STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia, FILED
Plaintiff Below, Respondent
May 18, 2018
EDYTHE NASH GAISER, CLERK
vs) No. 17-0415 (Cabell County 05-F-321) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Robert L. Newsome,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Robert L. Newsome, pro se, appeals the April 4, 2017, order of the Circuit Court
of Cabell County denying his motion for correction of illegal sentence. Respondent State of West
Virginia (“the State”), by counsel Scott E. Johnson, filed a summary response in support of the
circuit court’s order. Petitioner filed a reply.
The 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.
Following a trial in May of 2006, petitioner was found guilty by a jury of possession with
intent to deliver a controlled substance (crack cocaine), delivery of a controlled substance (crack
cocaine), and conspiracy. On June 28, 2006, the State filed a recidivist information reciting
petitioner’s convictions from May of 2016 and charging him with being the same person twice
convicted of the following prior felony offenses: possession with intent to distribute cocaine base
on June 17, 1992, in the United States District Court of the Southern District of West Virginia, and
unlawful wounding on May 26, 1987, in the Circuit Court of Cabell County, West Virginia.
Following another trial on September 11, 2006, a separate jury found petitioner was the same
person previously convicted of possession with intent to distribute cocaine base and unlawful
wounding.
By order entered October 11, 2006, the circuit court imposed a recidivist sentence of a life
term of incarceration with the possibility of parole for possession with intent to deliver a controlled
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substance (crack cocaine),1 a sentence of one to fifteen years of incarceration for delivery of a
controlled substance (crack cocaine), and a sentence of one to five years of incarceration for
conspiracy. The circuit court ordered that petitioner’s sentences run consecutively.
On March 17, 2017, petitioner filed a motion for correction of illegal sentence pursuant to
Rule 35(a) of the West Virginia Rules of Criminal Procedure. Petitioner argued that his life
recidivist sentence was illegal because “the jury impaneled to hear the issue of identity never
returned a verdict . . . finding that [petitioner] was the same person [found guilty of] the triggering
conviction as required by [West Virginia] Code § 61-11-19.” By order entered April 4, 2017, the
circuit court denied the motion because there was no “basis to conclude that [petitioner] is serving
an [i]llegal [s]entence under Rule 35(a).”
Petitioner now appeals the circuit court’s April 4, 2017, order denying his motion for
correction of illegal sentence. Rule 35(a) provides, in pertinent part, that “[t]he court may correct
an illegal sentence at any time[.]” In syllabus point 1 of State v. Marcum, 238 W.Va. 26, 792
S.E.2d 37 (2016), we set forth the pertinent standard of review:
“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).
On appeal, petitioner argues that West Virginia Code § 61-11-19 requires that the jury
impaneled to hear the issue of identity following the filing of a recidivist information must find
that the defendant was the same person found guilty of the “triggering conviction” that caused the
recidivist information to be filed. The State counters that petitioner’s argument is wholly without
merit pursuant to syllabus point 3 of State v. Wyne, 194 W.Va. 315, 460 S.E.2d 450 (1995), where
we held that, “[u]nder [West Virginia Code §] 61-11-19 (1943)[,] a recidivist proceeding does not
require proof of the triggering offense because such triggering offense must be proven prior to the
invocation of the recidivist proceeding.” We agree with the State that syllabus point 3 of Wyne is
dispositive of this case. Accordingly, we conclude that the circuit court did not abuse its discretion
in denying petitioner’s motion for correction of illegal sentence.
For the foregoing reasons, we affirm the circuit court’s April 4, 2017, order denying
petitioner’s motion for illegal correction of sentence.
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West Virginia Code § 61-11-18(c) provides that “[w]hen it is determined, as provided in
section nineteen of this article [West Virginia Code § 61-11-19], that such person shall have been
twice before convicted in the United States of a crime punishable by confinement in a penitentiary,
the person shall be sentenced to be confined in the state correctional facility for life.”
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Affirmed.
ISSUED: May 18, 2018
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Justice Elizabeth D. Walker
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