(Jackson County 16-F-6)
Michelle Eads, by counsel Kevin B. Postalwait, appeals the
Circuit Court of Jackson County's February 27, 2017,
order denying her Rule 35(b) motion for reduction of
sentence. The State, by counsel Shannon Frederick Kiser,
filed a response. On appeal, petitioner argues that the
circuit court abused its discretion in denying her Rule 35(b)
motion for reduction of sentence.
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 23, 2016, petitioner was indicted for one count of
daytime burglary, one count of grand larceny, and one count
of conspiracy. Petitioner entered into a plea agreement with
the State whereby she agreed to plead guilty to one count of
conspiracy and testify against a co-defendant in exchange for
the dismissal of the remaining counts. Following the entry of
her guilty plea, petitioner underwent a presentence
diagnostic evaluation which indicated that she had a high
risk level of recidivism.
November 10, 2016, petitioner was sentenced to one to five
years of incarceration, with credit for twenty-two days for
time served. The circuit court further ordered petitioner to
pay restitution to the victims, joint and several with her
co-defendant, in the amount of $2, 200.00.
Thereafter, she 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 alternative sentence of home
incarceration recommended by the State. Petitioner informed
the circuit court that she recently spent her first
Thanksgiving and Christmas holidays away from her children,
which had a "huge impact" on her, and that she did
not want to miss those family moments in the future.
Ultimately, without holding a hearing, the circuit court
denied petitioner's motion on February 27, 2017, after
consideration of petitioner's motion, the record, the
presentence diagnostic evaluation, and the statements of
counsel. It is from this order that petitioner appeals.
appeal, petitioner argues that the circuit court abused its
discretion in denying her Rule 35(b) motion without holding a
hearing. Petitioner argues that at the time the
circuit court denied her motion for reconsideration, she had
been incarcerated for four months, which she contends
established a change in circumstances sufficient to warrant a
hearing upon the motion.
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).
Marcum, 238 W.Va. at 27, 792 S.E.2d at 38, Syl. Pt.
petitioner argues that the circuit court abused its
discretion by denying her Rule 35(b) motion without first
holding a hearing, she cites to no authority supporting her
argument. 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). Indeed,
[a]n 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). In her brief on
appeal, petitioner simply asserts that the circuit court
erred in denying her Rule 35(b) motion without first holding
a hearing when she had continuously served her sentence for
four months, demonstrating a change in circumstances
sufficient to warrant a hearing. Given that petitioner cites
to no law regarding her alleged error and that the circuit
court set forth the reasons for its denial, we will not
presume error and find that the circuit court did not abuse
its discretion in denying petitioner's motion.
foregoing reasons, the circuit court's February 27, 2017,
order denying petitioner's Rule ...