Randolph County 14-F-9
Jared Michael Iseli, by counsel Kevin D. Mills and Shawn R.
McDermott, appeals the April 6, 2017, order of the Circuit
Court of Randolph County denying his motion for reduction of
sentence made pursuant to Rule 35(b) of the West Virginia
Rules of Criminal Procedure. Respondent State of West
Virginia, by counsel Robert L. Hogan, filed a response.
Petitioner filed a reply. On appeal, petitioner argues that
the circuit court (1) abused its discretion in denying his
motion for reduction of sentence without holding a hearing,
and (2) violated his due process rights by failing to
articulate sufficient findings of fact and conclusions of law
regarding the denial.
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.
February of 2014, petitioner was indicted on two counts of
first-degree sexual assault. Petitioner entered into a plea
agreement in November of 2014 and pled guilty to one count of
first-degree sexual assault. In exchange, the State dismissed
the remaining count of first-degree sexual assault. A
pre-sentence report was ordered prior to petitioner's
sentencing and filed on January 15, 2015.
moved to continue his sentencing hearing due to the untimely
filing of the pre-sentence report. In February of 2015,
petitioner filed several pages of corrections to the
pre-sentence report. He also introduced a letter from a
family counselor, a photograph of the victim to show that the
victim appeared older than her age, testimony from
petitioner's mother, and argument in support of
alternative sentencing. Additionally, petitioner addressed
the circuit court in support of alternative sentencing.
Petitioner was age twenty-one at the time of sentencing and
asserted that he qualified for a youthful offender program.
The State introduced testimony from the investigating
officer, played petitioner's prior recorded statement,
and argued in support of incarceration. Following the
hearing, the circuit court ordered that petitioner undergo a
sixty-day evaluation with the Division of Corrections focused
on whether he was a sexual predator. This report was
completed and disclosed in May of 2015. The report found that
petitioner did not exhibit signs of pedophilia or sexual
deviance and found that he had a low risk to reoffend.
of 2015, the circuit court held another sentencing hearing
with a different judge presiding. Petitioner introduced the
testimony of a second evaluator and further testimony of
petitioner's mother. The victim's father testified
that petitioner created a negative impact on his
daughter's life. Ultimately, the circuit court sentenced
petitioner to a term of incarceration for not less than
fifteen nor more than thirty-five years, with fifty years of
supervised release, and lifetime sex offender registration.
Petitioner appealed his sentence to this Court on the basis
that the circuit court considered an improper sentencing
factor, considered inaccurate information, failed to sentence
him to a youthful offender program, and committed cumulative
error. This Court affirmed the circuit court's ruling.
State v. Iseli, No. 15-0884, 2016 WL 4987262 (W.Va.
September 19, 2016) (memorandum decision).
then filed a Rule 35(b) motion for reduction of sentence
requesting placement in a youthful offender program. The
motion alleged that petitioner was the proper age for the
program, had good behavior during his incarceration, was
taking college courses, and maintained employment in the
institution. The motion further alleged some factors that may
have had a negative effect on petitioner's case, such as
the change of judges mid-sentencing, bias by the probation
officer who prepared the pre-sentence report, an improper
description of how petitioner's actions affected the
victim, and inaccurate testimony by the victim's father.
The State filed a response to petitioner's motion.
Ultimately, the circuit court denied the motion for a
reduction of sentence. In doing so, the circuit court found
that there was no new or additional information contained in
the file or in the motion for a reduction of sentence that
would cause the circuit court to reconsider the sentence
imposed. The circuit court further found that a lengthy
sentencing hearing was held during which the underlying facts
and circumstances were fully developed on the record.
Petitioner now appeals the circuit court's April 6, 2017,
order denying his Rule 35(b) motion for reduction of
Syllabus Point 1 of State v. Head, 198 W.Va. 298,
480 S.E.2d 507 (1996), we set forth the pertinent standard of
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.
explained in Head that the denial of a motion under
Rule 35 is generally "not reviewable" in a case in
which no abuse of discretion occurs. Id. at 301, 480
S.E.2d at 510.
appeal, petitioner contends that the circuit court abused its
discretion in not holding a hearing on his motion for
reduction of sentence. Petitioner argues that he presented
new evidence regarding the potential bias of the probation
officer, inaccurate testimony by the victim's father, and
prejudice through a change in judges We explained in
State v King, 205 W.Va. 422, 518 S.E.2d 663 (1999),
that a hearing on the Rule 35 motion was unnecessary where
"[t]he record establishes that the circuit court held
lengthy hearings when the appellant pled guilty and when he
was sentenced" King, 205 W.Va. at 425, 518
S.E.2d at 666; see Head, 198 W.Va. at 306, 480
S.E.2d at 515 (Cleckley, J, concurring) ("A Rule 35(b)
hearing is not, nor was it ever intended to be, a sentencing
hearing."). Further, we have held that a "Rule
35(b) motion is not a mechanism by which defendants may
challenge their convictions and/or the validity of their
sentencing." Syl. Pt. 2, in part, State v.
Marcum, 238 W.Va. 26, 792 S.E.2d 37 (2016). Also, Rule
35 of the West Virginia Rules of Criminal Procedure provides
that the motion may be made within 120 days after sentence is
imposed or after the entry of a mandate by this Court and
"circuit courts generally should consider only those
events that occur within the 120-day filing
period[.]"Head, 198 W.Va. at 299, 480 S.E.2d at
508, Syl. Pt. 5.
participation in certain services while incarcerated is the
only new event petitioner has identified. The other issues
petitioner raised in his motion below, such as testimony
produced at sentencing and errors in the pre-sentence report,
were events that occurred before the Rule 35(b) period began
and are subject to direct appeal. Additionally, we note that
the same judge who denied petitioner's Rule 35 motion
also held petitioner's sentencing hearing. Therefore, we
conclude that the circuit court did not abuse its discretion
in opting not to hold a hearing on petitioner's motion
for reduction of sentence.
further contends that the circuit court violated his due
process rights by failing to articulate sufficient findings
of fact and conclusions of law in its denial of his Rule
35(b) motion. See State v. Redman, 213 W.Va. 175,
178, 578 S.E.2d 369, 372 (2003) (indicating trial court's
ruling pursuant to Rule 35 must contain "requisite
findings of fact and conclusions of law to permit meaningful
appellate review") (internal quotations and citations
omitted). We note that the standard of review adopted in
Head is a continuation of "the deference we
have traditionally accorded trial courts in matters of
sentencing." Head, 198 W.Va. at 301, 480 S.E.2d
at 510; see Syl. Pt. 4, State v. Goodnight,
169 W.Va. 366, 287 S.E.2d 504 (1982) ("Sentences imposed
by the trial court, if within statutory limits and if not
based on some [im]permissible factor, are not subject to
appellate review."). As stated above, petitioner offered
very little information relevant to events which occurred
after sentencing. The circuit court reviewed "the motion
for reduction of sentence, the State's response thereto,
and the file in this case" and found that there was no
new or additional information that warranted reconsideration
of petitioner's sentence. These findings are sufficient
considering the lengthy sentencing hearings and information
provided in petitioner's Rule 35(b) motion. Accordingly,
we conclude that the circuit court's findings of fact and
conclusions of law were sufficient and did not violate
petitioner's due process rights.
foregoing reasons, we affirm the circuit court's April 6,
2017, order denying his Rule 35(b) ...