                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia, Plaintiff Below,                                            FILED
Respondent                                                                      March 16, 2015
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
vs) No. 14-0659 (Berkeley County 13-F-38)                                       OF WEST VIRGINIA


Derek Brichner, Defendant Below,
Petitioner


                              MEMORANDUM DECISION
        Petitioner Derek Birchner, by counsel Stephanie E. Scales-Sherrin, appeals the Circuit
Court of Berkeley County’s June 5, 2014, order denying his motion to allow counsel to withdraw
and motion for reduction of sentence. The State, by counsel Cheryl K. Saville, filed a response
supporting the circuit court’s order. On appeal, petitioner alleges that he received ineffective
assistance of counsel and that the circuit court erred in denying his motions to allow counsel to
withdraw and for reduction of 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 2013, a Berkeley County Grand Jury indicted petitioner on two counts of
sexual abuse in the first degree. In December of that same year, petitioner entered into a plea
agreement whereby he would plead guilty, under Kennedy circumstances, to one count of first
degree sexual abuse and the remaining count would be dismissed. See Kennedy v. Frazier, 178
W.Va. 10, 357 S.E.2d 43 (1987). Pursuant to the agreement, any penitentiary sentence would run
concurrently to a sentence he was already serving for delivery of cocaine. The agreement also
provided that the parties could argue for any legal sentence and required that petitioner register as
a sex offender for life and submit to twenty years of supervised release. Petitioner entered his plea
on December 5, 2013. During the hearing, the circuit court held a lengthy discussion with the
parties concerning the plea agreement, including whether petitioner would undergo a physical,
mental, and psychiatric study as required by West Virginia Code § 62-12-2(e) in order to be
eligible for consideration of probation due to his conviction under West Virginia Code § 61-8B-7.
Because petitioner was currently incarcerated on other charges, counsel was unsure if the Chief
Public Defender would authorize the expenditure of funds for the evaluation, especially in light of
the opinion that petitioner would be a highly unlikely candidate for probation. Ultimately,
petitioner chose to move forward by entering his plea.
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        In January of 2014, the circuit court held a sentencing hearing. No evaluations were
completed prior to the hearing, but petitioner did not object to proceeding with sentencing. The
circuit court sentenced petitioner to a term of incarceration of five to twenty-five years for his
conviction of first degree sexual abuse to run concurrently with the sentence he was already
serving for a felony drug offense. Further, the circuit court ordered petitioner to register as a sex
offender for life and imposed twenty years of supervised release. Thereafter, petitioner, by
counsel, filed a motion for reduction of sentence pursuant to Rule 35(b) of the West Virginia
Rules of Criminal Procedure. In April of 2014, the circuit court held a hearing on petitioner’s
motion, during which he made oral motions, through counsel, for new counsel, a psychological
evaluation, and resentencing for the circuit court to consider parole. The circuit court directed the
parties to file supplemental briefing on these issues because they were not addressed in the motion
for reduction of sentence. After receiving supplemental briefing, the circuit court entered an order
in June of 2015 denying the motions for reduction of sentence and motion to allow counsel to
withdraw. It is from this order that petitioner appeals.

        As an initial matter, we observe that petitioner’s ineffective assistance of counsel claims
are not properly before this Court on a direct appeal. We addressed this issue in Syllabus Point 10
of State v. Triplett, 187 W.Va. 760, 421 S.E.2d 511 (1992), as follows:

       It is the extremely rare case when this Court will find ineffective assistance of
       counsel when such a charge is raised as an assignment of error on a direct appeal.
       The prudent defense counsel first develops the record regarding ineffective
       assistance of counsel in a habeas corpus proceeding before the lower court, and
       may then appeal if such relief is denied. This Court may then have a fully
       developed record on this issue upon which to more thoroughly review an
       ineffective assistance of counsel claim.

See State v. Smith, 226 W.Va. 487, 493 n. 6, 702 S.E.2d 619, 625 n. 6 (2010) (“Because we do not
address the defendant’s proportionality arguments on the merits—other than concluding that it is
not properly raised on direct appeal—the defendant is not barred from raising that issue in a
petition for writ of habeas corpus ad subjiciendum.”). Upon our review, we find that the record in
this case is insufficient to address the merits of petitioner’s ineffective assistance of counsel
claims.

       As to petitioner’s allegation that the circuit court erred in denying his motions to allow
counsel to withdraw and for reconsideration of sentence, we find no error. 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


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       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). Petitioner’s argument in
support of this assignment of error is again couched in terms of ineffective assistance of counsel.
Specifically, petitioner argues that the circuit court abused its discretion in denying his motions
because he was not able to fulfill the terms of the plea bargain by arguing for the lawful sentence
of probation absent the required evaluation. However, the Court finds no merit to this argument.
In denying petitioner’s motion for reduction of sentence, the circuit court did not abuse its
discretion, especially in light of our prior holdings that “‘[p]robation is a matter of grace and not a
matter of right.’ Syllabus Point 1, State v. Rose, 156 W.Va. 342, 192 S.E.2d 884 (1972).” Syl. Pt.
3, State v. Jones, 216 W.Va. 666, 610 S.E.2d 1 (2004).

        Moreover, we have previously held that “‘[s]entences imposed by the trial court, if within
statutory limits and if not based on some [im]permissible factor, are not subject to appellate
review.’ Syllabus Point 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504(1982).” State v.
Slater, 222 W.Va. 499, 507, 665 S.E.2d 674, 682 (2008). As noted above, petitioner was
sentenced to a term of incarceration of five to twenty-five years for his conviction of first degree
sexual abuse. Pursuant to West Virginia Code § 61-8B-7(c), a person convicted of first degree
sexual abuse when the victim is less than twelve years old, as was the case herein, shall be
imprisoned for a term of “not less than five nor more than twenty-five years . . . .” Petitioner’s
sentence for first degree sexual abuse does not exceed the statutory maximum and is, therefore,
not reviewable on appeal.

        Finally, the Court finds no merit in petitioner’s argument that the circuit court abused its
discretion in denying his motion to allow counsel to withdraw. Again, this argument is premised
upon petitioner’s allegation that trial counsel was ineffective. However, the Court finds that
granting the motion below was unnecessary in light of the circuit court’s denial of petitioner’s
motion for reduction of sentence. As such, we find no error.

       For the foregoing reasons, the circuit court’s June 5, 2014, order resentencing petitioner is
hereby affirmed.


                                                                                            Affirmed.

ISSUED: March 16, 2015

CONCURRED IN BY:

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

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