                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS


State of West Virginia, Plaintiff Below,                                                 FILED
Respondent                                                                         November 24, 2014
                                                                                   RORY L. PERRY II, CLERK
                                                                                 SUPREME COURT OF APPEALS
vs) No. 13-1159 (Fayette County 01-F-108)                                            OF WEST VIRGINIA


Orville Massey Jr., Defendant Below,
Petitioner


                                  MEMORANDUM DECISION
        Petitioner Orville Massey Jr., pro se, appeals the Circuit Court of Fayette County’s
October 22, 2013, order denying his “Motion for Correction of Sentence.” The State of West
Virginia, by counsel Christopher Dodrill, filed a response, to which petitioner filed a reply. On
appeal, petitioner argues that (1) the circuit court erred in finding that his motion was untimely;
(2) the circuit court erroneously relied on his election of sentencing; and (3) the provisions West
Virginia Code § 2-2-8 were not available to him at his sentencing.1

        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 September of 2001, petitioner was indicted on 106 counts of rape in violation of West
Virginia Code § 61-2-15 (Repealed), 86 counts of third degree sexual assault in violation of West
Virginia Code § 61-8B-5, and 48 counts of second degree sexual assault in violation of West
Virginia Code § 61-8B-4. These acts occurred between January of 1972 and December of 1981.2
Prior to trial, the State dismissed the first thirty-four counts of the indictment for lack of
jurisdiction because those events allegedly occurred while petitioner lived in Georgia.

       1
           Petitioner argues that the doctrine of plain error applies to all of his assignments of error.
       2
         In 1976, the West Virginia Legislature enacted article 8B, chapter 61, of the Code,
entitled “Sexual Offenses.” The Sexual Offenses Act included the felony offenses of first, second
and third degree sexual assault and various definitions. In enacting article 8B, a number of prior,
related provisions were repealed, including West Virginia Code § 61–2–15, which addressed the
crime of “rape.” Although subsequently amended, the section concerning first degree sexual
assault relevant to the case now before us was found in West Virginia Code § 61–8B–3 (1976).

                                                         1
­
        In February of 2002, a jury found petitioner guilty of 14 counts of first degree sexual
assault in violation of West Virginia Code § 61-8B-3(a), 86 counts of third degree sexual assault
in violation of West Virginia Code § 61-8B-5(a), and 48 counts of second degree sexual assault
in violation of West Virginia Code § 61-8B-4. Prior to petitioner’s sentencing hearing, he filed
an election of sentencing pursuant to West Virginia Code § 2-2-8,3 as follows: (1) for Counts 35­
48, he elected to be sentenced pursuant to the current version of West Virginia Code § 61-8B-3;
(2) for Counts 49-106, he elected to be sentenced pursuant to the current version of West
Virginia Code § 61-8B-5; (3) for Counts 107-192, he elected to be sentenced pursuant to the
former version of West Virginia Code § 61-8B-5, which was in effect at the time of the alleged
offenses;4 and (4) for Counts 193-240, he elected to be sentenced pursuant to the former version
of West Virginia Code § 61-8B-4, which was in effect at the time of the alleged offenses.

         Thereafter, the circuit court sentenced petitioner to a term of incarceration of fifteen to
thirty-five years for each conviction in Counts 35-48; one to five years for each conviction in
Counts 49-106; one to five years for each conviction in Counts 107-192; and five to ten years for
each conviction in Counts 193-240. The circuit court ordered that each conviction within each
group was to run concurrently to one another, while each of the four groups of concurrent
sentences were to be served consecutively to one another.

        By order entered on May 10, 2005, the circuit court resentenced petitioner so that he could
file a direct appeal.5 In April of 2013, petitioner filed a “Motion for Correction of Sentence,” in
which he argued that his individual sentences of fifteen to thirty-five years for counts 35-48
should be reduced to ten to twenty years. In support of his motion, petitioner stated that he should
have been sentenced pursuant to the 1976 version West Virginia Code § 61-8B-3, not the 2000
version, which was in effect at the time of his sentencing. By order entered on October 22, 2013,
the circuit court held that petitioner’s motion was untimely because it was not filed within 120
days of sentencing pursuant to Rule 35(b) of the West Virginia Rules of Criminal Procedure. The
circuit court also held that petitioner was properly sentenced according to his election of
sentencing and the applicable law. It is from this order that petitioner now appeals.
       3
           West Virginia Code § 2-2-8 states that

                 [t]he repeal of a law, or its expiration by virtue of any provision contained
                 therein, shall not affect any offense committed, or penalty or punishment
                 incurred, before the repeal took effect, or the law expired, save only that
                 the proceedings thereafter had shall conform as far as practicable to the
                 laws in force at the time such proceedings take place, unless otherwise
                 specially provided; and that if any penalty or punishment be mitigated by
                 the new law, such new law may, with the consent of the party affected
                 thereby, be applied to any judgment pronounced after it has taken effect.
       4
       The penalties in effect at the time of the alleged offenses and the current penalties in the
subsequent amendments are the same.
       5
           This Court refused petitioner’s direct appeal by order entered on January 11, 2006.

