                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                      FILED
                                                                               May 20, 2016
vs) No. 15-0347 (Ohio County 08-F-7)                                           RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Andrew Rios,
Defendant Below, Petitioner


                             MEMORANDUM DECISION
        Petitioner Andrew Rios, by counsel Stephen D. Herndon, appeals the order of the Circuit
Court of Ohio County, entered on March 21, 2015, denying his motion for reduction of sentence
filed pursuant to Rule 35(b) of the West Virginia Rules of Criminal Procedure. Respondent State
of West Virginia appears by counsel Shannon Frederick Kiser.

       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 to first-degree robbery in violation of West Virginia
Code § 61-2-12(a) on January 10, 2008, pursuant to an agreement with the State of West
Virginia after having been charged by information.1 During the plea colloquy, he admitted that
he had picked up Derek Brown—an individual he had just met—some months earlier, driven Mr.
Brown to a rural part of Ohio County, pulled his car over, and discharged a firearm three times
(once just inches from his victim’s face) while taking items from Mr. Brown. Petitioner
acknowledged at his plea hearing that he understood that he could be sentenced to incarceration
in the West Virginia State Penitentiary for a term of ten years to life.

        The circuit court conducted a sentencing hearing the following month. Petitioner, then
twenty-one years old, did not request sentencing as a youthful offender or commitment to the
Anthony Center, but the probation officer specifically recommended that the circuit court forego
alternative sentencing, including the commitment to the Anthony Center, based on the


       1
          The State agreed not to pursue a second charge of first-degree robbery for an event
occurring on the same date as the one described herein. It also agreed not to seek a gun
specification. Because there was no gun enhancement, petitioner will be eligible for parole after
serving fifteen years of his term.
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seriousness of the crime. The court sentenced petitioner to incarceration in the state penitentiary
for a term of sixty years. This Court refused petitioner’s appeal in February of 2009.

        After entry of the circuit court’s sentencing order but prior to this Court’s denial of his
petition for appeal, petitioner sought modification of his sentence in May of 2008, asking that he
be released from custody upon completion (which had not occurred at that time) of two
bachelor’s degree programs offered through the penitentiary system. The circuit court denied
petitioner’s motion by order entered on January 30, 2009. Petitioner filed a second motion for
reduction of sentence on June 5, 2009, explaining that he had obtained life skills, anger
management and stress management certificates; participated in moral recognition therapy; and
was enrolled in an Ohio University program for which he was taking twenty credit hours of
coursework with a greater-than 3.0 grade point average. The circuit court denied the motion by
order entered on March 31, 2015. This appeal followed.

        On appeal, petitioner asserts three assignments of error. First, he argues that the circuit
court erred in denying both of his motions for reduction of sentence because the circuit court
considered only the circumstances of petitioner’s offense, and not subsequent events and
circumstances. Second, he argues that the circuit court erred in not sentencing him as a youthful
offender. Third, he argues that his sentence is excessive. 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):

       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:

       As a general rule, the sentence imposed by a trial court is not subject to appellate
       review. However, in cases . . . in which it is alleged that a sentencing court has
       imposed a penalty beyond the statutory limits or for impermissible reasons,
       appellate review is warranted. Syl. Pt. 4, State v. Goodnight, 169 W.Va. 366, 287
       S.E.2d 504 (1982).

State v. McClain, 211 W.Va. 61, 64, 561 S.E.2d 783, 786 (2002). Furthermore, 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’s appeal is made after the circuit court’s denial of his most recent motion for
reduction of sentence pursuant to Rule 35(b) of the West Virginia Rules of Criminal Procedure,
which provides:



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               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. The court shall determine the motion within a reasonable
       time. Changing a sentence from a sentence of incarceration to a grant of probation
       shall constitute a permissible reduction of sentence under this subdivision.

       Petitioner’s first assignment of error is that the circuit court abused its discretion when
denying the motion for reduction of his sentence because he completed certificate programs and
pursued higher education while incarcerated.2 Petitioner represented to the court that he was
enrolled in college coursework, but there is no evidence of degree completion that would
demonstrate a significant change in circumstances. Moreover, the certificates petitioner has
earned represent progress contemplated in the normal course of institutional rehabilitation.
Though petitioner’s continued educational endeavors are commendable, those efforts are only a
small part of the picture before the circuit court, and there is no evidence that the circuit court
abused its discretion in denying petitioner’s second motion for reduction of sentence on the
evidence presented to it.

