                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS



State of West Virginia, Plaintiff Below,                                            FILED
Respondent                                                                         March 31, 2014
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs) No. 13-0434 (Monongalia County 10-F-106 & 11-F-43)                           OF WEST VIRGINIA


James G., Defendant Below,
Petitioner


                                 MEMORANDUM DECISION

       Petitioner James G., by counsel Cheryl L. Warman, appeals the Circuit Court of
Monongalia County’s March 25, 2013, order denying his motion for reconsideration of sentence
made pursuant to Rule 35(b) of the West Virginia Rules of Criminal Procedure.1 The State, by
counsel Laura Young, filed a response. On appeal, petitioner alleges that the circuit court erred in
denying his motion because he should have received probation or 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, 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.

        In May of 2010, petitioner was indicted in case 10-F-106 on fourteen counts of various
sexual offenses against S.B., a female minor, and S.S., a male minor. These included eight counts
of sexual abuse by a parent, guardian, or custodian, and six counts of first degree sexual assault.
Thereafter, in January of 2011, petitioner was indicted in case 11-F-43 on four counts of sexual
crimes against N.D., a male minor, including two counts of sexual abuse by a parent, guardian, or
custodian, one count of first degree sexual assault, and one count of first degree sexual abuse. The
two cases were consolidated for trial, prior to which petitioner’s counsel sought a forensic
psychological evaluation to assess petitioner’s competency to stand trial and criminal
responsibility. Thereafter, Dr. William Fremouw issued a report that petitioner should be
considered both competent to stand trial and criminally responsible. Without objection from
petitioner, the circuit court entered an order adopting Dr. Fremouw’s findings.



       1
         In keeping with this Court’s policy of protecting the identity of minors and the victims of
sexual crimes, petitioner will be referred to by his last initial throughout the memorandum
decision. See, e.g., State v. Larry A.H., 230 W. Va. 709, 742 S.E.2d 125 (2013) (per curiam);
State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
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        Pursuant to a plea agreement, petitioner entered Alford pleas to three counts of sexual
abuse by a parent, guardian, or custodian and the remaining counts from both indictments were
dismissed in January of 2012.2 In September of 2012, the circuit court sentenced petitioner to
three terms of incarceration of ten to twenty years, said sentences to run concurrently. The circuit
court denied petitioner’s request for alternative sentencing and further imposed a period of fifty
years of supervision following petitioner’s release. Petitioner then filed a motion for
reconsideration of sentence pursuant to Rule 35(b) of the West Virginia Rules of Criminal
Procedure seeking alternative sentencing in the form of probation or home incarceration, and the
circuit court held a hearing on the same. By order entered on March 25, 2013, the circuit court
denied petitioner’s motion for reconsideration of sentence. It is from this order that petitioner
appeals.

       In regard to motions made pursuant to Rule 35(b), 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.”
       Syllabus Point 1, State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).

Syl. Pt. 1, State v. Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010). Upon our review, we find no
abuse of discretion in the circuit court’s denial of petitioner’s motion. In support of his
assignment of error, petitioner simply asserts that the circuit court failed to consider several
factors in reaching its decision, including that he is not addicted to alcohol or other drugs, has
previously been treated for depression, and is also a victim of sexual abuse. However, the Court
finds no merit to this argument, as there is nothing in the record to illustrate that the circuit court
failed to give “due consideration” to these factors, as petitioner alleges. That the circuit court did
not grant petitioner the relief sought does not illustrate a failure to properly consider all relevant
factors before the circuit court.

        We have previously held that “‘[t]he decision of a trial court to deny probation will be
overturned only when, on the facts of the case, that decision constituted a palpable abuse of
discretion.’ Syl. Pt. 2, State v. Shafer, 168 W.Va. 474, 284 S.E.2d 916 (1981).” Syl. Pt. 3, State v.
Shaw, 208 W.Va. 426, 541 S.E.2d 21 (2000). Upon our review, the Court finds no abuse of
discretion in the circuit court’s denial of petitioner’s request for probation or alternative
sentencing. West Virginia Code § 62-12-3 grants circuit courts discretion in ordering a defendant
to serve a sentence on probation. The record in this matter is replete with facts supporting the
circuit court’s sentence, including that he originally faced over 150 years of incarceration if
convicted of all the charges with which he was indicted. Further, the Court notes that petitioner
perpetrated sexual crimes against three different minors. As such, we find no abuse of discretion
in denying petitioner probation or home incarceration.

       2
           North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970).
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       For the foregoing reasons, the circuit court’s March 25, 2013, order denying petitioner’s
motion is hereby affirmed.


                                                                                      Affirmed.

ISSUED: March 31, 2014

CONCURRED IN BY:

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




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