                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                      FILED
                                                                            February 26, 2016
vs) No. 15-0291       (Berkeley County 11-F-185 and 12-F-161)                  RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Joseph L. Stephens, Sr.,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner and defendant below Joseph L. Stephens, Sr., by counsel Kevin D. Mills and
Shawn R. McDermott, appeals the March 3, 2015, “Order Denying Defendant’s Amended Rule
35 Motion for Correction and/or Modification of Sentence” entered in the Circuit Court of
Berkeley County in connection with his Alford/Kennedy plea1 to the offenses of sexual abuse in
the first degree, assault in the commission of a felony, and unlawful assault. The State of West
Virginia, by counsel Cheryl K. Saville, filed a response in support of the circuit court’s order.

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

        On October 18, 2011, petitioner was indicted by a Berkeley County grand jury on one
count of domestic battery, third offense (Case No. 11-F-183). On May 24, 2012, in a separate
matter (Case No. 12-F-61), petitioner was indicted on one count of sexual assault in the second
degree.

        On April 1, 2013, petitioner entered into a plea agreement with the State to resolve both
cases. Petitioner agreed to waive indictment and be charged by information with the felony
offenses of sexual abuse in the first degree, assault during the commission of a felony, and
unlawful assault. He agreed to plead guilty to these charges. According to the parties, petitioner
agreed to waive presentence investigation and to a binding sentence of the statutory terms of not
less than one year nor more than five years of incarceration for the sexual abuse charge, not less
than two nor more than ten years for the assault during the commission of a felony charge, and

       1
         See North Carolina v. Alford, 400 U.S. 25 (1970), and Kennedy v. Frazier, 178 W.Va.
10, 357 S.E.2d 43 (1987).



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not less than one nor more than five years for the unlawful assault charge. He agreed that the
sentences would run consecutively, that he would be required to register as a sexual offender for
life, and that he would be placed on a term of forty years of supervised release. For its part, the
State agreed not to file a recidivist charge.

        On April 2, 2013, petitioner pled guilty under Alford/Kennedy circumstances to the
above-described charges. Under the plea agreement, the charges in both indictments were
dismissed and petitioner was sentenced to a total of not less than four nor more than twenty years
of incarceration, was ordered to register as a sexual offender for life, and was ordered to serve
forty years of supervised release. Although counsel for petitioner was re-appointed, no direct
appeal was filed.

        On July 5, 2013, petitioner, pro se, filed a timely motion for reconsideration of sentence
under West Virginia Rule of Criminal Procedure 35 based upon his positive behavior while
incarcerated. See W.Va.R.Crim.P. 35(b) (providing that “[a] motion to reduce a sentence may be
made . . . within 120 days after the sentence is imposed . . . .”). Petitioner’s motion also
requested the appointment of counsel. Following the appointment of counsel, petitioner moved to
withdraw his motion for reconsideration of sentence to which he attached a sworn affidavit
stating that he did not wish to pursue the motion.

       On January 27, 2015, after present counsel was appointed, petitioner filed the instant
“amended” Rule 35 motion for correction and/or modification of sentence. The circuit court
denied the motion by order entered March 3, 2015. This appeal followed.

          This Court reviews an order denying a Rule 35 motion under the following standard of
review:

                 “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 Civil 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 interpretation of statutes and rules are subject to a de novo review.”
          Syllabus Point 1, State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).

Syl. Pt. 1, State v. Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010). Furthermore, “[s]entences
imposed by the trial court, if within statutory limits and if not based on some [im]permissible
factor, are not subject to appellate review.” Syl. Pt. 4, State v. Goodnight, 169 W.Va. 366, 287
S.E.2d 504 (1982).

