IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2015 Term
FILED
_____________ October 8, 2015
released at 3:00 p.m.
RORY L. PERRY II, CLERK
No. 14-0891 SUPREME COURT OF APPEALS
_____________ OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent
V.
TEX B. S.,
Defendant Below, Petitioner
Appeal from the Circuit Court of Morgan County
Honorable Christopher C. Wilkes, Judge
Criminal Action No. 07-F-20
AFFIRMED
Submitted: September 16, 2015
Filed: October 8, 2015
Kevin D. Mills Patrick Morrisey
Shawn R. McDermott Attorney General
Mills McDermott, PLLC Shannon Frederick Kiser
Martinsburg, West Virginia Assistant Attorney General
Attorneys for Petitioner Charleston, West Virginia
Attorneys for Respondent
JUSTICE DAVIS delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “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.” Syllabus point 1, State v. Head, 198
W. Va. 298, 480 S.E.2d 507 (1996).
2. In correcting an illegal sentence 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. Further, under Rule 43(c)(4) of the West Virginia
Rules of Criminal Procedure, a defendant need not be present at a Rule 35(a) proceeding to
correct a sentence. This Court will not reverse the denial of a request for a de novo
resentencing hearing on a trial court’s correction of a sentence under Rule 35(a) absent a
showing of an abuse of discretion.
i
Davis, Justice:
Petitioner, Tex B. S. (“Mr. S.”)1 , appeals from an order of the Circuit Court
of Morgan County that corrected his sentence for first-degree sexual assault. Mr. S. alleges
that the circuit court committed error in denying his request for a de novo resentencing
hearing. The Respondent, State of West Virginia, responds in support of the circuit court’s
order correcting Mr. S.’s sentence without a de novo resentencing hearing. After a careful
review of the briefs submitted by the parties, the record submitted for appeal, the oral
arguments presented to this Court, and the applicable case law, we affirm.
I.
FACTUAL AND PROCEDURAL HISTORY
This case was presented to this Court in 2011, as an initial appeal by Mr. S.
from his conviction and sentence for first-degree sexual assault and sexual abuse by a parent
or guardian.2 In that proceeding, we affirmed, in an unpublished decision, the order
convicting and sentencing Mr. S.3 The only issue before this Court in the current proceeding
1
Given the sensitive nature of the facts involved in this proceeding, we refer
to the petitioner herein by his last initials. See, e.g., State v. Robert Scott R., Jr., 233 W. Va.
12, 754 S.E.2d 588 (2014) (per curiam); State v. Larry A.H., 230 W. Va. 709, 742 S.E.2d 125
(2013) (per curiam); State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
2
The victim in the case was the four-year-old daughter of Mr. S.’s wife.
3
See State v. S., No. 35540 (W. Va. February 11, 2011) (Memorandum
Decision).
1
involves the sentence Mr. S. received for the first-degree sexual assault conviction.
After we affirmed Mr. S.’ original conviction and sentence, he filed a habeas
corpus petition in circuit court. In that petition, Mr. S. alleged that his sentence for first-
degree sexual assault was illegal because it was not the sentence prescribed for the offense
he was convicted of committing.4 The sentence Mr. S. received for the first-degree sexual
assault conviction was an indeterminate sentence of not less than twenty-five years nor more
than one hundred years.5 In the habeas petition, Mr. S. alleged that the statute in place when
the offense occurred authorized only an indeterminate sentence of not less than fifteen years
nor more than thirty-five years.
At a hearing held on July 8, 2014, the circuit court determined sua sponte that
Mr. S.’s habeas petition was not the proper mechanism for challenging his sentence. The
court found that the issue was properly resolved under Rule 35 of the West Virginia Rules
of Criminal Procedure. Consequently, the circuit court determined that it would correct
Mr. S.’s sentence pursuant to Rule 35. Mr. S. participated in the hearing on the matter via
video conferencing. He was represented by counsel at the proceeding. During the hearing,
4
Other issues were raised in the habeas petition, but Mr. S. has presented those
matters in a separate appeal.
5
It appears that Mr. S. initially was given an incorrect determinate sentence of
fifty years for the first-degree sexual assault conviction.
