                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                       FILED
                                                                               June 17, 2016
vs) No. 15-0234 (Morgan County 10-F-43)                                        RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Myrick Peacock,

Defendant Below, Petitioner



                              MEMORANDUM DECISION
       Petitioner Myrick Peacock, by counsel B. Craig Manford, appeals the February 9, 2015,
order of the Circuit Court of Morgan County denying petitioner’s “motion for reconsideration of
sentence” under Rule 35(b) of the West Virginia Rules of Criminal Procedure.1 Respondent State
of West Virginia, by counsel Jonathan E. Porter, 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.

       In April of 2010, petitioner was indicted on six counts of sexual abuse by a custodian,
and one misdemeanor count of contributing to the delinquency of a minor. Pursuant to a plea
agreement, petitioner agreed to plead guilty to one count of sexual abuse by a custodian. On May
2, 2011, petitioner entered an Alford/Kennedy plea,2 and was sentenced to not less than ten, nor
more than twenty years in prison. Petitioner’s sentence was suspended in lieu of five years
supervised probation.

       1
        While the West Virginia Rules of Criminal Procedure do not provide for a motion for
reconsideration of sentence, criminal defendants are entitled to seek a reduction of sentence
pursuant to Rule 35(b). Accordingly, we will properly refer to petitioner’s “motion for
reconsideration of sentence” in this memorandum decision as a motion for reduction of sentence
or a Rule 35(b) motion.
       2
        In an “Alford/Kennedy (North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970),
Kennedy v. Frazier, 178 W.Va. 10, 357 S.E.2d 43 (1987)) plea,” a criminal defendant pleads
guilty while proclaiming his innocence.



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        On February 28, 2013, petitioner’s probation officer filed a petition for revocation of
petitioner’s probation. The probation officer alleged that petitioner violated the terms and
conditions of his probation by registering high blood alcohol content (“BAC”) readings on two
breathalyzer tests (administered on two separate dates) and for operating his motor vehicle while
under the influence of alcohol.3 Following an April 22, 2013, hearing, the circuit court revoked
petitioner’s probation.4 Petitioner then moved the circuit court to continue disposition of his
sentence to allow him to enroll in an alcohol rehabilitation program. Petitioner’s request for a
continuance was granted and, on April 30, 2013, petitioner entered a rehabilitation program.
During a July 1, 2013, hearing, the circuit court found that petitioner successfully completed the
rehabilitation program and reinstated his probation, under all previous terms and conditions.

        On March 17, 2014, petitioner’s probation officer filed a second petition for revocation of
petitioner’s probation. In this petition, the probation officer alleged that petitioner arrived at a
March 12, 2014, counseling session intoxicated (with a BAC of 0.95%). That same day, after
receiving notification of petitioner’s intoxication, petitioner’s probation officer directed
petitioner to immediately enter into a detoxification program until further decisions were made
concerning his probation violation. Despite the directions of his probation officer, petitioner did
not immediately enter into a detoxification program. In the late afternoon of March 12, 2014,
petitioner’s probation officer visited petitioner’s residence and discovered: four garbage bags full
of empty beer cans and unopened containers of alcohol in a closet; a cold, opened beer can with
a straw in the beverage in petitioner’s kitchen; and seven syringes and four burnt spoons on top
of a cabinet in petitioner’s bedroom. Petitioner admitted to his probation officer that he had been
drinking alcohol and using drugs (heroin and valium).

        At an April 7, 2014, hearing on its petition for revocation of petitioner’s probation, the
State argued that petitioner’s continued release on probation created a “safety issue” to the
community. The State noted that: (1) petitioner’s underlying criminal charge related to the sexual
abuse of a seventeen year old member of petitioner’s household and included allegations of
petitioner’s drug use; (2) petitioner’s probation had previously been violated for alcohol use
following which petitioner was given another chance at rehabilitation; and (3) petitioner admitted
to use of heroin, valium, and alcohol. Petitioner admitted the allegations in the petition to revoke
probation filed by the State and waived his right to a hearing.

       3
         On August 26, 2012, petitioner was at his residence when his probation officer
conducted an unscheduled home visit and found the petitioner intoxicated (petitioner’s BAC was
measured as .07%). On February 28, 2013, petitioner drove himself to the probation office for a
scheduled appointment. Petitioner presented with a strong odor of alcohol and fell asleep in the
lobby while waiting for his appointment. During his appointment, a breathalyzer test was
administered to petitioner and his BAC was measured as .170%. When video surveillance from
the judicial center showed that petitioner drove himself to the appointment with his probation
officer, he was charged with driving under the influence.
       4
        During the hearing, petitioner admitted to the allegations contained in the petition for
revocation of probation.



