                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia, Plaintiff Below,
                                                                                      FILED
Respondent                                                                         January 11, 2016
                                                                                RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
vs) No. 15-0403 (Randolph County 04-F-42)                                          OF WEST VIRGINIA


Patrick D., Defendant Below,
Petitioner


                              MEMORANDUM DECISION
        Petitioner Patrick D., by counsel Jeremy B. Cooper, appeals the Circuit Court of
Randolph County’s April 6, 2015, order denying his motion for reduction of sentence.1 The
State, by counsel Laura Young, filed a response supporting the circuit court’s order. On appeal,
petitioner alleges that the circuit court erred in denying his motion for 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.

       In June of 2004, a Randolph County grand jury indicted petitioner on three counts of
second-degree sexual assault; four counts of sexual abuse by a parent, guardian or custodian;
three counts of incest; and four counts of third-degree sexual assault. Thereafter, petitioner
entered a guilty plea to two counts of incest. As part of the plea agreement, the State agreed to
dismiss the remaining charges.

        In June of 2005, the circuit court sentenced petitioner to consecutive terms of
incarceration of five to fifteen years for each count of incest, in violation of West Virginia Code
§ 61-8-12. The circuit court suspended the imposition of the second sentence and placed
petitioner on five years of probation upon discharge of his first sentence. In June of 2012,
petitioner fully discharged his first sentence and was placed on probation for five years.

        In May of 2013, petitioner’s probation officer filed a notice of probation violation
alleging that petitioner had contact with a minor child on multiple occasions and failed to report

       1
        Consistent with our practice in cases involving sensitive matters, we use initials to protect
the identity of the child victims in this case. See W.Va. R.A.P. 40(e)(1); State v. Edward Charles
L., 183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
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such contact in violation of the terms of his probation. Thereafter, the circuit court held a hearing
during which petitioner admitted to the violations set forth in the probation violation report. By
order entered August 12, 2013, the circuit court found, by clear and convincing evidence, that
petitioner violated the terms of his probation by having contact with a minor child on four
separate occasions and failing to advise his probation officer of the contact. As such, the circuit
court reimposed petitioner’s original sentence which was initially suspended.

        Several months later, petitioner filed a motion for reconsideration of his sentence arguing
that he should receive an alternative sentence. By order entered October 22, 2013, the circuit
court denied petitioner’s motion. However, the circuit court granted petitioner leave to “file a
motion to address any issues regarding the terms of his probation and findings in the probation
violation order.” On October 25, 2013, petitioner filed a motion to modify the circuit court’s
August 12, 2013, order arguing that “incidental” contact with a minor child was not a violation
of his probation. Following a hearing on petitioner’s motion, the circuit court denied petitioner
relief by order entered on April 10, 2014. While the circuit court ruled that petitioner failed to
report the contact, the circuit court found that there was no indication that petitioner’s contact
with the minor child was deliberate, unsupervised, or placed the child in danger. Further, the
circuit court directed petitioner to file any petition for appeal and to file a motion for
reconsideration pursuant to Rule 35(b)2 of the West Virginia Rules of Criminal Procedure in
May of 2014.3

        Petitioner filed a Rule 35(b) motion in December of 2014, arguing that “it was most
likely the intention of the [circuit] court to grant relief to [petitioner] several months ago, due to
mitigating factors that were present alongside the facts that were the basis for the revocation.” In
February of 2015, the circuit court took petitioner’s motion under advisement and directed the
Randolph County Probation Office to conduct an investigation of the procedural history and
make a recommendation. After conducting another hearing, the circuit court, by order entered on
April 5, 2015, denied petitioner’s motion finding that “repeated violations” occurred. It is from
this order that petitioner appeals.



       2
           Rule 35(b) of the West Virginia Rules of Criminal Procedure provides that:

                 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.
       3
           This Court granted petitioner’s motion to withdrawal his appeal.
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       On appeal, petitioner argues that the circuit court abused its discretion in denying his
Rule 35(b) motion. In regard to motions made pursuant to Rule 35(b), we have previously held
that

              “[i]n 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).

Syl. Pt. 1, State v. Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010). Petitioner asserts that the
circuit court’s April 5, 2015, order overruled its findings in the April 10, 2014, order. However,
we find no merit in this argument. Here, we find no indication that the circuit court’s April 10,
2014, and April 5, 2015, orders were inconsistent. Both denied petitioner relief based upon
repeated violations of the terms of his probation for failing to contact his probation officer
regarding contact with a minor child. Further, “[p]robation is a matter of grace and not a matter of
right.” Syllabus Point 1, State v. Rose, 156 W.Va. 342, 192 S.E.2d 884 (1972).” Syl. Pt. 2, State v.
Hosby, 220 W.Va. 560, 648 S.E.2d 66 (2007). As such, we find no abuse of discretion.

       For the foregoing reasons, the circuit court’s April 5, 2015, order is hereby affirmed.


                                                                                          Affirmed.

ISSUED: January 11, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




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