                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS



State of West Virginia,                                                              FILED
Plaintiff Below, Respondent
                                                                                  May 30, 2014
                                                                                RORY L. PERRY II, CLERK
vs) No. 13-0969 (Marion County 12-F-55)                                       SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA

James Edward C.,
Defendant Below, Petitioner


                                  MEMORANDUM DECISION

        Petitioner James Edward C.1, by counsel Matthew Delligatti, appeals the order of the
Circuit Court of Marion County entered on July 1, 2013, denying his motion for reconsideration
of his sentence. Respondent State of West Virginia, by counsel Laura Young, has filed a
response.

        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 charged with four counts of sexual assault in the first degree and ten
counts of sexual abuse by a parent, guardian, or custodian. The offenses occurred against his
daughter, his step-daughter, and his niece.2 On February 13, 2013, petitioner pled guilty to two
counts of sexual assault in the first degree and one count of sexual abuse by a parent, guardian,
or custodian. On April 16, 2013, petitioner was sentenced to fifteen to thirty-five years of
incarceration on each of the two counts of sexual assault in the first degree, and ten to twenty
years of incarceration on the count of sexual abuse by a parent, guardian, or custodian. The
sentences were ordered to run consecutively. Petitioner, acting pro se, sent a letter to the circuit
court which the court considered as a motion for reconsideration of his sentence. That motion
was denied by order dated June 28, 2013. Petitioner appeals from this denial.

       1
         “We follow our past practice in juvenile and domestic relations cases which involve
sensitive facts and do not utilize the last names of the parties.” State ex rel. West Virginia Dep’t of
Human Servs. v. Cheryl M., 177 W.Va. 688, 689 n.1, 356 S.E.2d 181, 182 n.1 (1987) (citations
omitted).
       2
         The daughter was three years old at the time of her abuse, and the niece was two years
old. The age of the step-daughter did not appear in the record.

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       Upon our review, the Court finds no error in the circuit court’s denial of petitioner’s
motion. 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

              “[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).

       On appeal, petitioner argues only that the circuit court erred in ordering that his sentences
be served consecutively. Petitioner recognizes that the sentences were within statutory limits and
not unconstitutionally disproportionate. However, petitioner argues that the circuit court did not
give adequate consideration to his deep remorse for his actions as well as the acknowledgement
he needs punishment. As petitioner is thirty-six years old, he argues that his sentences will not
allow him to become a productive member of society upon his release.

        This Court reviews sentencing orders “‘under a deferential abuse of discretion standard,
unless the order violates statutory or constitutional commands.’ Syl. Pt. 1, in part, State v. Lucas,
201 W.Va. 271, 496 S.E.2d 221 (1997).” Syl. Pt. 1, in part, State v. James, 227 W.Va. 407, 710
S.E.2d 98 (2011). 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). However, this Court has also
held as follows:

               Punishment may be constitutionally impermissible, although not cruel or
       unusual in its method, if it is so disproportionate to the crime for which it is
       inflicted that it shocks the conscience and offends fundamental notions of human
       dignity, thereby violating West Virginia Constitution, Article III, Section 5 that
       prohibits a penalty that is not proportionate to the character and degree of an
       offense.

Syl. Pt. 5, State v. Cooper, 172 W.Va. 266, 304 S.E.2d 851 (1983). Petitioner herein makes no
argument that his sentence is based upon an impermissible factor. Moreover, he specifically
notes that his sentence is not unconstitutionally disproportionate and is within statutory limits.
Based on the record, we find no error by the circuit court. Petitioner victimized at least three
children, all of whom were very young. The crimes occurred over a period of more than a
decade. Further, petitioner’s plea resulted in a much lesser sentence than the sentences for the
crimes for which he was indicted. Therefore, this Court finds no error or abuse of discretion.

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       For the foregoing reasons, we affirm.

                                                    Affirmed.


ISSUED: May 30, 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




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