                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,                                                           FILED
Petitioner Below, Respondent                                                September 19, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 14-0325 (Mercer County 10-F-120 and 10-F-147)                          OF WEST VIRGINIA


Courtney S. Wallace,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
       Petitioner Courtney S. Wallace, appearing pro se, appeals the order of the Circuit Court
of Mercer County, entered on September 9, 2013, denying petitioner’s motion for
reconsideration of his sentence. Respondent State of West Virginia appears by counsel Laura
Young.

       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 order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.

        Petitioner entered a plea of guilty in June of 2010, when he was forty-one years old, to
two counts of sexual abuse in the first degree by way of information, and one count of sexual
abuse in the third degree as charged in an indictment. Upon entry of the plea, the circuit court
referred the matter for preparation of a pre-sentence report and ordered that a sex offender
evaluation be performed by Dr. Bobby Miller, pursuant to West Virginia Code § 62-12-2(e).1

       1
           West Virginia Code § 62-12-2(e) provides:

               In the case of any person who has been found guilty of, or pleaded guilty
       to, a violation of the provisions of section twelve, article eight, chapter sixty-one
       of this code, the provisions of article eight-c or eight-b of said chapter, or under
       the provisions of section five, article eight-d of said chapter, such person shall
       only be eligible for probation after undergoing a physical, mental and psychiatric
       study and diagnosis which shall include an on-going treatment plan requiring
       active participation in sexual abuse counseling at a mental health facility or
       through some other approved program: Provided, That nothing disclosed by the
       person during such study or diagnosis shall be made available to any law-
       enforcement agency, or other party without that person's consent, or admissible in
       any court of this state, unless such information disclosed shall indicate the
                                                1
Subsequent to the preparation of the pre-sentence report and the evaluation, the court entered an
order on September 4, 2010, sentencing petitioner to serve one to five years of incarceration in
the state penitentiary for each count of first-degree sexual abuse, and ninety days of confinement
in the Southern Regional Jail for the single count of third-degree sexual abuse. Upon completion
of his incarceration, petitioner is subject to twenty years of supervised release.

        Soon after entry of the sentencing order, on January 11, 2011, petitioner, by his then-
counsel, filed a motion for reconsideration of his sentence pursuant to Rule 35(b) of the West
Virginia Rules of Criminal Procedure. The court denied the motion by order entered on
September 9, 2013, having found that “there is no factual basis, information, or other reason that
would justify amending, reducing, and/or modifying [petitioner’s sentence].” It is from this order
that petitioner now appeals.

       We have said,

                “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. 3, State v. Eilola, 226 W.Va. 698, 704 S.E.2d 698 (2010).

        Subject to this standard, we consider petitioner’s five assignments of error: (1) that he
received ineffective assistance of counsel in the filing of his Rule 35(b) motion; (2) that the
circuit court engaged in judicial misconduct; (3) that he was denied due process of law; (4) that
he did not receive a hearing on a proposed alternative sentence agreement2; and (5) that he did



       intention or plans of the probationer to do harm to any person, animal, institution
       or property, in which case such information may be released only to such persons
       as might be necessary for protection of the said person, animal, institution or
       property.
       2
          Petitioner, appearing pro se, filed a motion for alternative sentence agreement on
August 29, 2013. That motion was not included in the appendix record on appeal, but it is
apparent that the circuit court had not considered it at the time that this matter became ripe for
review. The order that is the subject of this appeal specifically denies petitioner’s motion for
reconsideration of sentence filed January 11, 2011. However, because petitioner appears to argue
that his filing of the motion for alternative sentence agreement somehow affected the circuit
court’s consideration of the motion for reconsideration of sentence, we will, out of an abundance
of caution, consider that petitioner’s assignment of error encompasses his not having been
afforded a hearing on either motion.


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not receive an evaluation pursuant to West Virginia Code § 62-12-2(e) upon the filing of his
motion for reconsideration of sentence.

        In support of his argument that he received ineffective assistance of counsel, petitioner
tersely states that his counsel led him “to believe for years that [p]etitioner was going to receive
probation” and further states that counsel failed to advise petitioner that he planned to withdraw
as counsel and failed to arrange for an evaluation pursuant to West Virginia Code § 62-12-2(e).
As respondent points out, the plea documents in this case reflect petitioner’s understanding that
sentencing was in the discretion of the court. Furthermore, the record clearly shows that
petitioner received a sexual offender evaluation and a report was provided to the court. Finally,
there is no evidence supporting petitioner’s contention that counsel failed to advise him that he
planned to withdraw his representation, nor was there evidence that petitioner was harmed by
any such failure. On the record before us, we do not find that counsel was ineffective.3

        With regard to the second assignment of error, petitioner asserts that the circuit court
acted improperly by inappropriately engaging in “ex parte” communication in which the court
directed him “where and how to file this appeal.” We disagree. The communication to which
petitioner refers—a letter showing copies to petitioner, petitioner’s former counsel, the assistant
prosecuting attorney, and the Clerk of this Court—was not ex parte communication, was
prompted by petitioner’s having filed a “motion for an attempt to appeal,” and was, in fact,
providing information that was beneficial to petitioner. Petitioner was in no way harmed by this
letter.

        In support of his third assignment of error—that he was denied due process of law—
petitioner relies entirely on the arguments of his first and second assignments of error (that he
received ineffective assistance of counsel and that the circuit court engaged in misconduct). For
the reasons set forth above, we find no error.

       Turning to the fourth assignment of error (in which petitioner argues that he was not
afforded a hearing on his motion for alternative sentence agreement and, possibly, his motion for
reconsideration of sentence), we begin with State v. King, 205 W.Va. 422, 425, 518 S.E.2d 663,
666 (1999), in which we noted that a circuit court did not abuse its discretion in declining to
conduct an additional, unnecessary hearing prior to denying a defendant’s Rule 35 motion. Much
as in King, we find that the circuit court garnered all necessary evidence at the plea and
sentencing hearings. Petitioner has presented no evidence to the contrary.4



       3
          “In the West Virginia courts, claims of ineffective assistance of counsel are to be
governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel's performance was deficient under an objective
standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceedings would have been different.” Syl. Pt. 5, State
v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).
       4
       Again, we note that the circuit court had not ruled on the motion for alternative sentence
agreement at the time that this appeal came before us, and we will not prematurely consider it.
                                                 3

        Finally, we easily dispense with the fifth assignment of error, in which petitioner argues
that he did not receive an evaluation pursuant to West Virginia Code § 62-12-2(e) after he filed
his motion for reconsideration of sentence. It is evident from the record before us that upon the
entry of petitioner’s guilty plea, the circuit court ordered that petitioner undergo a sex offender
evaluation by Dr. Bobby Miller. It is further apparent that the evaluation was performed
sometime between June 16, 2010, the date of the court’s order, and August 25, 2010, on which
date Prosecuting Attorney Scott Ash wrote to advise the court that he took exception to some of
Dr. Miller’s findings. West Virginia Code § 62-12-2(e) provides that a petitioner undergo one
such evaluation before being considered for probation. Petitioner was evaluated, at most, six
months prior to the filing of his motion for reconsideration of sentence, and he has offered no
reason that the evaluation was not sufficient for its stated purpose.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: September 19, 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




However, there is no evidence in the appendix record on appeal that suggests a hearing on that
motion is necessary.
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