                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS

State of West Virginia,
Plaintiff Below, Respondent                                                        FILED
                                                                               October 23, 2017
vs) No. 17-0029 (Logan County 15-F-158)                                           RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
Jonathan Means,

Defendant Below, Petitioner



                              MEMORANDUM DECISION
       Petitioner Jonathan Means, by counsel Dwayne J. Adkins, appeals the Circuit Court of
Logan County’s December 14, 2016, order denying his Rule 35(b) motion for reduction of
sentence. The State, by counsel Gordon L. Mowen II, filed a response. Petitioner filed a reply.
On appeal, petitioner argues that the circuit court abused its discretion in denying his Rule 35(b)
motion and that his sentence is disproportionate to the crime he committed.

        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, this 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 September 16, 2015, petitioner was indicted on one count of first-degree robbery by
the presenting of a firearm and one count of felony destruction of property. Petitioner entered
into a plea agreement with the State whereby he agreed to plead guilty to first-degree robbery
with no finding of the use of any firearm in exchange for the dismissal of the felony destruction
of property count. The State further agreed to recommend a period of imprisonment of sixteen
years.

        On December 29, 2015, petitioner was sentenced to thirty years of incarceration in the
penitentiary. Shortly thereafter, he filed a “Motion for Reconsideration” pursuant to Rule 35(b)
of the West Virginia Rules of Criminal Procedure. Petitioner urged the circuit court to impose
the sixteen-year sentence recommended by the State and informed the court of new information
related to petitioner’s substance abuse treatment. Petitioner filed a supplement to his motion
setting forth policy reasons for reducing his sentence, and then filed a second supplement setting
forth specific drug treatment, work, and restitution plans. The motion was set for hearing but was
continued several times. Ultimately, without holding a hearing, the circuit court denied
petitioner’s motion on December 14, 2016, after consideration of “the magnitude of the
offense[,]” “the victim’s impact statement[,]” and “other matters surrounding this situation[.]” It
is from this order that petitioner appeals.

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        On appeal, petitioner first argues that the circuit court abused its discretion in denying his
Rule 35(b) motion after considering “other matters surrounding this situation” and without
holding a hearing. Petitioner argues that the “denial order references unknown and undefined
matters[,]” which prevents meaningful appellate review. Petitioner further argues that the circuit
court should have held a hearing on his motion. Petitioner’s second assignment of error is that
his sentence is disproportionate to his crime.

      We have previously established the following standard of review regarding orders that
deny Rule 35 motions:

                “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).

Syl. Pt. 1, State v. Marcum, 238 W.Va. 26, 792 S.E.2d 37 (2016).

        To begin, petitioner’s arguments concerning the proportionality of his sentence are
outside the scope of appeal of a ruling on a Rule 35(b) motion. In Marcum, we held that “Rule
35(b) is not a mechanism by which defendants may challenge their convictions and/or the
validity of their sentencing.” 238 W.Va. at --, 792 S.E.2d at 38, Syl. Pt. 2, in part. Rule 35(b)
may not be used to challenge the validity of a sentence, “whether raised in the Rule 35(b) motion
or in the appeal of the denial of the Rule 35(b) motion.” 238 W.Va. at --, 792 S.E.2d at 42.
Instead, “challenges to convictions or the validity of sentences should be made through a timely,
direct criminal appeal before this Court will have jurisdiction to consider the matter.” Id.
Because petitioner’s assignment of error challenging his sentence exceeds the scope of a Rule
35(b) motion, it is not properly before the Court.

       With respect to petitioner’s claim that the circuit court abused its discretion by
considering “other matters surrounding this situation[,]” we note “skeletal arguments” that are
nothing more than assertions do not preserve claims. State v. Myers, 229 W.Va. 238, 246, 728
S.E.2d 122, 130 (2012).

       An appellant must carry the burden of showing error in the judgment of which he
       complains. This Court will not reverse the judgment of a trial court unless error
       affirmatively appears from the record. Error will not be presumed, all
       presumptions being in favor of the correctness of the judgment.

Id. at 241, 728 S.E.2d at 125, Syl. Pt. 4, in part (internal quotations and citations omitted).
Petitioner does nothing more than assert that the trial court may have considered some
impermissible factor in denying his Rule 35(b) motion. Because error will not be presumed, and



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because the circuit court outlined the reasons for its denial, we find that the circuit court did not
abuse its discretion in denying petitioner’s motion.

        Finally, petitioner argues that the circuit court’s scheduling of a hearing and continuing of
that hearing created an expectation that a hearing would be held and that, under these
circumstances, to issue a ruling without conducting a hearing amounts to error. But petitioner
cites no authority to support this argument. Because petitioner has failed to demonstrate any
error in the failure to hold a hearing, we find no abuse of discretion.

        For the foregoing reasons, the circuit court’s December 14, 2016, order denying
petitioner’s Rule 35(b) motion is hereby affirmed.


                                                                                          Affirmed.

ISSUED: October 23, 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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