                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



State of West Virginia,                                                           FILED
Plaintiff Below, Respondent                                                   November 3, 2017
                                                                               EDYTHE NASH GAISER, CLERK
vs) No. 16-0982 (Wood County 10-F-58)                                          SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA

Martin R.,

Defendant Below, Petitioner



                              MEMORANDUM DECISION
         Petitioner Martin R.,1 pro se, appeals the September 26, 2016, order of the Circuit Court of
Wood County denying (1) his motion for reduction of sentence pursuant to Rule 35(b) of the West
Virginia Rules of Criminal Procedure; and (2) his motion for appointment of counsel and an
evidentiary hearing. Respondent State of West Virginia (“the State”), by counsel Robert L. Hogan,
filed a summary response in support of the circuit court’s order. Petitioner filed a reply.

        The 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.

        On July 30, 2010, petitioner pled guilty to two counts of sexual abuse by a parent and one
count of first-degree sexual abuse. The victim was petitioner’s minor daughter, who was between
five and seven years old at the time of the offenses.2 At the plea hearing, petitioner stated that he
was pleading guilty because he did not “want [his] little girl to come back to [c]ourt no more.” The
State likewise proffered that, though the victim was ready and able to testify if necessary, a plea
bargain was not only in the public interest, but also “in the best interest of the juvenile female
       1
       Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993); State v.
Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990).
       2
       We take judicial notice of the record in petitioner’s prior appeal in State v. Martin R., No.
15-0580, 2016 WL 1456077 (W.Va. April 12, 2016) (memorandum decision).

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victim.” Accordingly, petitioner asked the circuit court to accept a plea agreement, whereby he
would plead guilty to three counts of a thirteen-count indictment and the State would dismiss the
remaining charges.3 The circuit court accepted the plea agreement and petitioner’s guilty pleas,
finding that he pled guilty “voluntarily, intelligently, and knowingly.”

        At an October 12, 2010, sentencing hearing, petitioner sought alternative sentencing in the
form of home incarceration or probation. However, the victim’s mother made a statement in
opposition to petitioner’s request for probation.4 The victim’s mother explained that there would
be a possibility of a chance meeting with petitioner at locations such as Wal-Mart and the grocery
store and the victim “would have to re-live seeing his face and what happened to her again.” The
victim’s mother noted that the victim was in counseling and suffered the effects of abuse such as
nightmares and bedwetting. The victim’s mother concluded her statement by stating that “the
maximum sentence should be imposed.”

        At the hearing’s conclusion, the circuit court denied petitioner’s request for alternative
sentencing, finding that it was “in the best interest of the community and the State to deny any
probation or other forms of alternative sentencing.” Accordingly, the circuit court sentenced
petitioner to ten to twenty years of incarceration for each count of sexual abuse by a parent and five
to twenty-five years of incarceration for one count first-degree sexual abuse and ordered that
petitioner serve his sentences consecutively.

        By order entered May 15, 2015, the circuit court resentenced petitioner for purposes of
appeal. In State v. Martin R. (“Martin R. I”), No. 15-0580, 2016 WL 1456077, at *1 (W.Va. April
12, 2016) (memorandum decision), this Court affirmed petitioner’s convictions and sentences,
finding that petitioner provided the factual basis for his guilty pleas at the plea hearing by
testifying that “[he] had sexual intercourse or incest—or contact with the victim.”

        Following this Court’s denial of a petition for a rehearing on June 2, 2016, petitioner filed a
motion for reduction of sentence in the circuit court, pursuant to Rule 35(b) of the West Virginia
Rules of Criminal Procedure, on September 16, 2016.5 In his motion, petitioner asserted that the
victim is willing to testify in court and recant her allegations of abuse. Petitioner attached exhibits
showing the completion of several classes during his incarceration.6 Petitioner also filed a motion

       3
        The indictment charged petitioner with the following offenses: two counts of first-degree
sexual assault, five counts of sexual abuse by a parent, four counts of first-degree sexual abuse, one
count of incest, and one count of a parent allowing sexual abuse to be inflicted upon a child.
       4
         Petitioner and the victim’s mother did not live together. Petitioner saw the victim during
his visitation with her.
       5
         Rule 35(b) provides that a defendant may file a motion for reduction of sentence “within
120 days after the entry of a mandate by the supreme court of appeals upon affirmance of a
judgment of a conviction.”
       6
         Petitioner attached certificates of completion for Sex Offender Program Phrase I and
(continued . . .)
                                                  2
for appointment of counsel and an evidentiary hearing. By order entered on September 26, 2016,
the circuit court denied petitioner’s motions based on its “consideration” of them.

       Petitioner appeals from the circuit court’s September 26, 2016, order denying his Rule
35(b) motion for reduction of sentence. In syllabus point 1 of State v. Marcum, 238 W.Va. 26, 792
S.E.2d 37 (2016), we set forth the pertinent 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).

In syllabus point 2 of Marcum, we held that that Rule 35(b) “only authorizes a reduction in
sentence” and “is not a mechanism by which defendants may challenge their convictions and/or
the validity of their sentencing.” Id. at 27; 792 S.E.2d at 38.

