Raymond Richardson, pro se, appeals the Circuit Court of
Kanawha County's July 7, 2017, order denying his motion
to correct his sentence pursuant to Rule 35(a) of the West
Virginia Rules of Criminal Procedure. The State, by counsel
Shannon Frederick Kiser, filed a response. On appeal, the
petitioner argues that the circuit court erred in failing to
render specific findings of fact or conclusions of law. The
petitioner also argues that the circuit court erred in
failing to hold a hearing in this matter. Finally, the
petitioner argues that the language contained in the portion
of the indictment charging him with first degree robbery is
legally insufficient to support a conviction of first degree
robbery, thereby rendering the sentence imposed with respect
to his conviction for first degree robbery illegal.
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.
the early morning hours of August 24, 2013, the petitioner
attacked the sixty-one-year-old victim in her home. The
petitioner was in the victim's home for the purpose of
selling her cocaine. Following an argument regarding the
quality and price of the cocaine, the petitioner punched the
victim in the face and stole $103 in cash from the
victim. The petitioner was found guilty of the
following three felony offenses after a jury trial: first
degree robbery, assault during the commission of a felony,
and possession with intent to deliver cocaine .
sentencing, the prosecution offered that the petitioner could
have been charged as a three-time offender under the
recidivist statute, given his prior kidnapping and unlawful
wounding convictions. The State noted his propensity for
violence and lack of employment, and further argued that a
one-hundred-year sentence was not disproportionate, citing
numerous cases. After taking note of the petitioner's
prior criminal history, the petitioner was sentenced to a
term of one hundred years for robbery, an indeterminate term
of two to ten years for assault during the commission of a
felony, and an indeterminate term of one to fifteen years for
possession with intent to deliver. The sentences were ordered
to be served consecutively.
petitioner appealed his conviction and sentence, and on
September 16, 2016, this Court affirmed the circuit
court's decision. Following this Court's decision, the
petitioner filed a motion pursuant to Rule 35(a) of the West
Virginia Rules of Criminal Procedure, which the circuit court
denied on July 7, 2017. This appeal follows.
petitioner asserts two specific assignments of error on
appeal. He first argues that the circuit court erred in
denying his Rule 35(a) motion without making any findings of
fact or conclusions of law. The petitioner next argues that
the circuit court erred in denying his motion without having
a hearing in this matter. He also generally argues that the
language contained in the indictment for first degree robbery
is insufficient and, in actuality, is only sufficient to
support a conviction for second degree robbery. The
petitioner therefore asserts that the sentence of one hundred
years imprisonment imposed for the first degree robbery
conviction is illegal.
State asserts that the petitioner's Rule 35(a) motion
constitutes an improper request for relief, because it
challenges his conviction rather than his sentence. It
further asserts that the circuit court properly determined
that the petitioner's motion is without merit because the
motion itself is an improper request for relief.
35(a) of the West Virginia Rules of Criminal Procedure
provides for the correction of an illegal sentence. We have
previously stated that Rule 35 of the West Virginia Rules of
Criminal Procedure "does not explicitly require findings
of fact and conclusions of law." See State v.
Redman, 213 W.Va. 175, 178, 578 S.E.2d 369, 372 (2003).
Moreover, we have previously found that, when new facts have
not transpired, "it stands to reason that there would be
no additional findings of fact or legal rulings required,
other than the granting or denial of the Rule 35 motion
itself." Id. at 180, 373. We have also held
that "under Rule 35(a) of the West Virginia Rules of
Criminal Procedure, a trial court has discretion to correct
the sentence without holding a de novo resentencing
hearing." See State v. Tex B.S., 236 W.Va. 261,
268, 778 S.E.2d 710, 717 (2015).
instant case, the petitioner has failed to provide any
evidence indicating that additional facts have transpired
following the sentencing hearing. In fact, the crux of his
argument is that the indictment itself, which was clearly
entered well before the sentencing hearing, was insufficient
to support a conviction of first degree robbery. It is
therefore clear that there were no additional findings of
fact for the circuit court to make. Likewise, the circuit
court's ruling on the motion itself was the only legal
finding necessary under the present circumstances.
Furthermore, pursuant to our decision in State v. Tex
B.S., the circuit court was not required to hold a
hearing in this matter.
turn to the petitioner's assertion that the indictment is
insufficient to support a conviction for first degree
robbery, thereby rendering his sentence for the first degree
robbery conviction illegal. A motion filed pursuant to Rule
35(a) of the West Virginia Rules of Criminal Procedure is not
the appropriate mechanism for challenging the sufficiency of
an underlying indictment; such a challenge is most
appropriately addressed via a petition for a writ of habeas
corpus. See generally Ballard v. Dilworth, 230 W.Va.
449, 739 S.E.2d 643 (2013). Furthermore, the petitioner
appealed his conviction and sentence. This Court affirmed the
circuit court's order sentencing the petitioner to a term
of one hundred years for the robbery conviction, an
indeterminate term of two to ten years for the conviction of
assault during the commission of a felony, and an
indeterminate term of one to fifteen years for the conviction
of possession with intent to deliver.
foregoing reasons, we find no error in the decision of the
Circuit Court of Kanawha County and affirm the July 7, 2017,
order denying petitioner's motion for a correction of
sentence pursuant to Rule 35(a) of the West Virginia Rules of
CONCURRED IN BY: Justice Robin J. Davis Justice Menis E.
Ketchum Justice Allen H. Loughry ...