                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia, Plaintiff Below,
Respondent                                                                          FILED
                                                                                April 12, 2016
vs) No. 15-0579 (Berkeley County 14-F-60)                                        RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
David P. Bowers III, Defendant Below,
Petitioner


                              MEMORANDUM DECISION
        Petitioner David P. Bowers III, by counsel Ben J. Crawley-Woods, appeals the Circuit
Court of Berkeley County’s May 15, 2015, order denying his “Motion for Reconsideration and
Reduction of Sentence” made pursuant to Rule 35(b) of the West Virginia Rules of Criminal
Procedure. The State of West Virginia, by counsel Cheryl K. Saville, filed a response. On appeal,
petitioner argues that the circuit court abused its discretion in denying his motion for reduction of
sentence.

        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 February of 2014, a Berkeley County grand jury indicted petitioner on twenty-three
counts of disinterment of a dead body, in violation of West Virginia Code § 61-8-14(a), and one
count of conspiracy in violation of West Virginia Code § 61-10-31. Thereafter, petitioner pled
guilty to all counts as charged in the indictment.

        In July of 2014, the circuit court sentenced petitioner to a cumulative term of
incarceration of fifty-three years. Specifically, petitioner was ordered to serve a term of
incarceration of twenty-six years and the circuit court suspended the remaining twenty-seven
years and placed petitioner on probation for a period of five years. The circuit court also ordered
petitioner to pay the victims restitution in the amount of $16,200.21.

       Thereafter, petitioner filed a “Motion for Reconsideration and Reduction of Sentence,”
made pursuant to Rule 35(b) of the West Virginia Rules of Criminal Procedure, arguing that he
was close to obtaining his GED and that as a result his Level of Service/Case Management




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Inventory score should decrease.1 Subsequently, petitioner filed a supplemental exhibit attaching
certificates indicating that he obtained his GED and completed a pre-vocational program while
incarcerated. Subsequently, the circuit court denied petitioner’s Rule 35(b) motion by order
entered May 15, 2015. In denying petitioner’s motion, the circuit court found that obtaining his
GED “[was] not sufficient evidence to justify leniency and reduction of [petitioner’s] sentence.”
This appeal followed.

       In regard to motions made pursuant to Rule 35(b), we have previously 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.” 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). We find no abuse of
discretion in the circuit court’s order denying petitioner’s motion.

        In the matter before us, petitioner is not challenging the correctness of his sentence but
rather asserts that the circuit court failed to consider his rehabilitative efforts while incarcerated
and considered an impermissible factor. While petitioner argues that the circuit court’s finding
that obtaining “his GED is not sufficient to justify leniency and reduction of [petitioner’s]
sentence” conflicts with “common sense,” we disagree. Though it is commendable that petitioner
has sought continued education and other rehabilitative efforts while incarcerated, the record
does not show that the circuit court abused its discretion in denying petitioner’s motion for this
reason. It is clear that the circuit court’s conclusion is based on sound reasoning, practical
considerations of the crimes, notions of consistency and fairness, and justice for the victims.
Further, we have previously held that “‘[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.’
Syllabus Point 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).” Here, petitioner
       1
           West Virginia Code § 62–12–6(a)(1) and (2), provides, in relevant part, as follows:

             (a) Each probation officer shall:

             (1) Investigate all cases which the court refers to the officer for investigation
                 and shall report in writing on each case;

             (2) Conduct a standardized risk and needs assessment, using the instrument
             adopted by the Supreme Court of Appeals of West Virginia, for any
             probationer for whom an assessment has not been conducted either prior to
             placement on probation or by a specialized assessment officer. The results of
             all standardized risk and needs assessments are confidential[.]



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was sentenced within the statutory limits of both crimes.2 Further, the record shows that the
circuit court did not rely on any impermissible factors. Given the facts of the case, we find that
the circuit court did not abuse its discretion in denying petitioner’s motion for a reduction of
sentence.

       For the foregoing reasons, the circuit court’s May 15, 2015, order denying petitioner’s
motion is hereby affirmed.


                                                                                        Affirmed.

ISSUED: April 12, 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




       2
         For disinterment of a dead body, West Virginia Code § 61-8-14(a) provides for a prison
term of “not more than five years.” For conspiracy, West Virginia Code § 61-10-31 provides for
a prison term of “not less than one nor more than five years.”


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