IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2016 Term
FILED
October 11, 2016
No. 15-0696 released at 3:00 p.m.
RORY L. PERRY, II CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent
v.
KENNETH ALLEN MARCUM,
Defendant Below, Petitioner
Appeal from the Circuit Court of Mingo County
Honorable Miki J. Thompson, Judge
Criminal Action No. 14-F-105
AFFIRMED
Submitted: September 14, 2016
Filed: October 11, 2016
Jerry M. Lyall, Esq. Patrick Morrisey, Esq.
Williamson, West Virginia Attorney General
Counsel for the Petitioner David A. Stackpole, Esq.
Assistant Attorney General
Zachary Aaron Viglianco, Esq.
Assistant Attorney General
Charleston, West Virginia
Counsel for the Respondent
JUSTICE LOUGHRY 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.” Syl. Pt. 1, State v. Head, 198 W.Va. 298, 480 S.E.2d 507
(1996).
2. 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.
3. “When considering West Virginia Rules of Criminal Procedure 35(b)
motions, circuit courts generally should consider only those events that occur within the
120-day filing period; however, as long as the circuit court does not usurp the role of the
parole board, it may consider matters beyond the filing period when such consideration
serves the ends of justice.” Syl. Pt. 5, State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).
i
4. “‘“When a defendant has been convicted of two separate crimes, before
sentence is pronounced for either, the trial court may, in its discretion, provide that the
sentences run concurrently, and unless it does so provide, the sentences will run
consecutively.” Syllabus point 3, Keith v. Leverette, 163 W.Va. 98, 254 S.E.2d 700 (1979).’
Syllabus Point 3, State v. Allen, 208 W.Va. 144, 539 S.E.2d 87 (1999).” Syl. Pt. 7, State ex
rel. Farmer v. McBride, 224 W.Va. 469, 686 S.E.2d 609 (2009).
ii
LOUGHRY, Justice:
The petitioner, Kenneth Allen Marcum, appeals the June 18, 2015, order of the
Circuit Court of Mingo County denying his motion to reduce his sentence filed under Rule
35(b) of the West Virginia Rules of Civil Procedure. Following the entry of his guilty plea,
the petitioner was convicted of two felonies: Conspiracy to commit the destruction of
property and Attempt to commit grand larceny. He was sentenced to consecutive terms of
incarceration of one to five years and one to three years, respectively. The petitioner asserts
that the circuit court abused its discretion in not reducing his sentence by awarding him
probation or concurrent sentencing. He also asserts that the circuit court erred by sentencing
him on his felony conspiracy conviction when evidence presented during his sentencing
hearing indicated his crime was a misdemeanor. During the pendency of this appeal, the
Court asked the parties to brief the issue of whether the Court had jurisdiction to consider
issues unrelated to the petitioner’s Rule 35(b) motion, and they have done so. For the reasons
stated herein, we find the petitioner’s assignment of error challenging his felony conspiracy
conviction exceeds the scope of Rule 35(b) and is not properly before the Court. Following
a careful review of the briefs, the arguments of counsel, the record submitted, and the
applicable law, we further find no reversible error regarding the circuit court’s refusal to
award either concurrent sentencing or probation, and we affirm the circuit court’s denial of
the petitioner’s Rule 35(b) motion.
1
I. Facts and Procedural Background
On September 17, 2014, a Mingo County Grand Jury returned a four-count
indictment against the petitioner charging, as follows: Count I - injuring and defacing a truck
owned by Randy Gilman causing a loss in the value of the property in the approximate
amount of $2,551.091 in violation of West Virginia Code § 61-3-30(b) (2014); Count II
conspiracy to commit Count I in violation of West Virginia Code § 61-10-31 (2014) and §61
3-30(b); Count III - entering without breaking a storehouse owned by Ernestine Richardson
with intent to commit larceny in violation of West Virginia Code § 61-3-12 (2014); and
Count IV - grand larceny by taking and carrying away an all terrain vehicle owned by
Ernestine Richardson in violation of West Virginia Code § 61-3-13(a) (2014). The
petitioner entered into a plea agreement with the State whereby he would plead guilty to
Count II, as charged, and to the lesser included offense of Attempt to commit the grand
larceny charged in Count IV. In return for his guilty pleas, the State agreed to dismiss
Counts I and III and to recommend concurrent sentencing.
