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State v. Martin R.

Supreme Court of West Virginia

November 3, 2017

State of West Virginia, Plaintiff Below, Respondent
v.
Martin R., Defendant Below, Petitioner

         Wood County 10-F-58

          MEMORANDUM DECISION

         Petitioner Martin R., [1] pro se, appeals the September 26, 2016, order of the Circuit Court of Wood County denying (1) his motion for reduction of sentence pursuant to Rule 35(b) of the West Virginia Rules of Criminal Procedure; and (2) his motion for appointment of counsel and an evidentiary hearing. Respondent State of West Virginia ("the State"), by counsel Robert L. Hogan, filed a summary response in support of the circuit court's order. Petitioner filed a reply.

         The 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, the 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.

         On July 30, 2010, petitioner pled guilty to two counts of sexual abuse by a parent and one count of first-degree sexual abuse. The victim was petitioner's minor daughter, who was between five and seven years old at the time of the offenses.[2] At the plea hearing, petitioner stated that he was pleading guilty because he did not "want [his] little girl to come back to [c]ourt no more." The State likewise proffered that, though the victim was ready and able to testify if necessary, a plea bargain was not only in the public interest, but also "in the best interest of the juvenile female victim." Accordingly, petitioner asked the circuit court to accept a plea agreement, whereby he would plead guilty to three counts of a thirteen-count indictment and the State would dismiss the remaining charges.[3] The circuit court accepted the plea agreement and petitioner's guilty pleas, finding that he pled guilty "voluntarily, intelligently, and knowingly."

         At an October 12, 2010, sentencing hearing, petitioner sought alternative sentencing in the form of home incarceration or probation. However, the victim's mother made a statement in opposition to petitioner's request for probation.[4] The victim's mother explained that there would be a possibility of a chance meeting with petitioner at locations such as Wal-Mart and the grocery store and the victim "would have to re-live seeing his face and what happened to her again." The victim's mother noted that the victim was in counseling and suffered the effects of abuse such as nightmares and bedwetting. The victim's mother concluded her statement by stating that "the maximum sentence should be imposed."

         At the hearing's conclusion, the circuit court denied petitioner's request for alternative sentencing, finding that it was "in the best interest of the community and the State to deny any probation or other forms of alternative sentencing." Accordingly, the circuit court sentenced petitioner to ten to twenty years of incarceration for each count of sexual abuse by a parent and five to twenty-five years of incarceration for one count first-degree sexual abuse and ordered that petitioner serve his sentences consecutively.

         By order entered May 15, 2015, the circuit court resentenced petitioner for purposes of appeal. In State v. Martin R. ("Martin R. I"), No. 15-0580, 2016 WL 1456077, at *1 (W.Va. April 12, 2016) (memorandum decision), this Court affirmed petitioner's convictions and sentences, finding that petitioner provided the factual basis for his guilty pleas at the plea hearing by testifying that "[he] had sexual intercourse or incest-or contact with the victim."

         Following this Court's denial of a petition for a rehearing on June 2, 2016, petitioner filed a motion for reduction of sentence in the circuit court, pursuant to Rule 35(b) of the West Virginia Rules of Criminal Procedure, on September 16, 2016.[5] In his motion, petitioner asserted that the victim is willing to testify in court and recant her allegations of abuse. Petitioner attached exhibits showing the completion of several classes during his incarceration.[6] Petitioner also filed a motion for appointment of counsel and an evidentiary hearing. By order entered on September 26, 2016, the circuit court denied petitioner's motions based on its "consideration" of them.

         Petitioner appeals from the circuit court's September 26, 2016, order denying his Rule 35(b) motion for reduction of sentence. In syllabus point 1 of State v. Marcum, 238 W.Va. 26, 792 S.E.2d 37 (2016), we set forth the pertinent standard of review:

"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).

         In syllabus point 2 of Marcum, we held that that Rule 35(b) "only authorizes a reduction in sentence" and "is not a mechanism by which defendants may challenge their convictions and/or the validity of their sentencing." Id. at 27; 792 S.E.2d at 38.

         On appeal, petitioner contends that the circuit court (1) improperly denied his motion for appointment of counsel and an evidentiary hearing because the victim is willing to testify and recant her allegations of abuse; (2) failed to consider his efforts at rehabilitation during his incarceration; and (3) failed to make sufficient findings to allow meaningful appellate review of its denial of his Rule 35(b) motion. The State counters that the circuit court properly denied petitioner's Rule 35(b) motion and that the representations made in petitioner's Rule 35(b) motion are contradicted by his previous statements and/or testimony.

         First, we agree with the State and find that the plea and sentencing hearing transcripts not only contradict the representations made in petitioner's Rule 35(b) motion, but also show that his motion for appointment of counsel and an evidentiary hearing was without merit. See State v. King, 205 W.Va. 422, 425, 518 S.E.2d 663, 666 (1999) (finding that a hearing on a Rule 35(b) motion is not required where the record establishes that there were adequate hearings when the defendant pled guilty and when he was sentenced). Petitioner stated at the plea hearing that he wanted to spare the victim the ordeal of testifying in court and, once under oath, provided the factual basis for his guilty pleas by testifying that "[he] had sexual intercourse or incest-or contact with the victim." Martin R. I, 2016 WL 1456077, at *1. At the sentencing hearing, the victim's mother opposed petitioner's request for probation and gave a thorough explanation of the effect that the abuse was having on the victim. Therefore, given the adequacy of the plea and sentencing hearings, we find that the circuit court was able to decide petitioner's Rule 35(b) motion without appointment of counsel or a hearing.

         We address petitioner's remaining two assignments of error together. In sum, petitioner asks for a remand for findings of fact and conclusions of law because we cannot meaningfully review whether the circuit court gave due "consideration" to his rehabilitation efforts while incarcerated. Petitioner points out that in State v Redman, 213 W.Va. 175, 178, 578 S.E.2d 369, 372 (2003) (per curiam), we found that a trial court's ruling pursuant to Rule 35(b) must contain sufficient findings of fact and conclusions of law to permit meaningful appellate review. However, rather than the lack of findings, we find that the crux of petitioner's complaint is that his motion for reduction of sentence was so well-supported ...


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