                                  STATE OF WEST VIRGINIA

                                SUPREME COURT OF APPEALS


                                                                                    FILED
                                                                                 April 15, 2016
State of West Virginia,                                                          RORY L. PERRY II, CLERK
Plaintiff Below, Respondent                                                    SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA

vs) No. 15-0779 (Fayette County 07-F-140)

Frank D.,

Defendant Below, Petitioner




                                  MEMORANDUM DECISION

       Petitioner Frank D.,1 pro se, appeals the July 17, 2015, order of the Circuit Court of Fayette
County denying his motion for reduction of sentence. Respondent State of West Virginia, by
counsel Lara K. Omps-Botteicher, filed a response, and petitioner filed a reply.2

        The 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.

        In September of 2007, petitioner was indicted on fifty-nine counts of sex-related crimes
involving his minor daughter.3 In June of 2010, the circuit court held a plea hearing at which
petitioner pled guilty, pursuant to Kennedy v. Frazier, 178 W.Va. 10, 357 S.E.2d 43 (1987), to the
following six felonies: one count of second-degree sexual assault in violation of West Virginia
       1
       Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993); State v.
Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990).
       2
         Petitioner also filed a motion for appointment of appellate counsel. We address
petitioner’s motion herein.
       3
           The indictment describes the victim as being under sixteen years of age.

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Code § 61-8B-4, and five counts of first-degree sexual abuse in violation of West Virginia Code §
61-8B-7.4 In January of 2011, prior to sentencing, petitioner filed a motion to withdraw his guilty
pleas pursuant to Rule 32 of the West Virginia Rules of Criminal Procedure. Following a hearing,
the circuit court denied the motion and thereafter imposed an aggregate sentence of fifteen to fifty
years of incarceration. Petitioner appealed to this Court. In State v. Frank D., No. 14-0825, 2015
WL 3689178, at *3 (W.Va. June 15, 2015) (memorandum decision), we affirmed the circuit
court’s denial of petitioner’s motion to withdraw his guilty pleas.

        On July 9, 2015, petitioner filed a motion for reduction of sentence pursuant to Rule 35(b)
of the Rules of Criminal Procedure. In his motion, petitioner listed the following grounds for a
reconsideration of his sentence: (1) the completion of various inmate education classes; (2) a good
work record during his incarceration; and (3) a disciplinary record reflecting that petitioner had not
had “many” infractions. The circuit court denied petitioner’s motion by an order entered July 17,
2015. The circuit court ruled that, “after due consideration of the aforementioned motion and the
contents of the court file, . . . the sentences heretofore imposed were then and are now factually and
legally appropriate.”

        Petitioner appeals the circuit court’s July 17, 2015, order denying his Rule 35(b) motion for
reduction of sentence. In Syllabus Point 1 of State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996),
we set forth the pertinent 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
       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.

We explained in Head that the denial of a motion under Rule 35 is generally “not reviewable” in a
case in which no abuse of discretion occurs. Id. at 301, 480 S.E.2d at 510.

       On appeal, petitioner contends that the circuit court abused its discretion in not holding a
hearing on his motion for reduction of sentence. Respondent counters that, in State v. King, 205
W.Va. 422, 518 S.E.2d 663 (1993), we rejected the argument that the circuit court erred in not
holding a hearing on a Rule 35(b) motion. We explained in King that a hearing on the motion was
unnecessary where “[t]he record establishes that the circuit court held lengthy hearings when the
appellant pled guilty and when he was sentenced.” 205 W.Va. at 425, 518 S.E.2d at 666; see Head,
198 W.Va. at 306, 480 S.E.2d at 515 (Cleckley, J., concurring) (“A Rule 35(b) hearing is not, nor
was it ever intended to be, a sentencing hearing.”). We note that the same judge who denied
       4
         In Syllabus Point 1 of Kennedy, we held that circuit courts may accept a criminal
defendant’s plea of guilty despite a claim of innocence “if he intelligently concludes that his
interests require a guilty plea and the record supports the conclusion that a jury could convict him.”
178 W.Va. at 10, 357 S.E.2d at 43.

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petitioner’s motion held petitioner’s plea and sentencing hearings. The same judge also imposed
the sentence of fifteen to fifty years of incarceration after denying petitioner’s motion to withdraw
his guilty pleas. While petitioner argues that due process of law mandates that he be afforded a
hearing on his motion for reduction of sentence, we find that a Rule 35(b) proceeding does not
come “with the same panoply of rights associated with a sentencing hearing.” Head, 198 W.Va. at
305-6, 480 S.E.2d at 514-15 (Cleckley, J., concurring). Therefore, we conclude that the circuit
court did not abuse its discretion in opting not to hold a hearing on petitioner’s motion for
reduction of sentence.

        Petitioner further contends that the circuit court’s July 17, 2015, order did not contain
findings of fact and conclusions of law sufficient to show that the court adequately considered his
assertion that he completed various inmate education classes.5 See State v. Redman, 213 W.Va.
175, 178, 578 S.E.2d 369, 372 (2003) (indicating that a trial court’s ruling pursuant to Rule 35
must contain “requisite findings of fact and conclusions of law to permit meaningful appellate
review”) (Internal quotations and citations omitted.) We note that the standard of review adopted
in Head continues “the deference we have traditionally accorded trial courts in matters of
sentencing.” 198 W.Va. at 301, 480 S.E.2d at 510; see Syl. Pt. 4, State v. Goodnight, 169 W.Va.
366, 287 S.E.2d 504 (1982) (“Sentences imposed by the trial court, if within statutory limits and if
not based on some [im]permissible factor, are not subject to appellate review.”). Therefore, we
find that the circuit court’s determination that—“after due consideration of the aforementioned
motion and the contents of the court file, . . . the sentences heretofore imposed were then and are
now factually and legally appropriate”—shows that the court gave due consideration to the
contentions stated in petitioner’s motion. Accordingly, we conclude that the circuit court did not
abuse its discretion in denying petitioner’s motion for reduction of sentence. Furthermore, because
we can dispose of this case without oral argument, we deny petitioner’s motion for appointment of
appellate counsel.

       For the foregoing reasons, we affirm the circuit court’s July 17, 2015, order denying his
Rule 35(b) motion for reduction of sentence.

                                                                                          Affirmed.

ISSUED: April 15, 2016

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
       5
        As respondent points out, while petitioner includes his certificates of completion in the
appellate record, he did not attach the certificates to his motion.

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