In his Petition to Enter Guilty Plea filed below, the petitioner stated that he had
consulted with his attorney prior to accepting the proposed plea agreement and that his
attorney had explained the charges against him. Although the State agreed to recommend
1
This amount was based on a repair estimate the State obtained, pre-indictment, from
a local business.
2
concurrent sentencing, the petitioner expressly acknowledged in the Petition to Enter Guilty
Plea that sentencing was within the circuit court’s sole discretion:
I know and understand that this Court will not be bound
by any agreement or recommendation by the Prosecuting
Attorney which pertains to the sentence I will receive if I plead
guilty in this case, that the matter of sentencing is strictly for the
Court to decide, and that the Court will not be obligated or
required to give any effect whatever to such recommendations.
I understand that I cannot withdraw this plea if I am not
satisfied with the sentence that is imposed or the disposition that
is made. I understand that I cannot withdraw this plea if the
Court does not follow the recommendation of the Prosecuting
Attorney on the sentence, the disposition or on probation. I
understand that if probation is denied I cannot withdraw this
plea.
On November 17, 2014, the circuit court held a plea hearing during which the
petitioner acknowledged that he had read, understood, and signed the Plea Agreement, the
Petition to Enter Guilty Plea, the Defendant’s Statement in Support of Guilty Plea, and the
Plea Form. The petitioner also confirmed that he understood the rights he was waiving by
pleading guilty. With regard to the circuit court’s discretion in sentencing, the following
exchange transpired between the circuit court and the petitioner:
Q: Do you understand that if the Court doesn’t want to the Court
does not have to accept the State’s recommended sentence, and,
if that happens, you don’t have the right to withdraw your plea?
Do you understand?
A: Yes, ma’am.
3
Thereafter, the petitioner pled guilty to Conspiracy to commit the destruction of property
charged in Count II and to Attempt, a lesser included offense of the grand larceny charged
in Count IV of the indictment. At the close of the plea hearing, the circuit court accepted the
plea agreement and expressly “reserve[d] the right not to follow the State’s recommended
sentence.” On December 5, 2014, the circuit court entered its Plea Order in which it
adjudged the petitioner convicted of the “Conspiracy [Destruction of Property] and Attempt
[Grand Larceny].”
A sentencing hearing was held before the circuit court on January 22, 2015.
During this hearing, the State advised the circuit court that the petitioner had violated his
home confinement, had failed to attend his appointments with his probation officer, and had
failed to report to the Day Report Center. The State further advised that because the
petitioner had also failed to meet with the probation office for a Level of Service/Case
Management Inventory (“LS/CMI”) evaluation,2 the probation office was unable to prepare
a pre-sentence investigation report.3 The petitioner’s counsel proffered that the petitioner’s
2
See State v. Wilson, 237 W.Va. 288, __, 787 S.E.2d 559, 563 n.8 (2016)(“The
LS/CMI is an assessment system that measures [an] offender’s risk and need factors for
purposes such as sentencing.”).
3
The parties state in their briefs that no pre-sentence report was prepared. There is no
pre-sentence report in the appendix record nor is one referenced in the circuit court’s docket
sheet for this matter. Further, the circuit court stated during the sentencing hearing that there
was no pre-sentence report. Accordingly, we assume that the circuit court’s statement in the
sentencing order entered on January 29, 2015, that it considered, inter alia, the pre-sentence
(continued...)
4
failures were due to his lack of transportation.4 In addressing the matter of restitution, the
State informed the court that based on the information available to it, the amount of
restitution for Conspiracy to commit the destruction of property was $2,580. The State then
presented the testimony of the victim, Mr. Gilman, who stated he was able to have his truck
repaired by an individual at a cost of $478.
On January 29, 2015, the circuit court entered an order sentencing the
petitioner, as follows: one to five years incarceration for Conspiracy to commit the
destruction of property and one to three years incarceration for Attempt to commit grand
larceny. Notwithstanding the State’s recommendation of concurrent sentencing, the circuit
court ordered the terms of incarceration to be served consecutively. The circuit court also
ordered restitution in the amount of $478 to be paid to Mr. Gilman for the repairs to his truck.
