                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                       FILED
                                                                               June 21, 2016
vs) No. 15-0798 (Morgan County 15-F-6)                                         RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Joseph L. Cirigliano,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
       Petitioner Joseph L. Cirigliano, by counsel Ben J. Crawley-Woods, appeals the Circuit
Court of Morgan County’s July 21, 2015, order denying his “motion for reconsideration of
sentence” under Rule 35(b) of the West Virginia Rules of Criminal Procedure.1 The State, by
counsel Zachary Aaron Viglianco, filed a response. On appeal, petitioner argues that the circuit
court made erroneous factual findings and abused its discretion when it denied his Rule 35(b)
motion for reduction of his 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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        In September of 2014, petitioner broke into the home of his elderly aunt. He brandished a
butcher knife and threatened his aunt and the elderly woman with whom she lived with bodily
harm if they did not give him money and their vehicles. In January of 2015, petitioner was
indicted on nine counts, including two counts of first-degree robbery and one count each of
burglary, grand larceny, brandishing, destruction of property, possession with the intent to
deliver-Heroin, fleeing on foot, and the simple possession of marijuana.

        In March of 2015, petitioner pled guilty to two counts of first-degree robbery pursuant to
a plea agreement. Under the terms of the plea agreement, respondent agreed to dismiss
petitioner’s remaining charges and recommend a sentence of forty years of incarceration to run

       1
        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). Accordingly, we will properly refer to petitioner’s “motion for
reconsideration of sentence” in this memorandum decision as a motion for reduction of sentence
or a Rule 35(b) motion.


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consecutively with his sentence on a previous unrelated criminal conviction. Following his guilty
plea, the circuit court sentenced petitioner to a total of sixty years of incarceration on two counts
of first-degree robbery to be served consecutively with his sentence on the previous unrelated
criminal conviction.

        In June of 2015, petitioner filed a motion for reduction of sentence under Rule 35(b) of
the West Virginia Rules of Criminal Procedure. Petitioner wrote a letter in support of his motion,
wherein he explained that he committed the robberies in furtherance of his drug addiction and
that he was “committed to turning his life around.” He requested that the circuit court “take a few
years off of [his] [sixty] year sentence” or modify the sentence to run concurrently to his
previous sentence. Petitioner stated that his family “needed him” and that he was “trying to better
himself and work through his issues.” The circuit court determined that, based on petitioner’s
previous behavior, there was a risk that he would commit another crime during a period of
probation or conditional release, that a reduction of sentence would “depreciate the seriousness”
of his crime, and his sentence was appropriate considering the facts and circumstances before it.
The circuit court denied petitioner’s motion by order dated July 21, 2015. It is from this order
that petitioner now 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 order denying petitioner’s motion.

        In the matter before us, petitioner does not challenge the correctness of his sentence but
rather asserts that the circuit court made erroneous factual findings and abused its discretion
because it could have sentenced him to the forty year sentence respondent recommended, thus
ensuring him earlier parole eligibility. We disagree. According to the record, the circuit court
correctly considered petitioner’s circumstances and determined that he was previously placed on
a period of probation and reoffended. The circuit court soundly concluded that there was a risk
that he would commit another crime during a period of probation or conditional release and that
a reduction of sentence would undermine the plea agreement and seriousness of his crime. Given
the facts of the case, we find that the circuit court did not abuse its discretion in denying
petitioner’s motion for a reduction of sentence.

      The following standard of review was articulated in Syllabus Point 1 of State v. Head,
198 W.Va. 298, 480 S.E.2d 507 (1996):




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       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.

        This Court also has held that when sentencing determinations are at issue, we “review[]
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). With these standards in mind, we proceed to consider petitioner’s
assignments of error.

        Petitioner argues that the circuit court abused its discretion when denying the motion for
reduction of his sentence because he committed the robberies in furtherance of his drug addiction
and was “committed to turning his life around.” Petitioner effectively argues that his sentence is
excessive based upon his contention that he was committed to self-improvement and that
commitment warranted a reduction in his sentence. Though petitioner’s commitment to self-
improvement is commendable, those efforts are only a small part of the picture before the circuit
court. It is clear from the record that petitioner broke into the home of his elderly aunt,
brandished a butcher knife, and threatened his aunt and the elderly woman with whom she lived
with bodily harm. Moreover, there is no evidence that the circuit court abused its discretion in
denying petitioner’s motion for reduction of sentence on the evidence presented to it.

       For the foregoing reasons, the circuit court’s July 21, 2015, order denying petitioner’s
motion is hereby affirmed.

                                                                                        Affirmed.

ISSUED: June 21, 2016

CONCURRED IN BY:

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




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