        In his first assignment of error, petitioner argues that the circuit court abused its
discretion in denying his Rule 35 motion on several grounds: (1) that there was not an adequate
factual basis to support convictions of both unlawful assault and assault in the commission of a
felony; (2) that a presentence investigation and report should have been completed prior to
sentencing; and (3) that petitioner should have received rehabilitative services for his drug and
alcohol addiction. Petitioner argues that the sentences originally imposed were illegal and the

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circuit court erred in failing to correct the same under Rule 35(a) (providing that “[t]he court may
correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner
within the time period provided herein for the reduction of sentence.”).

        As a threshold matter, we note several deficiencies in the so-called “amended” Rule 35
motion filed by petitioner on January 27, 2015. First, petitioner’s motion is misleading in its title
given that the instant motion was not an “amended” motion; rather, the record is clear that
petitioner withdrew his previous Rule 35(b) motion filed on July 5, 2013. Moreover, petitioner’s
January 27, 2015, motion was untimely filed under Rule 35(b), which requires that a motion for
a reduction of sentence be filed within 120 days after imposition of the same. (Petitioner was
sentenced on April 2, 2013.) Furthermore, with regard to petitioner’s argument that his sentence
was illegal under Rule 35(a) for the reasons set forth above, we observe that, in fact, petitioner
challenges the legality of the underlying plea and not an “illegal sentence” within the meaning of
the rule.

        Notwithstanding our conclusion that petitioner’s Rule 35 motion was both untimely
(under Rule 35(b)) and ill-conceived in its claim that the sentence is “illegal” (under Rule 35(a)),
the Court will nonetheless address the merits of petitioner’s argument. First, petitioner argues
that there was an insufficient factual basis proffered for the offenses of assault in the commission
of a felony and unlawful assault. Petitioner argues that the factual basis proffered in support of
the offense of assault in the commission of a felony consisted of the same facts supporting the
offense of first degree sexual abuse2 (the guilty plea that he does not challenge in this appeal).
The State proffered to the circuit court that, while the victim was asleep, petitioner climbed on
top of her and penetrated her vagina. According to the State, the sexual assault medical
examination revealed that, as a result of the sexual abuse, the victim sustained active bleeding in
her cervix and her vaginal area sustained a two-centimeter abrasion, redness and swelling, and
was tender to the touch.

        West Virginia Code § 61-2-10, “Assault during commission of or attempt to commit a
felony,” states, in relevant part, that “[i]f any person in the commission of, or attempt to commit
a felony, unlawfully shot, stab, cut or wound another person, he shall be guilty of a felony . . . .”
Petitioner argues that the evidence offered by the State to support a violation of this statute
stemmed from the sexual intrusion itself and that there was no evidence that petitioner shot,
stabbed, cut, or wounded the victim in any way other than the sexual abuse committed while she
was sleeping. According to petitioner, first degree sexual abuse is a violent act and he should not
be punished for both the sexual intrusion and the injuries inherent thereto. Petitioner suggests,
but fails to offer any supporting legal authority, that a conviction of both crimes violates double
jeopardy principles. We reject petitioner’s argument and find no error.

       In State v. Penwell, this Court concluded that double jeopardy principles do not bar a
conviction of both aggravated robbery and assault during the commission of a felony based upon



       2
         West Virginia Code § 61-8B-7(a)(2) states, in pertinent part, that “[a] person is guilty of
sexual abuse in the first degree when: . . . [s]uch person subjects another person to sexual contact
who is physically helpless . . . .”
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the legislative intent of the statutes involved. 199 W.Va. 111, 483 S.E.2d 240 (1996). The Court
held that

       “[a] claim that double jeopardy has been violated based on multiple punishments
       imposed after a single trial is resolved by determining the legislative intent as to
       punishment.” Syllabus point 7, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253
       (1992).

