                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia,                                                           FILED
                                                                                 April 5, 2013
Plaintiff Below, Respondent                                                 RORY L. PERRY II, CLERK

                                                                          SUPREME COURT OF APPEALS

                                                                              OF WEST VIRGINIA

vs.) No. 12-0123 (Jefferson County 94-F-49)

Ricky L. Penwell,
Defendant Below, Petitioner

                             MEMORANDUM DECISION

       Petitioner Ricky L. Penwell, pro se, appeals the circuit court’s order, entered January 10,
2012, denying his motion for reconsideration and his supplemental motion for reconsideration
pursuant to Rule 35(a) of the West Virginia Rules of Criminal Procedure. The State, by Laura
Young, its attorney, filed a summary response.

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

         In 1995, in Felony No. 94-F-49, a jury convicted petitioner of aggravated robbery and
assault during the commission of a felony, along with two misdemeanors. Petitioner was sentenced
to life for recidivism pursuant to West Virginia Code § 61-11-18. Petitioner’s prior felonies were
grand larceny (No. 85-F-84), malicious assault and unlawful assault (No. 87-F-25), and failure to
appear (No. 89-F-1).

       This Court affirmed petitioner’s convictions in the instant case, in State v. Penwell, 199
W.Va. 111, 483 S.E.2d 240 (1996). Petitioner subsequently had habeas corpus proceedings which
included two hearings. The circuit court denied habeas relief by an order entered May 29, 2001.
This Court refused petitioner’s appeal from the denial of relief.

        In July 2005, petitioner filed a second petition for a writ of habeas corpus based upon
allegations of ineffective assistance of counsel in his first such proceeding. Counsel was
appointed, and a hearing was conducted on January 19, 2006, where the circuit court heard the
parties’ arguments. The circuit court determined that an evidentiary hearing was not necessary and

                                                1
issued a final order granting the respondent warden’s motion to dismiss. On September 6, 2006,
this Court refused petitioner’s appeal of the denial of his second petition.

        In November 2009, petitioner filed a Rule 35(a) motion for reconsideration. On August 20,
2011, petitioner filed a supplemental motion for reconsideration in which he argued that the 1994
amendment to West Virginia Code § 61-11-18 was retroactively applied to him, which was an
unconstitutional application of the recidivist statute. The circuit court denied petitioner’s motions
in an order entered January 10, 2012. As related to petitioner’s supplemental motion, the circuit
court determined that “[petitioner]’s arguments, that his sentence is illegal, have no merit.”1

        In Syllabus Point One of State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996), this Court
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.

On appeal, petitioner argues his life recidivist sentence is illegal because his three prior felony
convictions were obtained prior to the effective date of the 1994 amendment to West Virginia
Code § 61-11-18. The State argues that the effect of the 1994 amendment was to prohibit
individuals who were convicted of first degree murder, second degree murder, and first degree
sexual assault from being eligible for parole if again convicted of one of those offenses. Petitioner
never committed any of those offenses. The State argues that the language of § 61-11-18 that
applies to petitioner was unchanged by the 1994 amendment. The language is: “[w]hen it is
determined, as provided in section nineteen of this article, that such person shall have been twice
before convicted in the United States of a crime punishable by confinement in a penitentiary, the
person shall be sentenced to be confined in the state correctional facility for life.” W.Va. Code §
61-11-18(c).2 After careful consideration, this Court concludes that the circuit court did not abuse
its discretion in denying petitioner’s supplemental motion for reconsideration.

      For the foregoing reasons, we find no error in the decision of the Circuit Court of Jefferson
County and affirm its January 10, 2012 order denying petitioner’s motions for reconsideration.



1
    Petitioner states in his brief that it is the only claim he is pursuing on appeal.
2
  The 1994 amendment did designate the language as subsection (c), whereas it previously had no
designation, and made certain minor grammatical changes. The changes did not alter the legal
effect.
                                                     2
                                      Affirmed.

ISSUED: April 5, 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




                                  3