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        By order dated April 17, 2014, the circuit court revoked petitioner’s probation and re­
imposed petitioner’s original sentence. The court reasoned that in light of the fact that petitioner
“graduated from alcohol abuse of a fairly substantial nature” (four garbage bags of empty beer
cans), to heroin and valium, that petitioner “represents a danger to the family . . . as well as the
greater community at large . . . .” No direct appeal was filed by petitioner from the circuit court’s
April 17, 2014, order. Instead, a motion for reduction of sentence (and supporting
memorandum), pursuant to Rule 35(b) of the West Virginia Rules of Criminal Procedure, was
filed on August 4, 2014. In his motion, petitioner advised the court of his medical conditions and
attempted to explain why he had not immediately reported to a detoxification program on March
12, 2014, when advised to do so by his probation officer, by offering the affidavit of his wife.5

         On September 4, 2014, a hearing was held on petitioner’s Rule 35(b) motion. At the
hearing, the circuit court took petitioner’s motion under advisement. Both parties submitted
proposed orders to the court. On February 9, 2015, the circuit court entered the State’s proposed
order which denied petitioner’s motion for reduction of sentence finding that there was no
change in circumstances presented which would warrant a modification of petitioner’s sentence.
It is from the February 9, 2015, order that petitioner now appeals.

       In syllabus point one of State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996), we held
that

              [i]n 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.

        In support of his appeal herein, petitioner asserts three assignments of error. First, he
argues that the circuit court committed plain error and abused its discretion by failing to correct
its erroneous ruling revoking petitioner’s probation.6 Second, petitioner argues that the circuit
court failed to make any substantive findings of fact and conclusions of law in its order denying
petitioner’s motion for reduction of sentence. Third, petitioner contends that the circuit court

       5
         In her affidavit, petitioner’s wife attempts to explain the delay in petitioner entering into
a detoxification program, by providing a timeline of her activities and communications with
petitioner on March 12, 2014.
       6
         Petitioner contends that under the provisions of West Virginia Code § 62-12-10(a)(2),
he should be sentenced to only one hundred twenty days of incarceration for his probation
violation, as opposed to revocation of his probation and re-imposition of the original sentence.
However, we note, that West Virginia Code § 62-12-10(c), also provides that “a judge may
otherwise depart from the sentence limitations set forth in subdivision (2), subsection (a) of this
section . . . .”



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committed plain error and abused its discretion by denying petitioner’s motion given the
petitioner’s unique circumstances.

        Because they are interrelated and both address the propriety of the revocation of
petitioner’s probation, we address petitioner’s first and third assignments of error together. We
begin by noting that it is well established that “[p]robation is a matter of grace and not a matter
of right,” Syl. Pt. 1, State v. Rose, 156 W.Va. 342, 192 S.E.2d 884 (1972). Further, we note our
ruling in syllabus point four of State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982),
wherein we held that “[s]entences imposed by the trial court, if within the statutory limits and if
not based on some [im]permissible factor are not subject to appellate review.”

        Based upon our review of the record herein, we find that the circuit court did not abuse its
discretion in denying petitioner’s Rule 35(b) motion. It is without dispute that petitioner violated
the terms and conditions of his probation on multiple occasions. In fact, the record reveals that
petitioner admitted to the alleged violations during the hearings on the petitions for revocation of
his probation.7 Petitioner was given multiple opportunities to conform his behavior to the terms
and conditions of his probation, but chose to defy the law and those conditions. In cases where
the terms and condition of probation are violated, West Virginia Code § 62-12-10 authorizes
revocation of probation.8 Accordingly, we find that the circuit court did not err in denying
petitioner’s Rule 35(b) motion. The sentence imposed upon petitioner by the trial court was
proper as it was within the statutory limits and was not based on an impermissible factor.

        In his second assignment of error, petitioner contends that the circuit court’s February 9,
2015, order did not contain findings of fact and conclusions of law sufficient to show the circuit
court’s reasoning in denying petitioner’s motion for reconsideration of sentence.9 In State v.
Redman, 213 W.Va. 175, 178, 578 S.E.2d 369, 372 (2003), we noted that a trial court’s ruling
pursuant to Rule 35 motions must contain “requisite findings of fact and conclusions of law to
permit meaningful appellate review.” (internal quotations and citations omitted). With this
precedent in mind, and upon our examination of the circuit court’s February 9, 2015, order, we
find that the order shows that the circuit court gave due consideration to the contentions in
petitioner’s Rule 35(b) motion to permit meaningful appellate review.10 Accordingly, we

       7
         When making its ruling on the revocation of petitioner’s probation, the circuit court had
before it evidence related to the extent of petitioner’s medical ailments and the circumstances of
his alleged probation violations, and considered the same in rendering its decision to revoke
petitioner’s probation.
       8
           See W.Va. Code § 62-12-10(c).
       9
        Petitioner was critical of the fact the circuit court’s order did not address the home study
that was ordered by the court at the September 4, 2014, hearing on petitioner’s Rule 35(b)
motion.
       10
         The February 9, 2015, order notes that petitioner “suggests no facts to support” his
arguments “that there was a change in his circumstances which would warrant a modification of
(continued . . .)
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conclude that the circuit court did not abuse its discretion in denying petitioner’s Rule 35(b)
motion.

       For the foregoing reasons, we affirm.

                                                                                     Affirmed.

ISSUED: June 17, 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




the sentence and no basis to reconsider” the circuit court’s April 17, 2014, order revoking
petitioner’s probation.


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