The circuit court’s sentencing order further provided that the petitioner’s counsel had ten
days to file written objections to the sentencing order and, if no objections were filed, the
sentencing order would continue with “full force and effect.” The petitioner did not file any
written objections and, on February 3, 2015, the circuit court entered a commitment order.
3
(...continued)
investigation report, is a typographical error.
4
The petitioner acknowledged in his appellate brief that he also failed to return any
of the telephone calls made to him by the probation office.
5
The petitioner did not file a direct appeal of his convictions or sentencing.
Instead, on April 20, 2015, he filed a motion in the circuit court under Rule 35(b) of the West
Virginia Rules of Criminal Procedure.5 The petitioner asserted in his motion that although
he believed throughout plea negotiations that the damage to Mr. Gilman’s truck was less than
$2,500,6 he agreed to plead guilty to felony conspiracy because he believed the sentence for
that crime would run currently with the sentence for his conviction for attempt to commit
grand larceny.7 The petitioner asked the circuit court to reduce his consecutive sentencing
to concurrent sentencing or, “in the alternative, . . . to reconsider his sentence and grant him
probation for the remainder of his sentence[.]”
On May 12, 2015, the circuit court held a hearing on the petitioner’s Rule 35(b)
motion. During this hearing, the petitioner reiterated his request for either concurrent
sentencing or a grant of probation on his remaining sentence. The circuit court stated that
“there’s nothing for me to base any kind of rational sentence on if he doesn’t show up and
5
Although the petitioner titled his motion as seeking a reconsideration of his sentence,
the West Virginia Rules of Criminal Procedure do not provide for such motions. Because
the petitioner was seeking a reduction in his sentencing, the circuit court addressed his
motion under Rule 35(b).
6
Under West Virginia Code § 61-3-30(a) and (b), if the destruction or injury to
property causes a loss in the amount of $2,500 or more, it is a felony; if the loss is less than
$2,500, it is a misdemeanor.
7
We note that the dismissal of two of the four counts in the indictment likely factored
into the petitioner’s decision to enter into the plea agreement, as well.
6
participate in that [his pre-sentence conference or consultation], so he puts me in a bad
position to where I have no choice but to run consecutive rather than concurrently.” On June
18, 2015, the circuit court entered an order denying the Rule 35(b) motion. This appeal
followed.
II. Standard of Review
The petitioner challenges the circuit court’s denial of his motion filed under
Rule 35(b) of the West Virginia Rules of Criminal Procedure. Our standard for reviewing
such orders is well-settled:
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). With this standard in mind,
we proceed to consider the parties’ arguments.
III. Discussion
A. Rule 35(b) of the West Virginia Rules of Criminal Procedure
Although the petitioner appeals the denial of his Rule 35(b) motion, he asserts
arguments related to the validity of his conviction. Consequently, we must first determine
7
whether this Court has jurisdiction to address alleged errors unrelated to the circuit court’s
Rule 35(b) ruling. Through our administrative order entered on June 2, 2016, this Court
directed the parties to file supplemental briefs on this issue. The petitioner’s supplemental
brief basically reiterates the arguments set forth in his original appellate brief, adding that this
Court has jurisdiction because the circuit court abused its discretion by committing legal
error. In the State’s supplemental brief, it asserts, inter alia, that the scope of appellate
review is restricted to the propriety of the circuit court’s denial of the Rule 35(b) motion; that
judicial economy is served by requiring defendants to assign pretrial and trial errors in a
direct criminal appeal; and that Rule 35(b) is limited to essentially seeking leniency from an
otherwise valid sentence. Our analysis of this issue necessarily involves consideration of the
scope of Rule 35(b).
Rule 35(b) expressly provides that it is limited to a reduction in sentencing:
(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
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.