        On appeal, petitioner contends that the circuit court (1) improperly denied his motion for
appointment of counsel and an evidentiary hearing because the victim is willing to testify and
recant her allegations of abuse; (2) failed to consider his efforts at rehabilitation during his
incarceration; and (3) failed to make sufficient findings to allow meaningful appellate review of its
denial of his Rule 35(b) motion. The State counters that the circuit court properly denied
petitioner’s Rule 35(b) motion and that the representations made in petitioner’s Rule 35(b) motion
are contradicted by his previous statements and/or testimony.

        First, we agree with the State and find that the plea and sentencing hearing transcripts not
only contradict the representations made in petitioner’s Rule 35(b) motion, but also show that his
motion for appointment of counsel and an evidentiary hearing was without merit. See State v.
King, 205 W.Va. 422, 425, 518 S.E.2d 663, 666 (1999) (finding that a hearing on a Rule 35(b)
motion is not required where the record establishes that there were adequate hearings when the
defendant pled guilty and when he was sentenced). Petitioner stated at the plea hearing that he
wanted to spare the victim the ordeal of testifying in court and, once under oath, provided the
factual basis for his guilty pleas by testifying that “[he] had sexual intercourse or incest—or
contact with the victim.” Martin R. I, 2016 WL 1456077, at *1. At the sentencing hearing, the
victim’s mother opposed petitioner’s request for probation and gave a thorough explanation of the
effect that the abuse was having on the victim. Therefore, given the adequacy of the plea and
sentencing hearings, we find that the circuit court was able to decide petitioner’s Rule 35(b)
motion without appointment of counsel or a hearing.
        We address petitioner’s remaining two assignments of error together. In sum, petitioner
asks for a remand for findings of fact and conclusions of law because we cannot meaningfully

Crime Victims Awareness among other classes.

                                                 3
review whether the circuit court gave due “consideration” to his rehabilitation efforts while
incarcerated. Petitioner points out that in State v Redman, 213 W.Va. 175, 178, 578 S.E.2d 369,
372 (2003) (per curiam), we found that a trial court’s ruling pursuant to Rule 35(b) must contain
sufficient findings of fact and conclusions of law to permit meaningful appellate review. However,
rather than the lack of findings, we find that the crux of petitioner’s complaint is that his motion for
reduction of sentence was so well-supported that no court could deny it. In essence, petitioner
invites us not to believe the circuit court’s statement that it gave his motion due “consideration.”
This, we decline to do.

         In Redman, we rejected related assignments of error alleging that there was a lack of
specific findings and that the trial court failed to fully consider the defendant’s rehabilitation
efforts, explaining as follows:

       Clearly, a trial judge needs to consider the issue of rehabilitation in making its
       sentencing decisions. But those decisions are not to be made in a vacuum separate
       from the relevant facts that weigh on this serious issue and its attendant
       consequences on the community at large. To submit, as does Appellant, that the
       trial court utterly failed to consider rehabilitation and failed to explain why
       rehabilitation was not an option is to ignore the cumulative record in this case.

213 W.Va. at 180-81, 578 S.E.2d at 374-75; see Head, 198 W.Va. at 305, 480 S.E.2d at 514
(Cleckley, J., concurring) (stating that “there are many perfectly legitimate reasons for summary
rejection of a Rule 35(b) motion, despite the presentation of an otherwise persuasive or
sympathetic case by a defendant”). In affirming the circuit court’s denial of the Rule 35(b) motion
in Redman, we found that, while the defendant contended that the court’s findings were
inadequate, he conceded that the facts of that case were not in dispute. 213 W.Va. at 178, 578
S.E.2d at 372.

        Similarly, in the instant case, petitioner does not dispute the State’s factual recitation for
purposes of this appeal. 7 As we have already explained, the plea and sentencing hearing
transcripts not only contradict the representations made in petitioner’s Rule 35(b) motion, but also
show the seriousness of petitioner’s crimes and their long-lasting effect on the minor victim.
Therefore, we conclude that, under the facts and circumstances of this case, the circuit court did
not abuse its discretion in denying petitioner’s Rule 35(b) motion for reduction of sentence. See
Head, 198 W.Va. at 301, 480 S.E.2d at 510 (finding that the standard for reviewing Rule 35(b)
rulings continues “the deference we have traditionally accorded trial courts in matters of
sentencing”); Syl. Pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982) (holding 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”).


       7
         Petitioner states that he is challenging the State’s version of the facts in a separate habeas
corpus proceeding in the circuit court. See Marcum, 238 W.Va. at 31 n.10, 792 S.E.2d at 42 n.10
(noting that a defendant may challenge the validity of his convictions in a habeas proceeding).

                                                   4
        For the foregoing reasons, we affirm the circuit court’s September 26, 2016, order denying
(1) petitioner’s motion for reduction of sentence; and (2) his motion for appointment of counsel
and an evidentiary hearing.

                                                                                       Affirmed.


ISSUED: November 3, 2017

CONCURRED IN BY:

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




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