Penwell, 199 W.Va. at 113, 483 S.E.2d at 242, at syl. pt. 1. The Court further held that, to
ascertain legislative intent, a court should review the language of the statutes involved and,
where necessary, their legislative history “to determine if the legislature has made a clear
expression of its intention to aggregate sentences for related crimes.” Id. at syl. pt. 2, in part
(quoting Gill, supra, at syl. pt. 8, in part). Upon examining the statutes at issue in Penwell, the
Court determined that neither aggravated robbery nor assault in the commission of a felony is a
“lesser included” offense of the other and, further, that the Legislature clearly intended to create
two separate offenses with separate punishments. 199 W.Va. at 116, 483 S.E.2d at 245.

        In the present case, petitioner was charged with sexual abuse in the first degree for
subjecting the victim to “sexual contact while [she] was physically helpless,” in violation of
West Virginia Code § 61-8B-7(a)(2). See n.2, supra. A violation of this statute does not require
that the accused “shoot, stab, cut or wound another person,” as is required for a violation of West
Virginia Code § 61-2-10. Petitioner’s sexual abuse of the victim caused her to suffer active
bleeding in her cervix and an abrasion, redness, and swelling in her vaginal area. Thus,
petitioner, having wounded the victim in the commission of sexual abuse in the first degree, was
properly charged with assault in the commission of a felony, in violation of West Virginia Code
§ 61-2-10.

        Petitioner also argues that there was an insufficient factual basis for a conviction for the
offense of unlawful assault, as set forth in West Virginia Code § 61-2-9(a). Under West Virginia
Code § 61-2-9(a), “[i]f any person maliciously shoot, stab, cut or would any person, or by any
means cause him or her bodily injury with intent to maim, disfigure, disable or kill, he or she
shall, except where it is otherwise provided, be guilty of a felony . . . .”

         The factual basis offered for the offense of unlawful assault involved a different victim
and a separate incident than the one described above. According to the State, petitioner and the
female victim (his girlfriend) got into an argument about the petitioner’s alleged infidelity and a
physical altercation instigated by petitioner ensued, during which petitioner struck the victim.
When the responding police officer arrived on the scene, he observed that the victim “had large
clumps of hair pulled out of her hair [sic] and had red marks on her . . . scalp.” Petitioner argues
that, at best, these facts support a battery conviction. We disagree.

       Based upon these facts, the Court concludes that there was a sufficient factual basis to
support a conviction for the offense of unlawful assault, as it is clear that petitioner caused the
victim bodily injury with the “intent to maim, disfigure, disable or kill” her. W.Va. Code § 61-2­
9(a).



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        Next, petitioner argues that his sentence was illegally imposed because the circuit court
failed to order a pre-sentence investigation report prior to sentencing, as required by West
Virginia Rules of Criminal Procedure 32(b).3 Petitioner argues that the the circuit court
“proceeded to sentencing following Petitioner’s plea. There was no inquiry as to whether
Petitioner would waive the [presentence] investigation and report.” Petitioner further argues, in
essence, that a presentence investigation would have provided the circuit court with information
regarding his alleged drug and alcohol addiction, which could have caused the court to order
petitioner to participate in needed rehabilitative programs.

        We find petitioner’s argument to be without merit. In his Rule 35 motion before the
circuit court, petitioner affirmatively represented that he “waived his [presentence] investigation”
and was sentenced by the circuit court pursuant to the plea agreement. Subsequently, in his brief
on appeal, petitioner reiterated that he “waived his [presentence] investigation.” Moreover,
during the April 2, 2013, plea and sentencing hearing, neither petitioner nor his counsel
requested that the circuit court defer its ruling on the plea or delay the imposition of sentence
until a presentence investigation and report were completed. To the contrary, immediately upon
acceptance of the plea, the circuit court indicated that it would move forward with sentencing
“by agreement and request of counsel.” Furthermore, when asked by the court as to whether
there was “any legal cause to show why sentence should not be pronounced at this time[,]” both
petitioner and his counsel replied in the negative. Accordingly, we find no error.

