STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia, FILED
Plaintiff Below, Respondent November 4, 2020
EDYTHE NASH GAISER, CLERK
vs.) No. 19-0810 (Barbour County 18-F-42) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
William B. Padgett,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner William B. Padgett, self-represented litigant, appeals the Circuit Court of
Barbour County’s July 12, 2019, order denying his motion for a reduction of his sentence under
Rule 35(b) of the West Virginia Rules of Criminal Procedure. The State of West Virginia, by
counsel Lara K. Bissett, filed a response. On appeal, petitioner argues that the circuit court erred
in denying his Rule 35(b) motion for a reduction of sentence.
This 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.
Petitioner was indicted in Barbour County criminal action number 18-F-42 on four counts
of Failure to Register or Provide Notice of Change in Sex Offender Registry Information—
Second or Subsequent Offense in May of 2018. In October of 2018, petitioner and the State
entered into a plea agreement, under which petitioner pled guilty to one count of Failure to
Register or Provide Notice of Change in Sex Offender Registry Information—Second or
Subsequent Offense in exchange for the dismissal of the remaining counts. The court sentenced
petitioner in February of 2019 to an indeterminate term of ten to twenty-five years of
incarceration, and it further ordered this sentence to run concurrently with a one- to five-year
sentence imposed following his conviction in a separate criminal matter, number 15-F-55, for
Failure to Register or Provide Notice of Change in Sex Offender Registry Information—First
Offense.
1
In March of 2019, petitioner, without counsel, filed a motion for a reduction of his
sentence under Rule 35(b) of the West Virginia Rules of Criminal Procedure. Petitioner then
refiled the same motion in May of 2019. In his motion, petitioner requested that his sentence in
18-F-42 be modified such that he could be released on parole. Petitioner argued that the parole
board had granted him parole in November of 2018 under case number 15-F-55 contingent upon
his securing an approved home plan. Petitioner claimed that his sentence in 18-F-42 was keeping
him from being released and stated that he would be willing to go to alcohol counseling and
“complete any other task assigned” to him if the circuit court were to allow him to be released on
parole. Lastly, petitioner noted that he failed to register as a sex offender but did not commit a
new sexual offense.
By order entered on July 12, 2019, the circuit court denied petitioner’s Rule 35(b) motion.
The circuit court found that petitioner failed to raise any pertinent issues which were not
considered by the circuit court at the time of sentencing. The circuit court further found that there
had been no change in circumstances warranting a reduction or reconsideration of the sentence
imposed and that petitioner was not a fit candidate for reconsideration of his sentence. Petitioner
appeals the July 12, 2019, order denying his Rule 35(b) motion.
This Court has established the following standard of review for a circuit court’s ruling on
Rule 35(b) motions:
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 the circuit court abused its discretion in denying his Rule
35(b) motion. Specifically, petitioner argues that his crime was not one of moral turpitude and the
“situation called for the granting of the motion.” 1 Petitioner states that he had been granted parole,
1
Petitioner relies upon this Court’s holding in State v. Arbaugh, 215 W. Va. 132, 595 S.E.2d
289 (2004), to support his argument that his Rule 35(b) motion should have been granted because
his crime was not one of moral turpitude. However, our holding in Arbaugh is easily
distinguishable as the petitioner in that case was a juvenile offender with an extensive history of
having been abused. We held that the circuit court abused its discretion in denying the then-fifteen-
year old’s Rule 35(b) motion wherein he requested to attend a renowned sexual offender treatment
program. Petitioner provides absolutely no evidence indicating that his case is in any way similar
to that of Arbaugh. Further, we subsequently noted that
[t]his Court’s decision in Arbaugh did not create any new standards, guidelines, or
requirements to be followed by the circuit courts of this State as contended by the
(continued . . .)
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had obtained a place to live upon his release, was willing to go to counseling, and had several jobs
lined up. Petitioner also claims that the circuit court could have held his motion in abeyance until
the circuit court was “satisfied that his release would be acceptable.” We find petitioner’s
arguments to be without merit.
Here, petitioner’s argument centers on the asserted facts that he did not commit another
sexual offense, that he had already been granted parole, and that he was willing to participate in
counseling and other services as directed. At the outset, however, we note that petitioner
mistakenly argues that he was granted parole under case number 15-F-55. In actuality, the parole
board merely deferred its decision to allow petitioner time to obtain an approved home plan. While
petitioner states that he has a place to live should he be released on parole, he provides no evidence
establishing that this living arrangement has been approved. Moreover, the circuit court found that
petitioner failed to raise any issues that were not considered at the time of sentencing. Indeed,
petitioner offered essentially no information relevant to any events that occurred after sentencing
to support his plea for leniency. We have previously held that, in considering a defendant’s Rule
35(b) motion, “circuit courts generally should consider only those events that occur within the
120–day filing period.” Syl. Pt. 3, in part, State v. Marcum, 238 W. Va. 26, 27, 792 S.E.2d 37, 38,
(2018) (emphasis added); see also id. at 32, 792 S.E.2d at 43 (“It is clear from the record that the
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.”). Petitioner did not argue nor cite to any
portion of the record showing any change in circumstances or remedial efforts made by him
following his sentencing in February of 2019. Rather, petitioner essentially asks this Court to find
that the circuit court abused its discretion in imposing the sentence set forth by statute. 2 Lastly,
petitioner provides no authority to support his argument that the circuit court should have held his
motion in abeyance. Accordingly, we conclude that the circuit court did not abuse its discretion in
denying petitioner’s Rule 35(b) motion for a reduction of sentence.
appellant in his brief before this Court. Arbaugh was a per curiam decision decided
by this Court upon application of existing precedent and was confined to the very
specific facts of that case.
State v. Georgius, 225 W. Va. 716, 721, 696 S.E.2d 18, 23 (2010). Accordingly, under the
circumstances of this case, we find that any reliance upon Arbaugh is misplaced.
2
West Virginia Code § 15-12-8(c) provides that
Any person required to register for life pursuant to this article who knowingly
provides materially false information or who refuses to provide accurate
information when so required by the terms of this article, or who knowingly fails
to register or knowingly fails to provide a change in any required information as
required by this article, is guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility for not less than one year nor more than
five years. Any person convicted of a second or subsequent offense under this
subsection is guilty of a felony and, upon conviction thereof, shall be imprisoned in
a state correctional facility for not less than ten nor more than twenty-five years.
(Emphasis added).
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For the foregoing reasons, the circuit court’s July 12, 2019, order denying petitioner relief
under Rule 35(b) is hereby affirmed.
Affirmed.
ISSUED: November 4, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
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