                                                         STATE OF WEST VIRGINIA
                                                       SUPREME COURT OF APPEALS


    State of West Virginia, Plaintiff Below,                                             FILED
    Respondent                                                                         October 21, 2013
                                                                                    RORY L. PERRY II, CLERK
                                                                                  SUPREME COURT OF APPEALS
    vs) No. 13-0272 (Kanawha County 11-F-694)                                         OF WEST VIRGINIA 


    Ernest L. Young, Defendant Below,
    Petitioner


                                                            MEMORANDUM DECISION

            Petitioner Ernest L. Young, by counsel C. Casey Forbes, appeals the Circuit Court of
    Kanawha County’s February 5, 2013 order denying his motion for reconsideration of sentence.1
    The State, by counsel Laura Young, filed a response. On appeal, petitioner alleges that the circuit
    court erred in denying his motion for reconsideration 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 is appropriate under Rule 21 of the Rules of Appellate
    Procedure.

           On June 10, 2011, Wilfred Naylor was killed in his home in Kanawha County, West
    Virginia. The victim was beaten to death with a baton. Several days later, petitioner was arrested
    for the murder. Ultimately, petitioner pled guilty to second degree murder on July 18, 2012.
    Pursuant to the plea agreement, the State recommended a term of incarceration of twenty years
    and petitioner requested alternative sentencing in the form of probation or home incarceration. On
    September 21, 2012, the circuit court sentenced petitioner to twenty years incarceration and
    denied his request for alternative sentencing. In January of 2013, petitioner filed a motion for
    reconsideration of sentence seeking home incarceration. The circuit court denied this motion by
    order entered February 5, 2013. It is from this order that petitioner appeals.

           Upon our review, the Court finds no error in the circuit court’s denial of petitioner’s
    motion for reconsideration of sentence. While the West Virginia Rules of Criminal Procedure do
    not provide for a motion for reconsideration of sentence, criminal defendants are entitled to seek a
    reduction of sentence pursuant to Rule 35(b). We have previously held that


                                                                       
           1
               Petitioner’s counsel filed the petition for appeal pursuant to Anders v. California, 386
    U.S. 738 (1967).
                                                           1


 
       “[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.” Syl.
       Pt. 1, State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).

Syl. Pt. 1, Barritt v. Painter, 215 W.Va. 120, 595 S.E.2d 62 (2004). While petitioner argues that
he should have been entitled to alternative sentencing in the form of home incarceration because
of his limited criminal history, his ample work history, and a family that depends on him for
support, the Court finds no error in the denial of petitioner’s motion. West Virginia Code § 62-
11B-4(a) provides circuit courts discretion in granting home incarceration, and we find no abuse
of that discretion in the present matter.

        West Virginia Code § 61-2-3 states that a person found guilty of second degree murder
“shall be punished by a definite term of imprisonment in the penitentiary which is not less than
ten nor more than forty years.” As noted above, petitioner was sentenced to a term of
incarceration of twenty years. We have previously held that “‘[s]entences imposed by the trial
court, if within statutory limits and if not based on some [im]permissible factor, are not subject to
appellate review.’ Syllabus Point 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).”
Syl. Pt. 3, State v. Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010). Upon our review, we find that
petitioner’s sentence is not appropriate for review because it was within the applicable statutory
limits and not based on any impermissible factor.

       For the foregoing reasons, the circuit court’s February 5, 2013 order denying petitioner’s
motion for reconsideration of sentence is hereby affirmed.


                                                                                          Affirmed.

ISSUED: October 21, 2013

CONCURRED IN BY:

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




                                                     2