        With respect to petitioner’s second and third assignments of error (that the circuit court
failed to sentence him as a youthful offender and that his sentence is unconstitutional insofar as it
is not proportional to the character and degree of his offense), we note that no argument
implicating these issues was presented to the circuit court in petitioner’s motion for reduction of
his sentence. We have explained, “To preserve an issue for appellate review, a party must
articulate it with such sufficient distinctiveness to alert a circuit court to the nature of the claimed
defect.” Syl. Pt. 2, State ex rel. Cooper v. Caperton, 196 W.Va. 208, 470 S.E.2d 162 (1996)
accord State v. Craft, 200 W. Va. 496, 502, 490 S.E.2d 315, 321 (1997). We clarified in Craft
that this Court “will not review nonjurisdictional issues on appeal not previously considered by
the lower court. . . .” Craft, 200 W.Va. at 502, 490 S.E.2d at 321 (citing Syl. pt. 7, State v.
Garrett, 195 W.Va. 630, 466 S.E.2d 481 (1995)). Because the circuit court did not have an
opportunity to assess these questions, we will not do so now.

       For the foregoing reasons, we affirm.

                                                                                             Affirmed.

ISSUED: May 20, 2016

       2
         Though petitioner refers to his earlier motion for reduction of sentence, we note that the
denial of that motion is not before us, and we consider petitioner’s arguments only as they relate
to the denial of the motion for reduction of sentence that was filed on June 5, 2009, within 120
days after the entry of our mandate order confirming our refusal of petitioner’s direct appeal.



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CONCURRED IN BY:

Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II


DISSENTING:

Chief Justice Menis E. Ketchum, dissenting

                 Mr. Rios, a twenty-year old first time offender, pled guilty to one count of first
degree robbery. During his plea hearing, Mr. Rios admitted his crime, accepted responsibility
for his actions, and told the court, “I humbly ask for your mercy in my sentencing and I promise
that I will use the time wisely to rehabilitate myself, complete school, and return to society sober,
wiser, and a whole man.” The circuit court sentenced this twenty-year old, first time offender to
an incarceration term of sixty years.

              After being sentenced to sixty years in jail for pleading guilty to one offense, Mr.
Rios filed a motion for a reduction of his sentence pursuant to Rule 35(b) of the West Virginia
Rules of Criminal Procedure. According to Syllabus Point 5 of State v. Head, 198 W.Va. 298,
480 S.E.2d 507 (1996):

                      When considering West Virginia Rules of Criminal
               Procedure 35(b) motions, circuit courts generally should consider
               only those events that occur within the 120-day filing period;
               however, as long as the circuit court does not usurp the role of the
               parole board, it may consider matters beyond the filing period
               when such consideration serves the ends of justice.

(Emphasis added).

                In support of his motion for a reduced sentence, Mr. Rios demonstrated that he
has made a number of significant steps toward rehabilitation. For instance, since being
incarcerated Mr. Rios has obtained a college education, graduating from Ohio University with a
3.5 grade point average. Further, Mr. Rios has participated in and completed a number of
programs offered by Mount Olive Correctional Center. These include the following: 1)
residential substance abuse program, 2) crime victims awareness, 3) anger management; 4) ideas
for better communication, 5) open gate, 6) cognitive skills II, 7) making decisions, 8) refusal
skills, 9) building trust, 10) values and personal responsibility, 11) managing money, and 12)
hygiene and self-care. The circuit court’s order denying Mr. Rios’ motion for a reduced sentence
does not discuss these substantial steps Mr. Rios has taken to rehabilitate himself since being
incarcerated.



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               Additionally, while not raised by his counsel during the sentencing hearing, Mr.
Rios was eligible to be sentenced as a youthful offender pursuant to Syllabus Point 4 of State v.
Turley, 177 W.Va. 69, 350 S.E.2d 696 (1986): “A person who has attained his or her sixteenth
birthday but has not reached his or her twenty-first birthday at the time of the commission of the
crime and who is convicted of or pleads guilty to aggravated robbery is eligible for suspension of
sentence and commitment to a youthful offender center under W.Va.Code, 25–4–6 [1975].” The
Legislature has stated that one of the goals of the youthful offender program is “to give better
opportunity to young adult offenders for reformation and encouragement of self-discipline.”
W.Va. Code 25-4-1 [1999]. Mr. Rios is a young adult offender who has demonstrated his
commitment to reformation and self-discipline by attaining a college degree and completing
twelve programs offered by Mount Olive.

                “Compassion is still an element of the law. The quality of mercy should not be
strained on the facts before us.” People v. Monday, 70 Mich.App. 518, 523, 245 N.W.2d 811,
814 (1976). “Sometimes we need to mix a little mercy with justice.” Lawyer Disciplinary Board
v. Brown, 223 W.Va. 554, 678 S.E.2d 60 (2009) (Justice Ketchum, dissenting). I believe this is a
case in which the court needs to mix a little mercy with justice. Mr. Rios was twenty years old
when he committed one offense. He had no prior adult convictions, nor did he have a juvenile
record. Since his incarceration, Mr. Rios has earned a college degree and completed twelve
programs offered by Mount Olive. He has demonstrated his commitment to rehabilitation and I
believe his sixty-year sentence should have been reduced pursuant to his Rule 35(b) motion.

               For the foregoing reasons, I respectfully dissent.




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