                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

State of West Virginia,                                                              FILED
Plaintiff Below, Respondent
                                                                                   May 22, 2017
                                                                                   RORY L. PERRY II, CLERK
vs) No. 16-0501 (Wood County 16-F-59)                                            SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA

John Patrick Maudlin,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
       Petitioner John Patrick Maudlin, by counsel Michele Rusen, appeals the Circuit Court of
Wood County’s April 29, 2016, order denying his Rule 35(b) motion for reduction of sentence.
The State, by counsel Shannon Frederick Kiser, filed a response. Petitioner filed a reply. On
appeal, petitioner argues that the circuit court abused its discretion in denying his motion for
reduction of sentence because he should have been entitled to alternative sentencing.

        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, this 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 2016, petitioner pled guilty to one count of false pretense pursuant to a
plea agreement with the State. At the time, petitioner was undergoing chemotherapy treatment
for cancer. At the plea hearing, petitioner requested that the home incarceration condition of his
bond be removed so that he could obtain medical treatment in the State of Ohio. The circuit court
granted this request and set the matter for sentencing.

        In April of 2016, the circuit court held a sentencing hearing. Pursuant to the plea
agreement, the State made a non-binding recommendation that the circuit court grant petitioner
either probation or home incarceration. During the hearing, the circuit court found that
petitioner’s presentence investigation report included an extensive criminal history dating back
to approximately 2000. Petitioner’s many convictions included crimes such as the unauthorized
practice of medicine, petit larceny, false pretense, being a fugitive from justice, federal mail
fraud, possession of a controlled substance, obstruction of justice, and domestic battery. The
circuit court also found that the presentence investigation report listed petitioner as being in the
medium range for both a pro-criminal attitude and an anti-social pattern, as evidenced by his
“support[] of crime” and “his pattern of generalized trouble.” Petitioner then argued for
alternative sentencing because of his lack of a violent criminal history and his recent enrollment
in college. The circuit court, however, denied petitioner’s request and imposed a term of

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incarceration of one to ten years. The circuit court entered the sentencing order on April 11,
2016. Thereafter, the circuit court entered two orders temporarily staying petitioner’s sentence
due to his admission to the hospital.

       On April 20, 2016, petitioner filed a motion for reconsideration of his sentence in which
he again argued for imposition of alternative sentencing.1 The circuit court denied this motion by
order entered on April 29, 2016. It is from this order that petitioner appeals.

       We have previously established the following 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.” 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). Upon our review, we find no
error in the proceedings below.

        Petitioner’s entire argument in support of his appeal is that the circuit court erred in
denying his Rule 35(b) motion because he should have been entitled to alternative sentencing.
According to petitioner, his lack of a violent criminal history, recent enrollment in college, and
medical condition all entitled him to alternative sentencing and, accordingly, the circuit court
erred in denying his motion. We do not agree. “‘When considering West Virginia Rules of
Criminal Procedure 35(b) motions, circuit courts generally should consider only those events that
occur within the 120–day filing period . . . .’ Syl. Pt. 5, State v. Head, 198 W.Va. 298, 480
S.E.2d 507 (1996).” Marcum, 238 W.Va. at --, 792 S.E.2d at 38, Syl. Pt. 3. In his motion for
reduction of sentence, petitioner relied upon the same arguments that he presented at the
underlying sentencing hearing. As such, petitioner provided the circuit court with no new factual
basis upon which to grant a reduction in petitioner’s sentence. Accordingly, we find no abuse of
discretion in the circuit court’s denial of petitioner’s Rule 35(b) motion.

        Finally, to the extent that petitioner argues that his underlying sentence was improper, we
note that “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 --, 792 S.E.2d at 38, Syl. Pt. 2. Simply
put, petitioner is appealing the circuit court’s denial of his Rule 35(b) motion, which precludes
our review of the underlying sentence. Accordingly, we decline to address petitioner’s arguments
regarding the appropriateness of his underlying sentence.

       1
        The Court notes that the West Virginia Rules of Criminal Procedure do not provide for a
“motion for reconsideration” in criminal proceedings, other than Rule 35 which allows a circuit
court to revisit its sentencing order for purposes of either correcting or reducing the sentence
imposed.
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       For the foregoing reasons, the circuit court’s April 29, 2016, sentencing order is hereby
affirmed.


                                                                                      Affirmed.

ISSUED: May 22, 2017

CONCURRED IN BY:

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




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