        Next, petitioner argues that his sentence is illegal because it fails to provide for
rehabilitation for his alleged drug and alcohol addiction. He contends that he has a “substantial
history of addiction and mental illness,” and that he “has been in and out of jails and prisons for
most of his adult life[,]” where these problems have never been addressed. Petitioner further
argues that, due to prison overcrowding, the correctional system has failed him in this regard.
Petitioner avers that the circuit court abused its discretion in refusing to impose an alternative
sentence with a substance abuse treatment component. We find no error.

        Petitioner claims that he has a long history of drug and alcohol addiction and mental
illness; however, he fails to cite to any evidence of record in support of this claim. To the
contrary, during the April 2, 2013, plea and sentencing hearing, the State made specific reference
to the fact that a “comprehensive psychological evaluation” was conducted on petitioner and that
“no subsequent motions were filed with regard to a mental – a defense that relies on a mental

       3
           Rule 32(b) of the West Virginia Rules of Criminal Procedure states as follows:

       (b) Presentence Investigation and Report.
       (1) When Made. The probation officer shall make a presentence investigation and
       submit a report to the court before the sentence is imposed, unless:
       (A) the defendant waives a presentence investigation and report;
       (B) the court finds that the information in the record enables it to meaningfully
       exercise its sentencing authority; and
       (C) the court explains on the record its finding that the information in the record
       enables it to meaningfully exercise its sentencing authority.


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incapacity[.]” Although the State’s remarks were made in connection with petitioner’s
competency to enter into the plea agreement, petitioner made no objection or otherwise
suggested that he has a mental illness currently requiring rehabilitation treatment as he now
claims.4 Furthermore, when asked by the circuit court whether he had ever been treated for
alcohol abuse, petitioner replied that, in connection with another matter, “they sent me three
places and they all said I didn’t need it.” Petitioner did not argue to the contrary. Similarly, when
petitioner advised the circuit court that he had never been treated for drug abuse, neither he nor
his counsel suggested to the sentencing court that he nonetheless had a drug problem and needed
treatment for the same. Based upon the foregoing, we find that the circuit court in no way abused
its discretion in denying petitioner’s Rule 35 motion.

        In his final assignment of error, petitioner makes the very cursory argument (and without
any citation to supporting legal authority) that the circuit court abused its discretion in denying
petitioner a hearing on his Rule 35 motion.5 Petitioner argues that the grounds upon which his
Rule 35 motion was based “should have required further inquiry at a hearing” and that the circuit
court’s order “failed to grapple with any of the specific issues raised” therein. We find no error.

         Upon our review of the record, including the transcript of the plea and sentencing hearing
before the same court that denied petitioner’s Rule 35 motion to correct his sentence, we see no
compelling reason to remand this matter for a hearing thereon. See State v. King, 205 W.Va. 422,
425, 518 S.E.2d 663, 666 (1999) (concluding “that the circuit court held lengthy hearings when
the appellant pled guilty and when he was sentenced. Thus, we find no merit to the appellant’s
contention that the circuit court was required to hold another hearing to consider his motion for a
reduction of sentences”). Likewise, petitioner has failed to present this Court with any
justification as to why the circuit court should be required to conduct another hearing on the
issue of sentencing. Thus, the Court concludes that the circuit court did not abuse its discretion in
entering the March 3, 2015, order without a hearing.

        For the foregoing reasons, we affirm.

                                                                                              Affirmed.


ISSUED: February 26, 2016




        4
          Petitioner advised the circuit court that he had been treated for an unspecified mental
illness and that he had sustained head injuries for which he had been prescribed medication. He
also stated that he is a “slow learner” and that he has been hospitalized.
        5
           In this regard, petitioner’s brief fails to comply with the requirements of Rule 10(c)(7)
of the West Virginia Rules of Appellate Procedure that a “brief must contain an argument
exhibiting clearly the points of fact and law presented, . . . and citing the authorities relied on . . .
.” Id., in pertinent part.
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CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




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