                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS


State of West Virginia,                                                            FILED
Plaintiff Below, Respondent                                                    November 8, 2019
                                                                                 EDYTHE NASH GAISER, CLERK
vs.) No. 18-0607 (Jackson County 18-F-36)                                        SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA


Ricky Parsons,
Defendant Below, Petitioner


                               MEMORANDUM DECISION


        Petitioner Ricky Parsons, by counsel David B. Richardson, appeals the Circuit Court of
Jackson County’s June 18, 2018, order denying his motion for a reduction of his sentence.
Respondent State of West Virginia, by counsel Holly M. Flanigan, filed a response. On appeal,
petitioner asserts that the circuit court erred in denying his motion for a reduction of his sentence
when he should have been sentenced to community corrections, rather than incarceration, and
when his sentences should have been ordered to run concurrently, rather than consecutively.

       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.

       Petitioner entered into a plea agreement in May of 2018 whereby he agreed to plead guilty
to one count of conspiracy to commit a felony—transferring and receiving stolen property—and
one count of obstruction of an officer in exchange for the State’s agreement to dismiss the other
counts in the indictment and to refrain from filing a recidivist information. The plea agreement
expressly provided that petitioner’s sentence would be left to the sole discretion of the circuit court
and that petitioner would have no right to withdraw his plea in the event that he was displeased
with his sentence.

       In May of 2018, the circuit court held a sentencing hearing. Petitioner requested that he be
sentenced to community corrections rather than incarceration and stated that he had successfully
completed probation in the past. Petitioner contended that his criminal behavior stemmed from not
working and that he planned to obtain employment. Regarding his criminal history, petitioner
averred that his record contained “primarily misdemeanors . . . the large majority [of which] have
all been dismissed.” If sentenced to incarceration, petitioner requested that the sentences run

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concurrently. The State requested that petitioner be sentenced to incarceration. The State noted
petitioner’s substantial criminal history, including felony charges that were ultimately pled down
to misdemeanors. The State further pointed out that petitioner had previously been granted every
alternative sentence available, yet continued to engage in criminal behavior. Indeed, during the
pendency of the case, petitioner left the State without permission, was charged with domestic
battery in another state, and was incarcerated. After being released, petitioner “picked up an
additional obstruction” charge and was returned to jail. Petitioner also failed to comply with the
presentence investigation, and the investigating officer opined in the report that petitioner had not
accepted responsibility for his actions or expressed remorse. Lastly, the State noted that even since
the presentence investigation had been conducted, petitioner was charged with additional crimes
including driving on a revoked license and fleeing from an officer.

         Ultimately, the circuit court sentenced petitioner to not less than one, nor more than five,
years of incarceration for the conspiracy charge and to a determinate term of one year of
incarceration for the obstruction charge. The circuit court ordered that the sentences run
consecutively. Petitioner did not file a direct appeal with this Court, but moved the circuit court to
reduce his sentence pursuant to Rule 35(b) of the West Virginia Rules of Criminal Procedure in
June of 2018. Without holding a hearing on the matter, the circuit court denied petitioner’s motion,
noting that all matters and circumstances contained in the motion were carefully scrutinized at the
sentencing hearing and that it had announced its reasons for the sentence imposed at that hearing.
It is from the June 18, 2018, order denying petitioner’s motion for a reduction of sentence that he
appeals.

       We have previously established 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, State v. Marcum, 238 W. Va. 26, 792 S.E.2d 37 (2016).

        On appeal, petitioner argues that the circuit court erred in denying his motion to reduce his
sentence. He claims that the circuit court abused its discretion in sentencing petitioner to
incarceration rather than a form of alternative sentencing such as community corrections.
According to petitioner, the circuit court failed to acknowledge that he “accepted responsibility for
his criminal conduct,” failed to give sufficient weight to the fact that he had never previously been
convicted of a felony, and also failed to appreciate the substantial amount of time he had been
incarcerated prior to sentencing. Petitioner also argues that the circuit court erred in ordering that
his sentences run consecutively rather than concurrently. Petitioner asserts that he acknowledged
his prior misdemeanor convictions and history of bad behavior, and notes that “the recent boom”
in the pipeline industry has developed “lucrative employment opportunit[ies] . . . in Jackson
[County] and surrounding counties for persons with the unique skills of a certified pipefitter.” By

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requiring that he serve his sentences consecutively, petitioner contends the circuit court imposed
an unduly harsh sanction that will prevent him from finding gainful employment and supporting
his children. We find petitioner’s arguments to be without merit.

        Petitioner’s assignments of error are outside the scope of appeal of a ruling on a Rule 35(b)
motion. In Marcum, we noted that motions under Rule 35(b) are “essentially . . . plea[s] for
leniency from a presumptively valid conviction.” 238 W. Va. at 31, 792 S.E.2d at 42 (citation
omitted). Challenges to a defendant’s conviction or the validity of a sentence imposed “should be
made through a timely, direct criminal appeal.” Id. In sum, “Rule 35(b) of the West Virginia Rules
of Criminal Procedure only authorizes a reduction in sentence. Rule 35(b) is not a mechanism by
which defendants may challenge their convictions and/or the validity of their sentencing.” Id. at
27, 792 S.E.2d at 38, syl. pt. 2. Lastly, in considering a defendant’s Rule 35(b) motion, “circuit
courts generally should consider only those events that occur within the 120–day filing period.”
Id. at 27, 792 S.E.2d at 38, syl. pt. 3, in part (emphasis added).

         Petitioner offered essentially no information relevant to any events that occurred after
sentencing to support his plea for leniency. As noted above, circuit courts should generally
consider only those events that occurred following sentencing, but prior to the filing of a Rule
35(b) motion. Here, petitioner did not argue, nor cite to any portion of the record, showing any
change in circumstances or remedial efforts made by him following his sentencing. Rather,
petitioner essentially asks this Court to find that the circuit court abused its discretion in imposing
sentences of incarceration which are set to run consecutively. While petitioner argues that the
circuit court should have afforded him leniency so that he could obtain employment and support
his family, he cites to no authority demonstrating that the circuit court abused its discretion in
failing to grant relief based upon his self-serving, unsubstantiated claims of potential employment.
In sum, petitioner’s arguments are outside the scope of this appeal given that he provided no
information regarding events that occurred in the 120-day filing period. Accordingly, we conclude
that the circuit court did not abuse its discretion in denying petitioner’s Rule 35(b) motion for a
reduction of sentence.

        For the foregoing reasons, we affirm the circuit court’s June 18, 2018, order denying
petitioner’s Rule 35(b) motion.
                                                                                    Affirmed.

ISSUED: November 8, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Evan H. Jenkins

NOT PARTICIPATING:

Justice Tim Armstead
Justice John A. Hutchison

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