                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS



State of West Virginia,                                                                  FILED
Plaintiff Below, Respondent                                                            March 12, 2013
                                                                                   RORY L. PERRY II, CLERK
                                                                                 SUPREME COURT OF APPEALS
vs) No. 12-0268 (Ohio County 10-F-23)                                                OF WEST VIRGINIA


Clarence Ray Hoberek,
Defendant Below, Petitioner


                                  MEMORANDUM DECISION

       Petitioner’s appeal, by counsel Randy Dean Gossett, arises from the Circuit Court of Ohio
County, wherein the circuit court denied his motion for modification of sentence by order entered
on January 22, 2012. The State, by counsel Marland L. Turner, has filed its response.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        By order entered on May 5, 2010, petitioner was sentenced to an aggregate term of
incarceration of six to seventeen years following his entry of guilty pleas, pursuant to a plea
agreement, to the following charges: fleeing in a vehicle while under the influence of alcohol;
driving under the influence of alcohol, third offense; and, driving while revoked for driving under
the influence, third offense. On August 27, 2010, petitioner filed a motion for modification of
sentence, which the circuit court denied by order entered on January 22, 2012.

        On appeal, petitioner alleges that the circuit court erred in denying his motion because it
applied an incorrect standard of review and because it erred in finding that nothing had occurred
within 120 days after entry of the final order to justify relief. According to petitioner, the circuit
court cited language from a concurrence in State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996),
and therefore applied an inappropriate standard in ruling on his motion. Further, petitioner argues
that he presented medical evidence to the circuit court concerning his multiple head traumas
which renders its finding as to a lack of justification for relief erroneous.

        In response, the State argues that the circuit court did not apply the wrong standard and, in
fact, did not cite to the concurring opinion that petitioner alleges was used. Further, the State
argues that petitioner himself admits that the medical events he wanted the circuit court to
consider did not occur within the 120-day period after the final order was entered. According to

                                                      1
­
the State, petitioner has cited to no law which would require a circuit court to consider events that
occurred fifteen years prior to sentencing. Further, because petitioner had previous opportunities
to present this evidence, the ends of justice do not require consideration of these events.

       To begin, we have 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. 3, State v. Eilola, 226 W.Va. 698, 704 S.E.2d 698 (2010). Upon our review, the Court
finds no error in the circuit court’s denial of petitioner’s motion. As the State noted, the circuit
court cited to the applicable standard of review for Rule 35 motions when it stated that “nothing
occurred within [120] days after the final order to justify any relief under Rule 35(a) or (b).” See
Syl. Pt. 5, State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996). That the circuit court also
included language which petitioner attributes to a concurring opinion from that case does not
render the decision erroneous. Further, the circuit court was correct in finding that nothing had
occurred in the 120 days since the entry of the final order to justify relief, and petitioner himself
admits that the events he seeks to present happened well before his sentencing. As such, the Court
does not find error in regard to this finding.

       For the foregoing reasons, the circuit court’s order denying petitioner’s motion for
modification of sentence is hereby affirmed.


                                                                                          Affirmed.

ISSUED: March 12, 2013

CONCURRED IN BY:

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




                                                     2
­