8
W.Va. R. Crim. P. 35(b).8 As Justice Cleckley explained in his concurrence in Head,
[a]t the time a Rule 35(b) motion is filed, a final sentence
order has been entered. Independently of Rule 35(b), the
sentencing order itself is subject to appellate review, both as to
its constitutionality and its compliance with the West Virginia
Rules of Criminal Procedure and the applicable statutory
provisions.
Head, 198 W.Va. at 305, 480 S.E.2d at 514 (Cleckley, J., concurring). Indeed, a motion to
reduce a sentence under Rule 35(b) “is essentially a plea for leniency from a presumptively
valid conviction.” Head, 198 W.Va. 298, 306, 480 S.E.2d 507, 515 (Cleckley, J.,
concurring). In short, it is abundantly clear that 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. In
other words, challenges to convictions or the validity of sentences9 should be made through
a timely, direct criminal appeal before this Court will have jurisdiction to consider the
matter.10 See Syl. Pt. 2, State ex rel. Davis v. Boles, 151 W.Va. 221, 151 S.E.2d 110 (1966)
8
Rule 35(a) of the West Virginia Rules of Criminal Procedure, which permits a court
to correct an illegal sentence, is not at issue in this appeal.
9
See n.8, supra.
10
Of course, other avenues of relief, while restricted in scope, also remain available
to defendants, such as petitions for writs of habeas corpus, mandamus, and prohibition. See,
e.g., W.Va. Code § 53-4A-1(a) (“Any person convicted of a crime and incarcerated under
sentence of imprisonment . . . may . . . file a petition for a writ of habeas corpus . . . seeking
release from such illegal imprisonment, correction of the sentence, the setting aside of the
plea, conviction and sentence, or other relief . . . .”); Holcomb v. Sadler, 222 W.Va. 32, 658
S.E.2d 562 (2008) (denying writ of prohibition to defendant who sought to prohibit circuit
(continued...)
9
(“An appellate court is without jurisdiction to entertain an appeal after the statutory appeal
period has expired.”).
The intent and purpose of the Rule being clear, we now hold 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. Having dispensed with this preliminary matter, we will
consider the merits of the petitioner’s appeal of the denial of his Rule 35(b) motion.
B. The Denial of the Petitioner’s Rule 35(b) Motion
The petitioner asserts that the circuit court erred in denying his Rule 35(b)
motion in which he sought concurrent sentencing or probation. He criticizes the circuit
court’s comment made during the Rule 35(b) hearing that “there’s nothing for me to base any
kind of rational sentence on if he doesn’t show up and participate in that [his pre-sentence
conference or consultation], so he puts me in a bad position to where I have no choice but
to run consecutive rather than concurrently.”11 He argues that it was improper for the circuit
10
(...continued)
court from enforcing order approving DNA testing of his deceased child’s fingernail
scrapings); State ex rel. Blaney v. Reed, 215 W.Va. 220, 599 S.E.2d 643 (2004) (denying writ
of mandamus to defendant who sought to compel trial judge to dismiss indictment charging
him with sexual abuse).
11
Although the petitioner states that the circuit court made this comment during his
(continued...)
10
court to deny his Rule 35(b) motion based on the lack of an LS/CMI assessment, particularly
when a court does not have to rely upon such an assessment. In support of his argument, the
petitioner cites the concurrence filed in State v. Rogers, which states that the LS/CMI
assessment is merely a tool that may be used by circuit judges at their discretion during
sentencing. State v. Rogers, No. 14-0373, 2015 WL 869323 (W.Va. Jan. 9, 2015)
(memorandum decision) (Loughry, J., concurring). Rather than supporting the imposition
of consecutive sentencing, the petitioner asserts that the circuit court’s comment
demonstrates that there was no rational basis for consecutive sentencing.12
The State responds that the circuit court did not abuse its discretion in denying
the petitioner’s Rule 35(b) motion. The State emphasizes that, generally, sentences are
served consecutively. We agree. Indeed, the decision on whether sentences will be served
concurrently is entirely within the circuit court’s discretion:
When any person is convicted of two or more offenses,
before sentence is pronounced for either, the confinement to
which he may be sentenced upon the second, or any subsequent
conviction, shall commence at the termination of the previous
11
(...continued)
sentencing hearing, the appendix record reflects that the statement was made during the Rule
35(b) hearing.