2
the State conceded that Mr. S. was not sentenced under the statute in place when he
committed the crime. Even so, Mr. S. argued that he was entitled to a de novo resentencing
hearing. The trial court disagreed with Mr. S. and determined that it would correct the
sentence. The trial court announced the new sentence at the hearing and entered an order on
July 29, 2014; Mr. S. received an indeterminate sentence of not less than fifteen years nor
more than thirty-five years for first-degree sexual assault.6 This appeal followed.
II.
STANDARD OF REVIEW
The controlling issue presented in this appeal is whether the circuit court
abused its discretion in denying Mr. S.’s request for a de novo resentencing hearing. Our
review standard of an order correcting a sentence under Rule 35 has been stated as follows:
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).
6
The corrected sentence did not include a fine, which was part of the original
sentence.
3
III.
DISCUSSION
Mr. S. contends that the trial court committed reversible error in denying his
request for a de novo resentencing hearing. Specifically, Mr. S. alleged that he “was not
allowed to appear in person” and that, at the hearing, he “was not allowed to present
evidence, put on witnesses, or give his allocution to the court.” The State contends that
Mr. S. did not have a right to a de novo resentencing hearing.
A defendant is constitutionally guaranteed the right to be present at any stage
of the criminal proceeding that is critical to its outcome, if his or her presence would
contribute to the fairness of the procedure. We held in Syllabus point 6 of State v. Boyd, 160
W. Va. 234, 233 S.E.2d 710 (1977), that “[t]he defendant has a right under Article III,
Section 14 of the West Virginia Constitution to be present at all critical stages in the criminal
proceeding; and when he is not, the State is required to prove beyond a reasonable doubt that
what transpired in his absence was harmless.” See also Kentucky v. Stincer, 482 U.S. 730,
745, 107 S. Ct. 2658, 2667, 96 L. Ed. 2d 631 (1987). We also have held that “[a] critical
stage of a criminal proceeding is where the defendant’s right to a fair trial will be affected.”
Syl. pt. 2, State v. Tiller, 168 W. Va. 522, 285 S.E.2d 371 (1981). This includes the right to
be present upon the imposition of sentence. See W. Va. R. Crim. P., 43(a) (“The defendant
shall be present . . . at the imposition of sentence, except as otherwise provided by this
4
rule.”). Additionally, Rule 32(c) of the West Virginia Rules of Criminal Procedure provides
that, at the time of sentencing, the defendant has the right to allocution, that is, to present any
information in mitigation of punishment, and to make a statement on his or her own behalf.
See Syl. pt. 6, State v. Holcomb, 178 W. Va. 455, 360 S.E.2d 232 (1987) (“[Rule 32(c)(3)(c)]
of the West Virginia Rules of Criminal Procedure confers a right of allocution upon one who
is about to be sentenced for a criminal offense.”).
A defendant’s right to be present at an initial sentencing hearing has been
qualified by Rule 43(c)(4) of the West Virginia Rules of Criminal Procedure. Rule 43(c)(4)
provides an exception to a defendant’s right to attend a sentencing hearing if it involves a
correction of sentence under Rule 35. Consequently, the resolution of the issue presented by
Mr. S. involves the interplay between Rule 35 and Rule 43(c)(4). Rule 35 provides in full
as follows:
(a) Correction of Sentence. The court may correct an
illegal sentence at any time and may correct a sentence imposed
in an illegal manner within the time period provided herein for
the reduction of sentence.
(b) Reduction of Sentence. 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
5
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.
Rule 43(c)(4) provides as follows:
(c) Presence Not Required. A defendant need not be
present in the following situations:
....
(4) At a reduction of sentence under Rule 35.
Mr. S.’s sentence was corrected under Rule 35(a).7 In a recent Memorandum
Decision by this Court, State v. Donald B., No. 13-1205, 2015 WL 3751987 (W. Va. June
15, 2015), we addressed the issue of correcting a sentence under Rule 35(a). In Donald B.,
the defendant argued that the trial court committed error in failing to hold a de novo
sentencing hearing to correct his sentence under Rule 35(a). The defendant in Donald B.
originally was sentenced to ten to twenty-five years in prison for second degree sexual
7
During a discussion between the circuit court and defense counsel the issue
was summarized as follows:
Defense Counsel: Certainly, Your Honor. Just to be clear, the
Court is correcting the sentence under its own power under Rule
35 Subsection [a].
The Court: Yes.
Defense Counsel. And not under the habeas that I filed?
The Court. Correct.
