State ex rel. Appleby v. Recht
In State ex rel. Appleby v. Recht, 213 W. Va. 503, 583 S.E.2d 800 (2002) the appellant challenged the recidivist statute claiming that "in some instances this Court has affirmed recidivist sentences for some defendants, but has reversed the recidivist sentences for others, even though these defendants were convicted of the same offenses or had the same predicate felonies."
The Court explained that even assuming the accuracy of such an assertion that West Virginia's sentencing scheme might indeed permit another defendant guilty of the same crime to receive a lesser sentence .... that is no reason for altering his punishment or declaring the law unconstitutional. Judicial discretion naturally leads to discrepancies in sentencing, as he complains.
But even wide sentencing discretion in the abstract is not a violation of due process or equal protection. The issue is the appropriateness of the sentence given the defendant's crime:
'Discretion, even if it ends in grossly unequal treatment according to culpability, does not entitle a guilty defendant to avoid a sentence appropriate to his own crime.'
(Recht, 213 W.Va. at 519, 583 S.E.2d at 816.)