Jonathan Means, by counsel Dwayne J. Adkins, appeals the
Circuit Court of Logan County's December 14, 2016, order
denying his Rule 35(b) motion for reduction of sentence. The
State, by counsel Gordon L. Mowen II, filed a response.
Petitioner filed a reply. On appeal, petitioner argues that
the circuit court abused its discretion in denying his Rule
35(b) motion and that his sentence is disproportionate to the
crime he committed.
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.
September 16, 2015, petitioner was indicted on one count of
first-degree robbery by the presenting of a firearm and one
count of felony destruction of property. Petitioner entered
into a plea agreement with the State whereby he agreed to
plead guilty to first-degree robbery with no finding of the
use of any firearm in exchange for the dismissal of the
felony destruction of property count. The State further
agreed to recommend a period of imprisonment of sixteen
December 29, 2015, petitioner was sentenced to thirty years
of incarceration in the penitentiary. Shortly thereafter, he
filed a "Motion for Reconsideration" pursuant to
Rule 35(b) of the West Virginia Rules of Criminal Procedure.
Petitioner urged the circuit court to impose the sixteen-year
sentence recommended by the State and informed the court of
new information related to petitioner's substance abuse
treatment. Petitioner filed a supplement to his motion
setting forth policy reasons for reducing his sentence, and
then filed a second supplement setting forth specific drug
treatment, work, and restitution plans. The motion was set
for hearing but was continued several times. Ultimately,
without holding a hearing, the circuit court denied
petitioner's motion on December 14, 2016, after
consideration of "the magnitude of the offense[, ]"
"the victim's impact statement[, ]" and
"other matters surrounding this situation[.]" It is
from this order that petitioner appeals.
appeal, petitioner first argues that the circuit court abused
its discretion in denying his Rule 35(b) motion after
considering "other matters surrounding this
situation" and without holding a hearing. Petitioner
argues that the "denial order references unknown and
undefined matters[, ]" which prevents meaningful
appellate review. Petitioner further argues that the circuit
court should have held a hearing on his motion.
Petitioner's second assignment of error is that his
sentence is disproportionate to his crime.
previously established the following standard of review
regarding orders that deny Rule 35 motions:
"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).
begin, petitioner's arguments concerning the
proportionality of his sentence are outside the scope of
appeal of a ruling on a Rule 35(b) motion. In
Marcum, we held that "Rule 35(b) is not a
mechanism by which defendants may challenge their convictions
and/or the validity of their sentencing." 238 W.Va. at
--, 792 S.E.2d at 38, Syl. Pt. 2, in part. Rule 35(b) may not
be used to challenge the validity of a sentence,
"whether raised in the Rule 35(b) motion or in the
appeal of the denial of the Rule 35(b) motion." 238
W.Va. at --, 792 S.E.2d at 42. Instead, "challenges to
convictions or the validity of sentences should be made
through a timely, direct criminal appeal before this Court
will have jurisdiction to consider the matter."
Id. Because petitioner's assignment of error
challenging his sentence exceeds the scope of a Rule 35(b)
motion, it is not properly before the Court.
respect to petitioner's claim that the circuit court
abused its discretion by considering "other matters
surrounding this situation[, ]" we note "skeletal
arguments" that are nothing more than assertions do not
preserve claims. State v. Myers, 229 W.Va. 238, 246,
728 S.E.2d 122, 130 (2012).
An appellant must carry the burden of showing error in the
judgment of which he complains. This Court will not reverse
the judgment of a trial court unless error affirmatively
appears from the record. Error will not be presumed, all
presumptions being in favor of the correctness of the
Id. at 241, 728 S.E.2d at 125, Syl. Pt. 4, in part
(internal quotations and citations omitted). Petitioner does
nothing more than assert that the trial court may have
considered some impermissible factor in denying his Rule
35(b) motion. Because error will not be presumed, and because
the circuit court outlined the reasons for its denial, we
find that the circuit court did not abuse its discretion in
denying petitioner's motion.
petitioner argues that the circuit court's scheduling of
a hearing and continuing of that hearing created an
expectation that a hearing would be held and that, under
these circumstances, to issue a ruling without conducting a
hearing amounts to error. But petitioner cites no authority
to support this argument. Because petitioner has ...