                                                       2
­
        On appeal, petitioner alleges three assignments of error. First, petitioner challenges the
circuit court’s order denying his “Motion for Correction of Sentence,” filed pursuant to Rule 35(a)
of the West Virginia Rules of Criminal Procedure, as untimely. For Rule 35 motions, we apply
the following 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).

Syl., State v. Allen, 224 W.Va. 444, 686 S.E.2d 226 (2009).

        Petitioner argues that it was plain error for the circuit court to reclassify his motion as one
filed pursuant to Rule 35(b) when it was filed pursuant to Rule 35(a). While the circuit court
reclassified petitioner’s motion as a Rule 35(b) motion, petitioner’s argument is moot because
the circuit court also ruled on his substantive arguments. “‘Courts will not ordinarily decide a
moot question.’ Pt. 1, syllabus, Tynes v. Shore, 117 W.Va. 355 [185 S.E. 845] [(1936)]. Syllabus
Point 1, State ex rel. Hedrick v. Board of Comm'rs of County of Ohio, 146 W.Va. 79, 118 S.E.2d
73 (1961).” Syl. Pt. 1, Velogol v. City of Weirton, 212 W.Va. 687, 575 S.E.2d 297 (2002).

       Petitioner’s second and third assignments of error are substantially related and will be
addressed together. Petitioner alleges that it was plain error for the circuit court to conclude that
“the provisions of West Virginia Code § 2-2-8 were not lawfully available to [petitioner] at the
time of sentencing.” Petitioner also argues that West Virginia Code § 2-2-8 entitles him to
choose whether he wants to be sentenced for Counts 35-48 of the indictment under West
Virginia Code § 61-8B-3(1976), the first amendment to the statute in effect after the time of the
commission of the crime, or under the subsequent revised language of West Virginia Code § 61­
8B-3 (1991).6

        This Court has stated that, “[t]o trigger application of the ‘plain error’ doctrine, there
must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects
the fairness, integrity, or public reputation of the judicial proceedings.” Syl. Pt. 7, State v. Miller,
194 W.Va. 3, 459 S.E.2d 114 (1995). While this Court agrees with petitioner’s argument that the
circuit court erred in finding that “the provisions of West Virginia Code § 2-2-8 were not
lawfully available to [petitioner] at the time of sentencing,” the circuit court in fact correctly
applied West Virginia Code 2-2-8 during petitioner’s sentencing. Therefore, petitioner failed to
meet the plain error test because his substantial rights were not affected.


       6
        The penalties in effect during the 1991 version of the statute and the 2000 version were
the same. West Virginia Code 61-8B-3 (2000) was in effect during petitioner’s sentencing.
                                                   3
­
        Petitioner’s argument ignores the fact that he was sentenced pursuant to the clear
directive of West Virginia Code § 2-2-8, which states in part, “that if any penalty or punishment
be mitigated by the new law, such new law may, with the consent of the party affected thereby,
be applied to any judgment pronounced after it has taken effect.” Here, petitioner was initially
charged on Counts 35-48 pursuant to West Virginia Code § 61-2-15 (Repealed), which carried a
potential penalty of life imprisonment. Importantly, petitioner was convicted in 2002, during
which time the applicable statute in effect provided for a term of incarceration of fifteen to thirty-
five years. See West Virginia Code § 61-8B-3 (2000). Therefore, pursuant to the clear directive
of West Virginia Code § 2-2-8, petitioner was entitled to elect his sentence between West
Virginia Code § 61-2-15 (Repealed), and West Virginia Code § 61-8B-3 (2000). The record on
appeal is clear that petitioner elected to be sentenced pursuant to West Virginia Code § 61-8B-3
(2000), which was in effect at the time of his conviction. Furthermore, the record is clear that
petitioner was fully advised of his right to elect and that he was given the opportunity to exercise
that right. See Syl. Pt. 3, State ex rel. Arbogast v. Mohn, 164 W.Va. 6, 260 S.E.2d 820 (1979)
(“When a criminal defendant is entitled to elect the law under which he is to be sentenced, it
must appear on the record that he has been fully advised of his right to elect and he must be
given an opportunity to exercise that right by the court.”). For these reasons, we find no error.

       For the foregoing reasons, the circuit court’s October 22, 2013, order denying petitioner’s
motion is hereby affirmed.



                                                                                            Affirmed.

ISSUED: November 24, 2014

CONCURRED IN BY:

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




                                                      4
­
