                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia, Plaintiff Below,                                            FILED
Respondent                                                                     September 22, 2014
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs) No. 13-1207 (Marion County 10-F-94)                                          OF WEST VIRGINIA


John H., Defendant Below,
Petitioner


                                 MEMORANDUM DECISION

       Petitioner John H., by counsel Michael Safcsak, appeals the Circuit Court of Marion
County’s October 23, 2013, order denying his motion for reconsideration of sentence made
pursuant to Rule 35 of the West Virginia Rules of Criminal Procedure.1 The State, by counsel
Laura Young, filed a response. On appeal, petitioner alleges that the circuit court erred in denying
his motion because he should have received probation or alternative sentencing, and further
challenges the sentence imposed, generally.

        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.

        During the June 2010 term of the Marion County Grand Jury, petitioner was indicted on
several sexual offenses involving children, including sexual assault in the third degree, two counts
of sexual abuse by a parent or guardian, sexual assault in the first degree, and sexual abuse in the
first degree. After numerous continuances in the criminal proceedings, petitioner retained counsel
in late 2012. Thereafter, in February of 2013, a plea agreement was reached whereby petitioner
entered Alford pleas to one count of sexual assault in the third degree and one count of sexual
abuse in the first degree.2 The remaining counts of the indictment were dismissed, a pre-sentence

       1
        In keeping with this Court’s policy of protecting the identity of minors and the victims of
sexual crimes, petitioner will be referred to by his last initial throughout the memorandum
decision. See, e.g., State v. Larry A.H., 230 W. Va. 709, 742 S.E.2d 125 (2013); State v. Edward
Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
       2
        North Carolina v. Alford, 400 U.S. 25 (1970). Under Alford, “[a]n accused may
voluntarily, knowingly and understandingly consent to the imposition of a prison sentence even
though he is unwilling to admit participation in the crime, if he intelligently concludes that his
                                                   1
­
investigation was ordered, and petitioner was permitted to seek and introduce psychiatric
evidence at sentencing.

        In June of 2013, petitioner was sentenced to a term of incarceration of five to twenty-five
years for his conviction of sexual abuse in the first degree and a term of incarceration of one to
five years for his conviction of sexual assault in the third degree, said sentences to run
consecutively. Additionally, the circuit court ordered that petitioner comply with twenty-five
years of supervised release following his incarceration. Thereafter, petitioner, by counsel, filed a
motion to reconsider his sentence under Rule 35 of the West Virginia Rules of Criminal
Procedure, which the circuit court denied by order entered on October 22, 2013. It is from this
order that petitioner appeals.

       In regard to motions made 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.”
       Syllabus Point 1, State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).

Syl. Pt. 1, State v. Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010). Upon our review, we find no
abuse of discretion in the circuit court’s denial of petitioner’s motion. In support of his
assignment of error, petitioner simply asserts that “the State’s case [against him] was weak[;]”
that a grandmother’s testimony regarding one of the victims undergoing therapy as a result of the
abuse was possibly false; that he has been a model inmate; and that if released, he would have the
support of his family and employer. However, the Court finds no merit to petitioner’s argument
that he should be entitled to alternative sentencing.

        We have previously held that “‘[t]he decision of a trial court to deny probation will be
overturned only when, on the facts of the case, that decision constituted a palpable abuse of
discretion.’ Syl. Pt. 2, State v. Shafer, 168 W.Va. 474, 284 S.E.2d 916 (1981).” Syl. Pt. 3, State v.
Shaw, 208 W.Va. 426, 541 S.E.2d 21 (2000). Upon our review, the Court finds no abuse of
discretion in the circuit court’s denial of petitioner’s request for probation or alternative
sentencing. West Virginia Code § 62-12-3 grants circuit courts discretion in ordering a defendant
to serve a sentence on probation. The record in this matter is replete with facts supporting the
circuit court’s sentence, including that petitioner originally faced a sentence of 51 to 170 years of
incarceration if convicted of all the charges with which he was indicted. Further, the Court notes
that petitioner perpetrated sexual crimes against two different minors. As such, we find no abuse
of discretion in denying petitioner probation or home incarceration.



interests require a guilty plea and the record supports the conclusion that a jury could convict
him.” Kennedy v. Frazier, 178 W.Va. 10, 12, 357 S.E.2d 43, 45 (1987).
                                                   2
        As to petitioner’s general challenge of the sentence imposed, the Court notes 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). Petitioner was sentenced to a term of incarceration of five to twenty-five years for his
conviction of sexual abuse in the first degree and a term of incarceration of one to five years for
his conviction of sexual assault in the third degree. A review of the record shows that petitioner
was sentenced to the statutory maximum for these crimes, pursuant to West Virginia Code §§ 61­
8B-7(c) and 61-8B-5(b), respectively. Further, the record shows that the circuit court did not rely
on any impermissible factors in imposing sentence. As such, petitioner’s sentences are not subject
to review on appeal.

       For the foregoing reasons, the circuit court’s October 23, 2013, order denying petitioner’s
motion is hereby affirmed.


                                                                                         Affirmed.


ISSUED: September 22, 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




                                                    3
­
