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 ...