                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS


State of West Virginia, Plaintiff Below,                                                 FILED
Respondent                                                                           October 20, 2014
                                                                                    RORY L. PERRY II, CLERK
                                                                                  SUPREME COURT OF APPEALS
vs) No. 13-1284 (Marion County 95-F-5)                                                OF WEST VIRGINIA


Ross Jenkins, Defendant Below,
Petitioner


                                  MEMORANDUM DECISION
        Petitioner Ross Jenkins, by counsel Michael Safcsak, appeals the Circuit Court of Marion
County’s December 19, 2013, amended sentencing order that granted his motion for correction
of sentence made pursuant to Rule 35(a) of the West Virginia Rules of Criminal Procedure. The
State, by counsel Christopher Dodrill, filed a response. On appeal, petitioner alleges that the
circuit court’s amended sentencing order violates principles of double jeopardy because it
increased his original sentence.

        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 February of 1995, petitioner was indicted on one count of burglary without breaking
and entering, in violation of West Virginia Code § 61-3-11, and two counts of second degree
sexual assault, in violation of West Virginia Code § 61-8B-4. Petitioner’s jury trial concluded on
November 8, 1995, with convictions on all three counts. In December of 1995, the State filed a
recidivist information pursuant to West Virginia Code § 61-11-19, stating that petitioner had
been convicted of two prior felonies.1

        On February 16, 1996, the circuit court held a sentencing hearing. Initially, the circuit
court sentenced petitioner to a term of incarceration of one to fifteen years on one count of
burglary and ten to twenty-five years of incarceration on each count of second degree sexual
assault, with credit for 174 days served, said sentences to run consecutively. After ordering
petitioner’s initial sentence, the circuit court modified the sentence to a single life sentence for all
three crimes pursuant to the applicable provisions of the recidivist statute. W.Va. Code § 61-11­
18. However, the State subsequently moved to withdraw the recidivist information, and the

        1
            The record is silent as to petitioner’s prior criminal convictions.
                                                           1
circuit court granted the motion. The circuit court then reinstated its original sentence, which
amounted to an effective sentencing of twenty-one to sixty-five years in prison.

        On November 21, 2012, petitioner filed a pro se motion for correction of his sentence
pursuant to Rule 35 of the West Virginia Rules of Criminal Procedure arguing that it was
inappropriate to allow the State to withdraw the recidivist information and that he should have
received a single life sentence pursuant to the recidivist statute. Petitioner was appointed counsel
and the circuit court held a hearing on petitioner’s motion in October of 2013. It is undisputed
that the parties agreed that the State should not have been permitted to withdraw its recidivist
information during the original sentencing hearing in 1996. The circuit court stated that
petitioner’s original sentence was illegal and petitioner was “entitled to a correction . . . .” The
circuit court clearly explained to petitioner the consequences of granting his motion to correct his
sentence, which included the possibility of receiving an increased sentence.2 On December 9,
2013, the circuit court entered petitioner’s amended sentencing order, which sentenced petitioner
to a term of incarceration of one to fifteen years for one count of burglary, a term of
incarceration of ten to twenty-five years for one count of second degree sexual assault, and a life
recidivist sentence on the second count of second degree sexual assault, said sentences to run
consecutively, for a total of twenty-six to forty years of incarceration. Petitioner was also granted
credit of 6,632 days. It is from this order that petitioner appeals.

       For Rule 35 motions, we apply 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., State v. Allen, 224 W.Va. 444, 686 S.E.2d 226 (2009).

        Upon review of the record, this Court finds no merit to petitioner’s appeal. Petitioner
argues that the circuit court erred in granting his Rule 35 motion because it violated principles of
double jeopardy by increasing his sentence in violation of State ex rel. Roberts v. E.H. Tucker,
143 W.Va. 114, 100 S.E.2d 550 (1957). However, petitioner’s argument ignores the fact that his
original sentence was illegal, and that he was appropriately resentenced by the circuit court
within the statutory guidelines by order entered on December 9, 2013. This Court has stated that



       2
         After explaining petitioner’s new sentencing options, the circuit court asked petitioner
“So, now with that understanding, do you want me to correct the sentences and sentence you to 26
to 40 [years], or do you want to keep the [original] 21 to 65 [years]?” Petitioner responded, “I’ll
take the 26 to 40 [years], Your Honor.”

                                                      2
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               [w]here an accused is convicted of an offense punishable by confinement
       in the penitentiary and, after conviction but before sentencing, an information is
       filed against him setting forth one or more previous felony convictions, if the jury
       find or, after being duly cautioned, the accused acknowledges in open court that
       he is the same person named in the conviction or convictions set forth in the
       information, the court is without authority to impose any sentence other than as
       prescribed in Code, 61-11-18, as amended.

Syl. Pt. 3, State ex rel. Cobb v. Boles, 149 W.Va. 365, 141 S.E.2d 59 (1965). Here, the circuit
court’s original sentencing order was illegal because it failed to sentence petitioner pursuant to
West Virginia Code § 61-11-18. Additionally, the parties agreed that petitioner’s original
sentence was improper because the State should not have been permitted to withdraw its
recidivist information during the original sentencing. Therefore, petitioner was entitled to a
corrected sentence pursuant to Rule 35(a) of the West Virginia Rules of Criminal Procedure.

        This Court has held that “[a] trial judge may impose sentences which run consecutively
for multiple convictions rendered on the same day in which one of the convictions is subject to
enhancement pursuant to W. Va.Code § 61–11–19 (1943).” Syl. Pt. 3, State v. Housden, 184
W.Va. 171, 399 S.E.2d 882 (1990). Our review of the record in the present case shows that
during petitioner’s Rule 35 hearing, the circuit court thoroughly explained petitioner’s sentencing
options including the possibility of receiving an increased sentence. Pursuant to our holding in
Housden, the circuit court properly sentenced petitioner for each crime within the applicable
statutory guidelines and used one of petitioner’s convictions to impose a life sentence under the
recidivist statute, with the sentences to run consecutively.

        For the foregoing reasons, the circuit court’s December 19, 2013, order granting
petitioner’s motion is hereby affirmed.


                                                                                         Affirmed.

ISSUED: October 20, 2014

CONCURRED IN BY:

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

DISSENTING:

Justice Menis E. Ketchum



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