                                              STATE OF WEST VIRGINIA 

                                            SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                        FILED
                                                                               October 12, 2018
vs.) No. 17-0229 (Cabell County 15-F-106)                                       EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA 
Kenneth Ray Buskirk,
Defendant Below, Petitioner


                                                  MEMORANDUM DECISION
        Petitioner Kenneth Ray Buskirk, pro se, appeals the Circuit Court of Cabell County’s
February 7, 2017, order denying his Rule 35(b) motion for reduction of sentence. The State, by
counsel Benjamin F. Yancey III, filed a response. Petitioner filed a reply. On appeal, petitioner
argues that his sentence violates his plea agreement, that the State breached the plea agreement
by failing to remain silent at sentencing, that the State committed perjury at sentencing, and that
he was not advised of his right to withdraw his plea.

        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.

        In February of 2015, petitioner was indicted on four counts of destruction of property,
four counts of petit larceny, two counts of entry of a building other than a dwelling, one count of
malicious assault on a government official, one count of fleeing in a vehicle, one count of
obstructing a police officer, one count of fleeing from an officer, and one count of fleeing in a
vehicle with reckless indifference. Petitioner and the State entered into a plea agreement whereby
petitioner agreed to plead guilty to one count of destruction of property, one count of entry of a
building other than a dwelling, one count of malicious assault on a government official, and one
count of transferring stolen property in exchange for the dismissal of the other counts charged in
the indictment as well as certain other indictments and bound-over matters.1 The circuit court
accepted the parties’ agreement, adjudged petitioner guilty of the aforementioned crimes, and
sentenced him to consecutive terms of incarceration effectively totaling six to forty-five years of
incarceration.


                                                                   
       1
         Petitioner’s transferring stolen property charge was charged by information, which was
also the subject of the parties’ plea agreement.
                                                                      1

        
       On January 20, 2017, petitioner moved for reduction of his sentence pursuant to Rule
35(b) of the West Virginia Rules of Criminal Procedure.2 The circuit court denied this motion on
February 7, 2017, and it is from this order that petitioner appeals.

       We previously established the following standard for reviewing orders denying a Rule
35(b) motion:

                “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).

        On appeal, petitioner assigns as error grounds related to the entry of his plea and his
sentence. Specifically, petitioner asserts that he was “under the impression that the plea
agreement was a binding one” as to sentencing and that he would be given concurrent sentences
totaling no more than fifteen years of incarceration. Petitioner also asserts that the State breached
its agreement to remain silent at sentencing and committed perjury by asserting that the police
officer petitioner maliciously assaulted required knee surgery. Petitioner claims that the officer
sustained only bruising and did not undergo surgery. Finally, petitioner argues that he had a right
to withdraw his guilty pleas if the circuit court did not sentence him in line with a sentencing
recommendation, but that he was not advised of this right.3

       Petitioner’s assignments of error are outside the scope of appeal of a ruling on a Rule
35(b) motion. In Marcum, we noted that motions under Rule 35(b) are “essentially . . . plea[s] for
leniency from a presumptively valid conviction.” 238 W.Va. at 31, 792 S.E.2d at 42 (citation
omitted). Challenges to a defendant’s conviction or the validity of a sentence imposed “should be

                                                                   
       2
           Rule 35(b) provides, in part, that

       [a] motion to reduce a sentence may be made, or the court may reduce a sentence
       without motion within 120 days after the sentence is imposed or probation is
       revoked, or within 120 days after the entry of a mandate by the supreme court of
       appeals upon affirmance of a judgment of a conviction or probation revocation or
       the entry of an order by the supreme court of appeals dismissing or rejecting a
       petition for appeal of a judgment of a conviction or probation revocation.
       3
        This assignment of error appears to be the result of petitioner’s misreading of Rule
11(e)(2) of the West Virginia Rules of Criminal Procedure. Where the State agrees to
recommend a specific sentence or not oppose a request for a specific sentence, “the court shall
advise the defendant that if the court does not accept the recommendation or request, the
defendant nevertheless has no right to withdraw the plea.” Id. (emphasis added).
                                                                      2

        
made through a timely, direct criminal appeal[.]” Id. In sum, “Rule 35(b) of the West Virginia
Rules of Criminal Procedure only authorizes a reduction in sentence. Rule 35(b) 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, Syl. Pt. 2. Because petitioner’s assignments of error
challenging his sentence exceed the scope of a Rule 35(b) motion, they are not properly before
this Court.

       For the foregoing reasons, the circuit court’s February 7, 2017, order denying petitioner’s
Rule 35(b) motion is hereby affirmed.


                                                                                        Affirmed.

ISSUED: October 12, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Paul T. Farrell sitting by temporary assignment
Justice Tim Armstead
Justice Evan H. Jenkins

Justice Allen H. Loughry II, suspended and therefore not participating 
 
 
        
        




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