                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                         FILED
                                                                                    April 16, 2013
                                                                               RORY L. PERRY II, CLERK
vs) No. 11-1323 (Ohio County 10-F-101)                                       SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

Ray A. Metz,

Defendant Below, Petitioner


                                 MEMORANDUM DECISION

       Petitioner Ray A. Metz, by counsel Brent Clyburn, appeals the Circuit Court of Ohio
County’s order entered on August 19, 2011, denying petitioner’s motion for reduction of
sentence. Respondent State of West Virginia, by counsel Marland Turner, has filed its response
in support of the circuit court’s decision.

       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.

        Petitioner was indicted on six counts of fraud in connection with an access device and
two counts of forgery. Petitioner pled guilty to two counts of forgery and was sentenced to not
less than one nor more than ten years of incarceration on each count, to run consecutively.
Petitioner filed a motion for reduction of sentence pursuant to Rule 35(b) of the West Virginia
Rules of Criminal Procedure. The circuit court denied his motion for reduction of sentence, and
petitioner appeals.

        On appeal, petitioner argues that his Rule 35(b) motion should have been granted because
he has been a model prisoner, has two young children, the crimes were non-violent, and the
sentence is disproportionate. Further, petitioner argues that the circuit court did not meaningfully
consider his motion as it was denied one day after it was filed and the order lacked factual
findings and legal conclusions. The State argues these sentences are not subject to appellate
review because they are within statutory limits and not based on any impermissible factor. The
State also argues that the circuit court referred to its initial findings because petitioner failed to
present any new evidence justifying relief under Rule 35. Additionally, the State argues that
petitioner’s argument that the circuit court failed to adequately review the motion is unsupported.

       This Court has adopted 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


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       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). Additionally, this Court has
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.” Syl. Pt. 4, State v. Goodnight,
169 W.Va. 366, 287 S.E.2d 504 (1982).

        Our review of the record reflects no clear error or abuse of discretion by the circuit court.
Additionally, the sentence imposed is within statutory limits and not based on any impermissible
factors. Accordingly, we affirm.


                                                                                          Affirmed.


ISSUED: April 16, 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




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