Jack R. Watts, appearing pro se, appeals the order of the
Circuit Court of Ohio County, entered on November 13, 2018,
that denies his motion for reduction of sentence. The State
appears by counsel Patrick Morrisey and Holly M. Flanigan.
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 order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.
Watts was sentenced in October of 2011 to a term of
incarceration for 215 to 705 years upon his conviction of
four counts of sexual assault, five counts of first-degree
sexual abuse, and nine counts of sexual abuse by a person in
a position of trust to a child. The circumstances of his
conviction have been presented to this Court on several
occasions. On this occasion, we are asked to review
the circuit court's denial of Mr. Watts' motion for
reconsideration of sentence, which he filed pursuant to Rule
35(b) of the West Virginia Rules of Criminal Procedure in May
of 2018, some six-and-a-half years after he was sentenced and
nearly five years after this Court affirmed his conviction.
We review Mr. Watts' assignments of error under a
three-pronged standard, wherein we consider the circuit
court's ultimate decision for abuse of discretion, the
underlying facts for clear error, and questions of law and
interpretations of statutes and rules on a de novo basis.
See Syl. Pt. 1, State v. Head, 198 W.Va.
298, 480 S.E.2d 507 (1996).
dispatch of these prongs in consideration of the arguments
presented is relatively swift. Rule 35(b) provides:
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 upon affirmance of a judgment of a conviction or
probation revocation or the entry of an order by the supreme
court of appeals dismissing or rejecting a petition for
appeal of a judgment of a conviction or probation revocation.
The court shall determine the motion within a reasonable
time. Changing a sentence from a sentence of incarceration to
a grant of probation shall constitute a permissible reduction
of sentence under this subdivision.
circuit court pointed out in denying the motion,
petitioner's filing was made well outside the 120 days
prescribed by the rule. Petitioner assigns as error the
circuit court's failure to make specific findings in
support of the denial, and the court's failure to conduct
a hearing to determine whether he was adequately advised by
prior counsel of the applicable time constraints. We
conclude, however, that the circuit court did, in fact, make
the critical finding that petitioner's motion was
untimely, thus precluding consideration. "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." Syl. Pt. 2, State ex rel. State v. Sims,
239 W.Va. 764, 806 S.E.2d 420 (2017). Further findings would
have been superfluous and improper.
Watts argues that the circuit court should have conducted a
hearing on his Rule 35(b) motion to determine whether counsel
effectively advised him about motion strategy. This is not,
however, the appropriate juncture to develop such evidence.
"The prudent defense counsel first develops the record
regarding ineffective assistance of counsel in a habeas
corpus proceeding before the lower court, and may then appeal
if such relief is denied." Syl. Pt. 9, in part,
State v. Woodson, 222 W.Va. 607, 671 S.E.2d 438
(2008). As noted above, Mr. Watts has called upon this Court
on direct appeal and in search of habeas relief, and he was
given the opportunity to raise this issue most recently in
2017, when the circuit court made findings on his asserted
twenty-three grounds for relief. See State ex rel. Watts
v. Ames, No. 18-0003, 2019 WL 2499329 (W.Va. June 17,
2019) (memorandum decision). Inasmuch as Mr. Watts has not
previously pursued a claim of ineffective assistance of
counsel concerning Rule 35(b) motions practice, we deem this
issue waived pursuant to syllabus point 4, Losh v.
McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981)("A
prior omnibus habeas corpus hearing is res judicata
as to all matters raised and as to all matters known or which
with reasonable diligence could have been known. . . .")
foregoing reasons, we affirm.
CONCURRED IN BY: CHIEF JUSTICE ELIZABETH D. WALKER JUSTICE
MARGARET L. WORKMAN JUSTICE TIM ARMSTEAD JUSTICE EVAN H.
JENKINS JUSTICE JOHN A. HUTCHISON
See State ex rel. Watts v.
Ames, No. 18-0003, 2019 WL 2499329 (W.Va. June 17, 2019)
(memorandum decision); Watts v. Ballard, 238 W.Va.
730, 798 S.E.2d 856 (2017); and State v. Watts, No.
11-1643, 2013 WL 1632091 ...