assistance claims: channeling into habeas

By declining to reach the ineffective assistance assignment, the Court reinforces the procedural path for such claims:

Direct appeal is rarely the proper vehicle.
Habeas corpus is the usual and “prudent” forum for development and adjudication of ineffective assistance allegations.

Future defendants raising similar claims on direct appeal can expect a similar response unless the record unmistakably documents counsel’s errors and resulting prejudice (which is uncommon).

VI. Conclusion

State v. Dustin Scott Gibson does not break new doctrinal ground, but it crystallizes and re‑applies several core principles of West Virginia criminal appellate law:

Sentences that fall within statutory limits and are not infected by impermissible factors are effectively insulated from appellate review under State v. Goodnight.
Robust constitutional proportionality review, under Wanstreet v. Bordenkircher, is largely confined to life recidivist or open‑ended sentencing schemes, not to fixed‑maximum, non‑recidivist terms like Gibson’s.
Rule 10(c)(7)’s requirements for fully developed argument, record citations, and legal authority apply equally to represented and pro se appellants; inadequately briefed issues will not be addressed on the merits.
Ineffective assistance of counsel claims are presumptively reserved for habeas corpus proceedings, where a factual record can be properly developed, in line with State v. Triplett.

In combination, these holdings underscore a central lesson: in West Virginia, successful appellate challenges to criminal sentences and trial counsel performance require both substantive legal bases and rigorous adherence to procedural rules. Gibson stands as a concise but potent reminder that, absent such foundations, even severe sentences will be affirmed.