6
assault.8 After the defendant’s direct appeal and first federal habeas petition were denied,
he filed a second federal habeas petition arguing that he was sentenced under the wrong
statute. The defendant contended that the statute in place when he committed the offense had
a penalty of ten to twenty years in prison. The Fourth Circuit eventually heard the case,
vacated the sentence, and instructed the federal district court to remand the case to the State
trial court to correct the sentence. When the case was remanded to the circuit court, it was
treated as a sentence correction under Rule 35(a). As such, the trial court entered an order
summarily correcting the sentence. The defendant appealed and argued that he was entitled
to a de novo or plenary sentencing hearing. This Court disagreed succinctly as follows:
Petitioner’s second and final assignment of error is that
the circuit court erred in denying him a plenary sentencing
hearing prior to resentencing him. Specifically, petitioner
argues that the circuit court denied his rights to allocution,
presentation of mitigation evidence, an opportunity for his
attorney to address sentencing alternatives, and to be present in
person at a sentencing hearing. Importantly, however, petitioner
does not argue that he failed to receive a plenary sentencing
hearing, with all attendant rights, at the time of his original
disposition in this matter, and the State maintains that he was so
provided with those rights. Therefore, petitioner, in essence,
argues that he was entitled to a second plenary sentencing
hearing due to the federal district court’s order vacating his
original sentence. Assuming, arguendo, that we adopt his
position that the federal district court’s mandate placed him in
the position as if no original sentencing order had been entered,
we still find no controlling authority entitling him to a second
plenary sentencing hearing. The federal district court’s order
vacated the original sentencing order and clearly and expressly
8
The defendant was convicted of two counts of second degree sexual assault.
7
mandated “re-sentencing.” Such mandate was fulfilled by the
circuit court. Therefore, given the circumstances of this case,
we find no error in the circuit court’s order.
Donald B., 2015 WL 3751987, at *3.9
Federal courts have reached the same result as Donald B. by construing
together former federal Rule 35(a) and Rule 43(c)(4).10 That is, federal courts addressing the
issue have held that, under former federal Rule 35(a) and Rule 43(c)(4), a defendant is
9
This Court has summarily addressed the issue of whether an “actual hearing”
is required when a trial court is asked to modify a sentence under Rule 35(b). We resolved
the matter in State v. King, 205 W. Va. 422, 518 S.E.2d 663 (1999), as follows:
As his first assignment of error, the appellant contends
that the circuit court erred by denying a hearing on his Motion
to Reduce Sentences filed pursuant to Rule 35[b]. . . .
Having examined the record, we do not find that the
circuit court abused its discretion by not holding a hearing on
the appellant’s Rule 35[b] motion. The record establishes that
the circuit court held lengthy hearings when the appellant pled
guilty and when he was sentenced. Thus, we find no merit to
the appellant’s contention that the circuit court was required to
hold another hearing to consider his motion for a reduction of
sentences.
King, 205 W. Va. at 425, 518 S.E.2d at 666. See also State v. Fore, No. 11-0367, 2012 WL
3030747, at *2 (W. Va. April 16, 2012) (Memorandum Decision) (“The Court finds that a
circuit court has the discretion in deciding whether or not an evidentiary hearing is necessary
on a Rule 35(b) motion. For this, the circuit court did not err in making a ruling without
holding a hearing.”).
10
State Rule 35(a) and Rule 43(c)(4) were originally patterned after their federal
counterparts. The federal rules have since been modified.
8
generally not entitled to a de novo sentencing hearing, nor does he or she have a right to be
present when a sentence is corrected. For example, in United States v. Pineda, 988 F.2d 22
(5th Cir. 1993), the defendant was convicted of a drug offense and sentenced to the statutory
maximum of fifteen years imprisonment, plus a ten year enhancement for prior convictions.
The defendant subsequently filed a motion to correct an illegal sentence under Rule 35(a).
