John Patrick Maudlin, by counsel Michele Rusen, appeals the
Circuit Court of Wood County's April 29, 2016, order
denying his Rule 35(b) motion for reduction of sentence. The
State, by counsel Shannon Frederick Kiser, filed a response.
Petitioner filed a reply. On appeal, petitioner argues that
the circuit court abused its discretion in denying his motion
for reduction of sentence because he should have been
entitled to alternative sentencing.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
this Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
February of 2016, petitioner pled guilty to one count of
false pretense pursuant to a plea agreement with the State.
At the time, petitioner was undergoing chemotherapy treatment
for cancer. At the plea hearing, petitioner requested that
the home incarceration condition of his bond be removed so
that he could obtain medical treatment in the State of Ohio.
The circuit court granted this request and set the matter for
April of 2016, the circuit court held a sentencing hearing.
Pursuant to the plea agreement, the State made a non-binding
recommendation that the circuit court grant petitioner either
probation or home incarceration. During the hearing, the
circuit court found that petitioner's presentence
investigation report included an extensive criminal history
dating back to approximately 2000. Petitioner's many
convictions included crimes such as the unauthorized practice
of medicine, petit larceny, false pretense, being a fugitive
from justice, federal mail fraud, possession of a controlled
substance, obstruction of justice, and domestic battery. The
circuit court also found that the presentence investigation
report listed petitioner as being in the medium range for
both a pro-criminal attitude and an anti-social pattern, as
evidenced by his "support of crime" and "his
pattern of generalized trouble." Petitioner then argued
for alternative sentencing because of his lack of a violent
criminal history and his recent enrollment in college. The
circuit court, however, denied petitioner's request and
imposed a term of incarceration of one to ten years. The
circuit court entered the sentencing order on April 11, 2016.
Thereafter, the circuit court entered two orders temporarily
staying petitioner's sentence due to his admission to the
April 20, 2016, petitioner filed a motion for reconsideration
of his sentence in which he again argued for imposition of
alternative sentencing. The circuit court denied this motion by
order entered on April 29, 2016. It is from this order that
We have previously established the following standard of
"In reviewing the findings of fact and conclusions of
law of a circuit court concerning an order on a motion made
under Rule 35 of the West Virginia Rules of Criminal
Procedure, we apply a three-pronged standard of review. We
review the decision on the Rule 35 motion under an abuse of
discretion standard; the underlying facts are reviewed under
a clearly erroneous standard; and questions of law and
interpretations of statutes and rules are subject to a de
novo review." Syl. Pt. 1, State v. Head,
198 W.Va. 298, 480 S.E.2d 507 (1996).
Syl. Pt. 1, State v. Marcum, 238 W.Va. 26, 792
S.E.2d 37 (2016). Upon our review, we find no error in the
entire argument in support of his appeal is that the circuit
court erred in denying his Rule 35(b) motion because he
should have been entitled to alternative sentencing.
According to petitioner, his lack of a violent criminal
history, recent enrollment in college, and medical condition
all entitled him to alternative sentencing and, accordingly,
the circuit court erred in denying his motion. We do not
agree. "'When considering West Virginia Rules of
Criminal Procedure 35(b) motions, circuit courts generally
should consider only those events that occur within the
120-day filing period . . . .' Syl. Pt. 5, State v.
Head, 198 W.Va. 298, 480 S.E.2d 507 (1996)."
Marcum, 238 W.Va. at --, 792 S.E.2d at 38, Syl. Pt.
3. In his motion for reduction of sentence, petitioner relied
upon the same arguments that he presented at the underlying
sentencing hearing. As such, petitioner provided the circuit
court with no new factual basis upon which to grant a
reduction in petitioner's sentence. Accordingly, we find
no abuse of discretion in the circuit court's denial of
petitioner's Rule 35(b) motion.
to the extent that petitioner argues that his underlying
sentence was improper, we note that "Rule 35(b) of the
West Virginia Rules of Criminal Procedure only authorizes a
reduction in sentence. Rule 35(b) is not a mechanism by which
defendants may challenge their convictions and/or the
validity of their sentencing." Id. at --, 792
S.E.2d at 38, Syl. Pt. 2. Simply put, petitioner is appealing
the circuit court's denial of his Rule 35(b) motion,
which precludes our review of the underlying sentence.
Accordingly, we decline to address petitioner's arguments
regarding the appropriateness of his underlying sentence.
foregoing reasons, the circuit court's April 29, 2016,
sentencing order is hereby affirmed.
CONCURRED Chief Justice Allen H. Loughry II Justice Robin
Jean Davis Justice Margaret L. Workman Justice Menis ...