                                              STATE OF WEST VIRGINIA 

                                            SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                        FILED
                                                                               October 12, 2018
vs.) No. 17-0854 (Fayette County 15-F-64)                                      EDYTHE NASH GAISER, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA 
Antwyn D. Gibbs,
Defendant Below, Petitioner


                                                  MEMORANDUM DECISION
        Petitioner Antwyn D. Gibbs, pro se, appeals the Circuit Court of Fayette County’s
September 1, 2017, order denying his Rule 35(b) motion for reduction of sentence. The State, by
counsel Shannon Frederick Kiser, filed a response. Petitioner filed a reply. On appeal, petitioner
argues that the circuit court erred in denying his motion for reduction of sentence without
making sufficient findings of fact or conclusions of law, without considering “facts” or
petitioner’s accomplishments, and without holding a hearing on the motion.1

        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.

        Following a jury trial in September of 2015, petitioner was convicted of first-degree
robbery, entry of a dwelling, and conspiracy to commit a felony. The circuit court sentenced
petitioner to consecutive terms of incarceration of one to five years for his conspiracy conviction,
which was enhanced to two to five years following a recidivist conviction; one to ten years for
entry of a dwelling; and fifty years for first-degree robbery. We affirmed petitioner’s convictions
and sentences in State v. Gibbs, 238 W.Va. 646, 797 S.E.2d 623 (2017).

       Petitioner, by counsel, filed a motion for reduction of his sentence pursuant to Rule 35(b)
of the West Virginia Rules of Criminal Procedure on August 4, 2017.2 Petitioner argued that two
                                                                   
       1
        Petitioner also argues that he “should have been appointed an attorney to perfect the
Rule 35(b) Motion for Reduction of Sentence.” Petitioner’s Rule 35(b) motion was filed by
counsel. Because petitioner had counsel below, we decline to address this contrary assertion.
       2
           Rule 35(b) of the West Virginia Rules of Criminal Procedure provides that

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of his four codefendants, who pled guilty prior to trial, received shorter sentences than petitioner.
However, petitioner acknowledged that these two codefendants pled guilty to first-degree
robbery only, whereas petitioner was convicted of three crimes.

        On September 1, 2017, the circuit court denied petitioner’s motion for reduction of his
sentence. The court found that the previously imposed sentences were an appropriate disposition
given the presentence investigation report, petitioner’s statements at sentencing, and the entire
court file. Petitioner filed an appeal from this September 1, 2017, order and a motion for
appointment of appellate counsel. By scheduling order entered on October 19, 2017, we deferred
ruling on the motion for appointment of appellate counsel, which we now consider with the
merits of petitioner’s appeal.

        Petitioner advances three arguments on appeal. First, petitioner argues that the circuit
court erred in denying his motion for reduction of sentence without making findings of fact or
conclusions of law sufficient to enable meaningful appellate review. Second, the circuit court
erred in failing to consider “facts” or petitioner’s accomplishments. Finally, the circuit court
erred in not holding a hearing on his motion.

      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).  

        Petitioner argues that the circuit court’s denial of his motion for reduction of sentence
“was basically an insignificant half[-]page [order]” that did not include the requisite findings of
fact and conclusions of law, contained no citations to case law, and evidenced no “careful
thought, deliberation[,] or any factors in forming the judgment[.]” Not only does petitioner fail to
cite any law mandating that orders contain citations to case law or that they be a certain length,
but he also fails to acknowledge that the circuit court, in fact, provided a basis for denying his

                                                                                                                                                                                                       

       [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.



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motion. Namely, petitioner’s presentence investigation report, his statements at sentencing, as
well as the entire record of proceedings in this case compelled the circuit court’s conclusion that
petitioner’s sentences were appropriate. Petitioner fails to demonstrate that such consideration
and ultimate conclusion were an abuse of the court’s discretion in ruling on Rule 35(b) motions.

        Next, petitioner contends that the circuit court erred in denying his motion “without
considering any facts and accomplishments.” Petitioner, though, failed to outline any such
particular “facts” or “accomplishments” in his Rule 35(b) motion. Petitioner acknowledges as
much in his brief on appeal, but explains that the failure to lay out his “accomplishments” was
due to the fact that he was not appointed counsel. However, this assertion concerning counsel is
not supported by the record. Further, because “nonjurisdictional questions not raised at the
circuit court level will not be considered [for] the first time on appeal[,]” State v. Jessie, 225
W.Va. 21, 27, 689 S.E.2d 21, 27 (2009), we decline to address this assignment of error
concerning petitioner’s alleged “accomplishments.”

        We also find that the circuit court did not err in ruling on petitioner’s motion without
holding a hearing. We have previously upheld the propriety of ruling on Rule 35(b) motions
without a hearing. See State v. King, 205 W.Va. 422, 425, 518 S.E.2d 663, 666 (1999) (finding
that the circuit court did not abuse its discretion by not holding a hearing on the appellant’s Rule
35(b) motion). Petitioner, therefore, is not entitled to relief on this ground. Finally, given that the
circuit court properly denied petitioner’s Rule 35(b) motion, we deny his motion for appointment
of appellate counsel.

        For the foregoing reasons, the circuit court’s September 1, 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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