The district court, without the defendant being present, granted the motion for correction of
sentence and resentenced the defendant to only fifteen years in prison. Several years after
the sentence was corrected the defendant filed a habeas petition seeking to vacate his reduced
sentence on the grounds that he was denied the right to be present in court when his sentence
was reduced. The district court denied the petition. The appellate court affirmed based upon
the following:
Federal Rule of Criminal Procedure 43(c)(4) provides
that a defendant need not be present “[a]t a reduction of
sentence under Rule 35.” We conclude that this language
applies to a downward correction of an illegal sentence under
Rule 35(a) as well as to a “reduction” under Rule 35(b). We
therefore agree with the eleventh circuit that “where the entire
sentencing package has not been set aside, a correction of an
illegal sentence does not constitute a resentencing requiring the
presence of the defendant, so long as the modification does not
make the sentence more onerous.” United States v. Jackson,
923 F.2d 1494, 1497 (11th Cir.1991).
Pineda, 988 F.2d at 23.11
11
This Court previously applied Rule 43(c)(3), instead of Rule 43(c)(4) to find
that a defendant is not required to be present at a resentencing hearing. In the single syllabus
(continued...)
9
A similar issue was raised in Wells v. United States, 469 A.2d 1248 (D.C.
1983). In Wells, the defendant was convicted and sentenced for three counts of
felony-murder, two counts of assault with intent to kill, and one count of arson. After several
appeals the defendant filed a motion to correct an illegal sentence under Rule 35(a). The
defendant argued in his motion that he should not have been sentenced for arson, because
that was the underlying felony in which the felony-murder convictions were obtained. The
trial court conducted a summary oral hearing at which the defendant’s counsel was present,
but not the defendant. The trial court issued an order vacating the arson sentence and
reimposing the original sentences on the other convictions. On appeal, the defendant argued
that the resentencing hearing should have been de novo and that he had a right to be present.
The appellate court disagreed as follows:
The law is clear that a defendant must be present in
person at the time sentence is originally imposed and that he
must be afforded the right of allocution. . . .
Rule 35(a) is limited by its terms to the correction or
reduction of sentence and no opportunity for allocution is
required in this situation. The counterpart of this rule,
Fed. R. Crim. P. 43, has been so construed in three different
circuits.
In our opinion, these decisions reflect the intent of the
11
(...continued)
of State ex rel. Everett v. Hamilton, 175 W. Va. 654, 337 S.E.2d 312 (1985), we held that,
under Rule 43(c)(3), “[w]here the defendant was given an enhanced sentence of life
imprisonment . . . due to two prior felony convictions and one of those two convictions is
later reversed, the defendant’s presence is not required to modify the enhanced sentence.”
10
applicable rules. Accordingly, the court in correcting the
original sentence was under no duty to ask appellant personally
if he cared to make a statement in his own behalf.
Wells, 469 A.2d at 1249-50. See United States v. Parker, 101 F.3d 527 (7th Cir. 1996);
United States v. Harris, 36 F.3d 1103 (9th Cir. 1994); United States v. Nolley, 27 F.3d 80
(4th Cir. 1994).
The reason for not conducting a de novo sentencing hearing is because “[t]he
defendant has already had an opportunity to challenge the accuracy and reliability of the
information upon which the sentencing judge relied and to present any evidence in
mitigation.” United States v. Dickerson, No. CRIM. A. 95189, 1997 WL 738613, at *1 (E.D.
La. Nov. 26, 1997). The justification has been more fully explained as follows:
[I]n the context of a remedial reduction of sentence after a
successful Rule 35 challenge to the legality of the original
sentence, . . . [t]here has already been a sentencing hearing at
which the defendant had the opportunity to rebut evidence in the
presentence investigation report and to present evidence in
mitigation; the sentencing judge has made the necessary
credibility determinations and exercised the necessary discretion
to fashion a sentencing package which he has determined, in
fact, is the appropriate penalty considering the defendant’s
conduct and level of culpability. If the prison terms imposed on
some but not all of the counts are then held to be illegally long,
the illegal terms must be reduced; but the whole process need
not start anew. In constitutional terms, a remedial sentence
reduction is not a critical stage of the proceedings; so, the
defendant’s presence is not required.
United States v. Jackson, 923 F.2d 1494, 1497 (11th Cir. 1991). See also United States v.
11
Sabatino, 963 F.2d 366 (1st Cir. 1992); United States v. Thompson, 979 F.2d 743 (9th Cir.
1992).12
12
We also must note that a different body of law applies when this Court
remands a case for imposition of a new sentence. The decisions of this Court have not
followed a rigid formula in remanding cases for resentencing. The nature of the sentencing
error appears to be the yardstick for this Court’s remand instructions pertaining to
resentencing. This Court has vacated sentences and remanded cases for de novo sentencing
hearings when the original sentencing hearings had structural flaws. See, e.g., State v.
