                                                         STATE OF WEST VIRGINIA
                                                       SUPREME COURT OF APPEALS


    State of West Virginia, Plaintiff Below,
    Respondent                                                                           FILED
                                                                                       October 21, 2013
                                                                                    RORY L. PERRY II, CLERK
    vs) No. 13-0301 (Marion County 88-F-81)                                       SUPREME COURT OF APPEALS
                                                                                      OF WEST VIRGINIA 

    James S., Defendant Below,
    Petitioner


                                                            MEMORANDUM DECISION

            Petitioner James S. appeals, pro se, the Circuit Court of Marion County’s March 28, 2013
    order denying his motion for correction of sentence.1 The State, by counsel Scott E. Johnson, filed
    a response. Petitioner filed a reply and a supplemental appendix. On appeal, petitioner alleges that
    the circuit court erred in denying his motion for correction of sentence without appointing counsel
    or holding a hearing on the same.

           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.

            In February of 1987, petitioner was arrested under Marion County indictment number 87-
    F-12 charging him with incest and held in jail for two weeks, at which time the indictment nolle
    prosequed. Thereafter, petitioner was indicted under Marion County case number 87-F-40. In
    February of 1988, petitioner was convicted of incest in case number 87-F-40. However, this Court
    reversed that conviction in State v. James Edward S., 184 W.Va. 408, 400 S.E.2d 843 (1990), and
    the charges against petitioner were dismissed. Around that same time, petitioner was again
    indicted and arrested under Marion County case number 88-F-81. This indictment charged
    petitioner with multiple counts of sexual crimes against a different daughter than the victim of
    incest in Marion County case number 87-F-40.

           Following a jury trial, petitioner was convicted of one count of first degree sexual assault,
    one count of second degree sexual assault, and one count of incest in Marion County case number
    88-F-81. Petitioner was thereafter sentenced to an aggregate sentence of thirty to fifty-five years

                                                                       
           1
                 In keeping with this Court’s policy of protecting the identity of minors and victims of
    sexual offenses, petitioner will be referred to by his last initial throughout this memorandum
    decision.
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of incarceration, with credit for 330 days of time served. Importantly, the Marion County cases in
which petitioner was convicted concerned separate victims and allegations, and were in no way
related.

        In February of 2013, petitioner filed a motion for correction of sentence seeking to have
credit for time served on the charges in case numbers 87-F-12 and 87-F-40 applied to his sentence
in case number 88-F-81. Without appointing counsel or holding a hearing on the motion, the
circuit court dismissed the same by order entered on March 28, 2013.

        Upon our review, the Court finds no error in regard to the circuit court denying
petitioner’s motion for judgment of acquittal without appointing counsel or holding a hearing. 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.” Syl.
       Pt. 1, State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).

Syl. Pt. 1, Barritt v. Painter, 215 W.Va. 120, 595 S.E.2d 62 (2004). The record shows that the
circuit court did not abuse its discretion in denying petitioner’s motion for correction of sentence
because petitioner sought to have credit for time served on unrelated charges applied to his
current sentence.

        This Court has previously held that criminal defendants are not entitled to credit for time
served in similar situations. See State v. Wears, 222 W.Va. 439, 665 S.E.2d 273 (2008) (denying a
defendant’s request for credit for time served between the State’s voluntary dismissal of an
indictment and the defendant’s reindictment because he remained in custody serving time on
unrelated charges). Simply put, petitioner is not entitled to have time served credit applied to his
current sentence for time spent in custody on unrelated charges. Further, it is clear that the circuit
court could decide this legal issue without appointment of counsel or the holding of a hearing on
petitioner’s motion, and petitioner cites to no authority requiring either. As such, the Court finds
no error in the circuit court denying petitioner’s motion without first appointing counsel or
holding a hearing on the same.

       For the foregoing reasons, the circuit court’s March 28, 2013 order denying petitioner’s
motion for correction of sentence is hereby affirmed.


                                                                                           Affirmed.




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ISSUED: October 21, 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
 
        




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