12
The petitioner also asserts that the circuit court should have sua sponte delayed his
sentencing until a pre-sentence report could be prepared. He further avers that he accepted
the plea agreement, in part, because of a verbal promise that his brother’s charge as his co
conspirator would be reduced. Such challenges to his guilty plea and sentence are beyond
the scope of Rule 35(b) and are not properly before the Court.
11
term or terms of confinement, unless, in the discretion of the
trial court, the second or any subsequent conviction is ordered
by the court to run concurrently with the first term of
imprisonment imposed.
W.Va. Code § 61-11-21 (2014) (emphasis added.). As echoed in State ex rel. Farmer v.
McBride, 224 W.Va. 469, 686 S.E.2d 609 (2009),
“‘When a defendant has been convicted of two separate crimes,
before sentence is pronounced for either, the trial court may, in
its discretion, provide that the sentences run concurrently, and
unless it does so provide, the sentences will run consecutively.’
Syllabus point 3, Keith v. Leverette, 163 W.Va. 98, 254 S.E.2d
700 (1979).” Syllabus Point 3, State v. Allen, 208 W.Va. 144,
539 S.E.2d 87 (1999).
McBride, 224 W.Va. at 471, 686 S.E.2d at 612, syl. pt. 7 (Emphasis added).
Here, the petitioner’s Rule 35(b) motion was filed fifty days after he was
sentenced.
When considering West Virginia Rules of Criminal
Procedure 35(b) motions, circuit courts generally should
consider only those events that occur within the 120-day filing
period; however, as long as the circuit court does not usurp the
role of the parole board, it may consider matters beyond the
filing period when such consideration serves the ends of justice.
Head, 198 W.Va. at 299, 480 S.E.2d at 508, syl. pt. 5. While the circuit court may have been
referring to the lack of an LS/CMI assessment when it commented during the Rule 35(b)
hearing that there was nothing upon which to base a reduction in the petitioner’s valid
sentences, the court’s comment was nonetheless accurate. It is clear from the record that the
12
petitioner failed to cite any event that had occurred post-sentencing that would warrant a
reduction in his consecutive sentencing or an award of probation. Although the petitioner
argued below that he had expected to receive concurrent sentencing, as the State had
recommended, the circuit court clearly found his expectation insufficient to grant a reduction
in the sentences previously imposed. This is particularly true where the record indisputably
demonstrates that the petitioner understood that the circuit court was not bound by the State’s
recommendation and that sentencing was entirely within the court’s discretion. Based on the
record before us, we find no abuse of discretion in the circuit court’s denial of the petitioner’s
Rule 35(b) motion. See Head, 198 W.Va. at 301, 480 S.E.2d at 510 (“The abuse of
discretion standard on Rule 35 motions continues the deference we have traditionally
accorded trial courts in matters of sentencing.”).
Turning to the petitioner’s second assignment of error, he asserts that he should
not have been sentenced on his felony conspiracy conviction, and that the circuit court should
have sua sponte set aside his guilty plea, given victim Gilman’s testimony at the sentencing
hearing. While the petitioner noted in his Rule 35(b) motion that the amount of the restitution
awarded to Mr. Gilman made his conspiracy a misdemeanor, he did not seek to reduce his
sentence to the misdemeanor range, nor could he have done so. The petitioner stood before
the circuit court on his Rule 35(b) motion having been convicted of, and sentenced on, felony
conspiracy. Accordingly, he sought the only relief possible under Rule 35(b): a reduction of
13
his sentence to concurrent sentencing or an award of probation. Critically, this assignment
of error is a clear challenge to the petitioner’s felony conspiracy conviction, which is not
cognizable under Rule 35(b). Consequently, this assignment of error is not properly before
the Court.13
IV. Conclusion
For the reasons stated above, the June 18, 2015, order of the Circuit Court of
Mingo County is hereby affirmed.
Affirmed.
13
To the extent State v. Proctor, 227 W.Va. 352, 709 S.E.2d 549 (2011) (per curiam),
and any other prior decision of this Court conflicts with our ruling herein, we disapprove of
the same.
14