Bennett, 233 W. Va. 346, 352, 758 S.E.2d 273, 279 (2014) (“Having found the court
committed reversible error by placing the petitioner on probation and ordering her to perform
community service in addition to imposing a fine and court costs, we reverse the final order
with respect to the sentence imposed and remand this case for a new sentencing hearing
only.”); State v. Brown, 210 W. Va. 14, 29, 552 S.E.2d 390, 405 (2001) (“However, we
reverse his sentence of consecutive life terms and remand for the preparation of a presentence
report, in accordance with Rule 32 of the West Virginia Rules of Criminal Procedure, and
a new sentencing hearing.”); Becton v. Hun, 205 W. Va. 139, 145, 516 S.E.2d 762, 768
(1999) (“Accordingly, we reverse the lower court’s decision and remand this case solely for
the purpose of conducting a new sentencing hearing, wherein the lower court will consider
the State’s recommendation of a ten-year sentence in exchange for the Appellant’s conviction
of one count of aggravated robbery, prior to resentencing the Appellant.”); State v. Posey,
198 W. Va. 270, 273, 480 S.E.2d 158, 161 (1996) (“For the reasons stated, the sentences in
this case are vacated and this matter is remanded with instructions that a new sentencing
hearing be held consistent with this opinion.”); State v. Pannell, 175 W. Va. 35, 39, 330
S.E.2d 844, 848 (1985) (“Because the trial court made an improper finding that the appellant
was not eligible for probation under Code § 62-12-2 (1984), we vacate the sentence imposed
by the lower court and remand the case for a new sentencing hearing, taking into
consideration the possibility of probation.”); State v. Maxwell, 174 W. Va. 632, 636, 328
S.E.2d 506, 510 (1985) (“Because there was a prejudicial error in the sentencing hearing, we
vacate the sentence imposed by the lower court and remand the case for a new sentencing
hearing consistent with this opinion.”). However, our cases also have vacated sentences and
remanded cases merely for the entry of a corrected sentence without a de novo sentencing
hearing. We crystallized this type of remand in Syllabus point 5 of State v. Fisher, 126
W. Va. 117, 27 S.E.2d 581 (1943), as follows:
Where in a criminal proceeding there is no error other
than in the entry of the judgment imposing sentence, the
(continued...)
12
Based upon the foregoing discussion and authorities, we now make clear that
In correcting an illegal sentence 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. Further, under Rule 43(c)(4) of the West Virginia Rules of Criminal
Procedure, a defendant need not be present at a Rule 35(a) proceeding to correct a sentence.
This Court will not reverse the denial of a request for a de novo resentencing hearing on a
trial court’s correction of a sentence under Rule 35(a) absent a showing of an abuse of
discretion.
Mr. S. cited to several cases from other jurisdictions to support his
argument that he was entitled to a de novo resentencing hearing. For example, two of the
decisions cited by Mr. S., State v. Winston, 182 Ohio App. 3d 306, 912 N.E.2d 655 (Ohio
12
(...continued)
judgment should be reversed and the case remanded for proper
judgment of sentence to be entered by the trial court.
See also State v. Lawson, 165 W. Va. 119, 122, 267 S.E.2d 438, 440 (1980) (“We will also
remand this case to allow the court to sentence the defendant to a definite term since he was
sentenced by the court to a term of not less than ten nor more than twenty years.”); State v.
Justice, 130 W. Va. 662, 673, 44 S.E.2d 859, 865 (1947) (“Perceiving no error other than the
incorrect judgment of sentence, we reverse the judgment of the trial court, and remand the
case for the entry of a proper judgment of sentence.”); State v. Beacraft, 126 W. Va. 895, 30
S.E.2d 541, 546 (1944) overruled on other grounds by State v. Dolin, 176 W. Va. 688, 347
S.E.2d 208 (1986) (“This error merits reversal only for the purpose of having the judgment
of sentence corrected. The judgment of the circuit court is therefore reversed and the case
remanded for entry of a proper judgment of sentence upon the verdict.”).
