(Preston County 13-F-42)
Jackie S., pro se, appeals the Circuit Court of Preston
County's February 13, 2018, order denying his motion for
reduction of sentence under Rule 35(b) of the West Virginia
Rule of Criminal Procedure. The State of West Virginia, by
counsel Julianne Wisman, filed a response and a supplemental
appendix. Petitioner filed a reply. On appeal, petitioner
argues that the circuit court abused its discretion by
denying his Rule 35(b) motion.
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.
October of 2013, petitioner was indicted on twelve counts of
incest and eight counts of sexual abuse by a parent,
guardian, or custodian. In July of 2015, petitioner entered
into an Alfordplea to one count of sexual abuse by a
parent, guardian, or custodian. Ultimately, the circuit
court, by order dated July 23, 2015, sentenced petitioner to
an indeterminate sentence of ten to twenty years of
incarceration with twenty years of extended supervised
release and a lifetime requirement to register as a sex
offender. Petitioner appealed the sentencing order and this
Court affirmed the circuit court's ruling. See State
v. Jackie S., No. 15-0985, 2017 WL 75946 ( W.Va. Jan. 9,
August of 2015, petitioner filed a "Motion for Reduction
of Sentence" under Rule 35(b) of the West Virginia Rules
of Criminal Procedure. The circuit court held a hearing on
that motion in December of 2015 and, ultimately, denied the
motion by order entered December 11, 2015. Petitioner did not
appeal this order.
February of 2018, petitioner filed a second Rule 35(b)
motion. The circuit court denied this motion, by order dated
February 13, 2018, finding that petitioner filed the motion
outside of the 120-day time limit set forth in Rule 35(b) and
failed to articulate sufficient grounds as to why the
sentence should be modified or reduced. It is from the
February 13, 2018, order that petitioner now appeals.
previously held that:
"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).
Pt. 1, State v. Marcum, 238 W.Va. 26, 792 S.E.2d 37
appeal, petitioner asserts two assignments of error regarding
the underlying sentencing order and a third assignment of
error related to the circuit court's denial of his first
Rule 35(b) motion. Petitioner asserts no assignment of error
regarding the circuit court's order denying the instant
Rule 35(b) motion. In regard to our review of a circuit
court's order denying a Rule 35(b) motion, we have held
that "Rule 35(b) of the West Virginia Rules of Criminal
Procedure only authorizes a reduction in sentence. Rule 35(b)
is not a mechanism by which defendants may challenge their
convictions and/or the validity of their sentencing."
Syl. Pt. 3, in part, State v. Collins, 238 W.Va.
123, 792 S.E.2d 622 (2016) (internal citation omitted).
Further, "Rule 35(b) cannot be used as a vehicle to
challenge a conviction or the validity of the sentence
imposed by the circuit court, whether raised in the Rule
35(b) motion or in the appeal of the denial of the Rule 35(b)
motion." Id. at 128, 792 S.E.2d at 627 (quoting
State v. Marcum, 238 W.Va. 26, 31, 792 S.E.2d 37, 42
(2016)). Consequently, we will not consider petitioner's
arguments challenging his conviction, the validity of his
sentence, or his prior Rule 35(b) motion.
even if petitioner challenged the propriety of the denial of
his second Rule 35(b) motion, we find no error due to the
untimeliness of the motion. Rule 35(b) provides that
[a] motion to reduce a sentence may be made, or the court may
reduce a sentence without motion within 120 days after the
sentence is imposed or probation is revoked, or within 120
days after the entry of a mandate by the supreme court of
appeals . . . dismissing or rejecting a petition for appeal
of a judgment of a conviction or probation revocation.
Syllabus Point 2 of State ex rel. State v. Sims, 239
W.Va. 764, 806 S.E.2d 420 (2017), we made clear that
"[a] circuit court does not have jurisdiction to rule
upon the merits of a motion for reduction of a sentence under
Rule 35(b) of the West Virginia Rules of Criminal Procedure
when the motion is filed outside the 120-day filing period
set out under that rule." Accordingly, because
petitioner's Rule 35(b) motion was filed more than 120
days after the circuit court imposed sentence and after this
Court issued its mandate in State v. Jackie S., we
find no error.
foregoing reasons, the circuit court's February 13, 2018,
order denying petitioner's Rule ...