13
App. 2009) and State v. Bock, No. 07AP-119, 2007 WL 4171139 (Ohio App. 2007), involve
a previous ruling by the Ohio Supreme Court that a de novo resentencing hearing was
required when a defendant was not informed at the original sentencing hearing about
post-release control. However, this is no longer the law in Ohio. In State v. Fischer, 128
Ohio St. 3d 92, 942 N.E.2d 332 (Ohio 2010), the Ohio Supreme Court modified its previous
decision that required a de novo resentencing hearing when a defendant was not informed
of post-release control. Syllabus point 2 of Fischer states that “[t]he new sentencing hearing
to which an offender is entitled under State v. Bezak is limited to proper imposition of post-
release control. (State v. Bezak, 114 Ohio St. 3d 94, 2007-Ohio-3250, 868 N.E.2d 961,
syllabus, modified.).” See also State v. Bunting, Nos. 2011 CA 00112, 2011 CA 00131, 2012
WL 382922 (Ohio Ct. App. Feb. 6, 2012) (finding defendant not entitled to a de novo
sentencing hearing and no error in having defendant appear via video teleconferencing); State
v. Williams, 195 Ohio App. 3d 505, 512, 960 N.E.2d 1027, 1033 (Ohio Ct. App. 2011)
(“[W]e reject appellant’s contention that his entire sentence is void and a de novo
resentencing hearing is required. . . . [W]e find that a hearing restricted to only the void
portion of appellant’s sentence is required.”). The remaining cases cited by Mr. S. are
distinguishable because they are fact-specific to the unique laws of those jurisdictions. See
People v. Everett, 250 P.3d 649, 664 (Colo. App. 2010); Bell v. State, 863 So. 2d 458
(Fla. Dist. Ct. App. 2004); Gonzalez v. State, 838 So. 2d 1242, 1243 (Fla. Dist. Ct. App.
2003); People v. Waldrup, No. 2-10-0309, 12012 WL 6964974 (Ill. App. Ct. Jan. 11, 2012).
14
As previously noted, during the hearing the instant case the State conceded that
Mr. S.’s sentence for first-degree sexual assault was incorrect. Consequently, all that was
left for the circuit court to do was vacate the illegal sentence and impose the sentence
required by law. More importantly to our disposition is that the record of the original
sentencing hearing clearly demonstrates that Mr. S. original sentencing hearing comported
with due process. The trial court at the original sentencing hearing noted on the record the
following:
The Court: All right. Well, the Court has heard the
arguments of counsel, the statement and testimony by the
defendant, and also the testimony of the expert, Dr. Kradel, who
was called here to testify in support of the defendant’s request
for probation.
See State v. Fry, 61 Haw. 226, 231, 602 P.2d 13, 17 (1979) (“As a Rule 35 motion is part of
the original case and the corrected sentence runs anew from the time of the original
sentencing, the facts in the trial record are a sufficient basis for the court to act.”). Clearly,
there was no structural defect in the original sentencing hearing, such as prohibiting Mr. S.
the right of allocution, that required a de novo resentencing hearing under Rule 35(a).
Consequently, the circuit court did not abuse its discretion in denying Mr. S.’s request for a
de novo resentencing hearing.13
13
We summarily reject Mr. S.’s second assignment of error on procedural
grounds. Under that assignment of error, Mr. S. contends that he received ineffective
assistance of counsel at the original sentencing hearing. This a habeas corpus allegation that
was not addressed in the circuit court’s Rule 35 order, because the circuit court did not
(continued...)
15
IV.
CONCLUSION
We affirm the circuit court’s July 29, 2014, order correcting Mr. S.’s sentence
for first-degree sexual assault.
Affirmed.
13
(...continued)
address the matter as a habeas corpus issue. See 2 Franklin D. Cleckley, Handbook on West
Virginia Criminal Procedure, p. 435 (2d ed. 1993) (“Prior to adoption of [Rule 35], a
correction of sentence after final judgment could only be had upon an appeal or writ of
habeas corpus. An improper sentence should and can be corrected under Rule 35.”); Hill v.
United States, 368 U.S. 424, 430, 82 S. Ct. 468, 472, 7 L. Ed. 2d 417 (1962) (“It is suggested
that although the petitioner denominated his motion as one brought [as habeas petition], we
may consider it as a motion to correct an illegal sentence under Rule 35 of the Federal Rules
of Criminal Procedure. This is correct.”). Insofar as this is a direct appeal from the circuit
court’s Rule 35 order, the habeas contention is not properly part of this appeal. We will also
note that the habeas argument made herein was in fact addressed by this Court in the
companion case filed by Mr. S. See Tex S. v. Pszczolkowski, No. 14-0920, ___ W.Va. ___,
___ S.E.2d ___ (2015).
16