                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


                                                                                    FILED
Jonathan Lind,
Petitioner Below, Petitioner
                                                                                  May 31, 2019
                                                                                EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
vs) No. 17-0897 (Kanawha County 16-P-37 and 06-F-299)                               OF WEST VIRGINIA



Donnie Ames, Superintendent,
Mt. Olive Correctional Complex,
Respondent Below, Respondent


                               MEMORANDUM DECISION
       Petitioner Jonathan Lind, pro se, appeals the September 27, 2017, order of the Circuit Court
of Kanawha County denying (1) petitioner’s motions to alter or amend the judgment in his third
habeas corpus proceeding; and (2) petitioner’s motions for reduction of sentence in his underlying
criminal case.1 Respondent Donnie Ames, Mt. Olive Correctional Complex,2 by counsel Scott E.
Johnson, filed a summary response. Petitioner filed a reply.

       The 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 orders is appropriate under Rule 21 of the
Rules of Appellate Procedure.


       1
         Following the 2015 motion for reduction of sentence, petitioner filed motions for a hearing
and appointment of counsel which the circuit court dismissed as moot. Because we find that the
circuit court lacked jurisdiction to consider petitioner’s 2015 motion for reduction of sentence, see
infra, we affirm the court’s dismissal of the motions for a hearing and appointment of counsel on
that ground.
       2
        Since the filing of the appeal in this case, the superintendent at Mount Olive Correctional
Complex has changed and the superintendent is now Donnie Ames. The Court has made the
necessary substitution of parties pursuant to Rule 41(c) of the West Virginia Rules of Appellate
Procedure. Additionally, effective July 1, 2018, the positions formerly designated as “wardens”
are now designated “superintendents.” See W.Va. Code § 15A-5-3.
                                                  1
         On March 31, 2006, petitioner killed Edward Ayers in the victim’s home. According to the
investigating officer’s grand jury testimony, petitioner then stole the victim’s credit card and
vehicle and went on a shopping spree. On July 26, 2006, the grand jury indicted petitioner on one
count of murder, one count of first-degree robbery, and three counts of forgery of a credit card. At
trial, petitioner testified that he went to the victim’s house to “make some money” by providing
sexual favors to the victim. An altercation eventually ensued, and petitioner hit the victim with a
claw hammer and then took the victim’s wallet, keys, and vehicle. Petitioner testified that he traded
the vehicle for crack cocaine the following morning. Petitioner admitted that he used the victim’s
credit card on two occasions when he was with an “associate.” However, petitioner testified that
his associate used the credit card on the third occasion after petitioner had given it to him while
the two were at the drive-thru at a McDonald’s. Also, the circuit court allowed petitioner to testify
that the victim had a tendency to get into altercations with other persons. Following jury
instructions and closing arguments, the jury convicted petitioner of second-degree murder, first-
degree robbery, and three counts of forgery of a credit card. At a June 1, 2007, sentencing hearing,
the circuit court rejected petitioner’s argument for concurrent sentencing and sentenced him to an
aggregate term of 33 to 150 years of incarceration. Petitioner sought review of his convictions and
sentence in this Court, which refused his appeal on March 20, 2008.

        Petitioner filed pro se his first petition for a writ of habeas corpus on October 2, 2008.
Following a February 18, 2009, evidentiary hearing, the circuit court denied habeas relief on April
17, 2009. On April 20, 2009, the circuit court appointed a new attorney to represent petitioner in
his habeas appeal. On April 28, 2009, petitioner filed a notice of appeal regarding the denial of
habeas relief. However, no appeal was filed from the circuit court’s April 17, 2009, order denying
petitioner’s first habeas petition.

        On November 17, 2009, petitioner filed pro se a second habeas petition. By order entered
on February 5, 2010, the circuit court appointed an attorney to represent petitioner. On October
22, 2010, petitioner’s habeas attorney filed an amended petition. The material submitted to the
circuit court by petitioner, pro se, and by his attorney in the second habeas proceeding raised
various constitutional claims. Some of these claims had been raised and denied in petitioner’s first
habeas case, and other claims were raised for the first time in the second proceeding. On December
12 and 14, 2012, the circuit court held an evidentiary hearing in the second habeas proceeding. In
the interest of allowing petitioner a full and thorough review, the circuit court allowed him to
present evidence on all grounds for relief asserted in his amended habeas petition, including those
that the circuit court denied in the first habeas proceeding. By order entered on January 9, 2014,
the circuit court denied petitioner’s second habeas petition. Petitioner appealed the circuit court’s
January 9, 2014, order. This Court affirmed the denial of habeas relief in Lind v. Ballard (“Lind
I”), No. 14-0116, 2015 WL 5125884, at *7 (W.Va. Aug. 31, 2015) (memorandum decision).3

       On January 29, 2016, petitioner filed pro se a third habeas petition. By order entered

       3
           We take judicial notice of the record in Lind I.


                                                    2
October 26, 2016, the circuit court denied habeas relief without a hearing or appointment of
counsel. Petitioner appealed the denial of the third habeas petition in Lind v. Ballard (“Lind II”),
No. 16-1033, 2017 WL 4570572 (W.Va. Oct. 13, 2017) (memorandum decision).4 In Lind II, this
Court found that petitioner’s second habeas proceeding constituted an omnibus proceeding where
he was afforded an opportunity to raise all available issues, explaining that, “by allowing petitioner
to re-raise [his] claims in the second habeas proceeding, the circuit court cured the failure of the
appellate attorney in the first habeas proceeding to file an appeal in that case.” Id. at *4.

         Also, in Lind II, petitioner argued that his attorney in the second proceeding failed (1) to
present the testimony of a witness who exercised his right not to incriminate himself regarding an
earlier altercation with the victim; (2) to assert that the jury was not properly instructed with regard
to the intent to steal, which is necessary to support a conviction for first-degree robbery; (3) to
argue that petitioner was denied due process of law when co-counsel was not appointed in his
criminal trial; (4) to assert that there was insufficient evidence to support the third conviction for
forgery of a credit card; (5) to call petitioner’s associate as a witness so that he could be impeached;
(6) to assert that the circuit court’s June 1, 2007, sentencing order failed to set forth sufficient
findings to support petitioner’s sentence; and (7) to argue that count two of the indictment, which
charged petitioner with first-degree robbery, was defective. Id. However, we found that “all of the
grounds petitioner alleges that his second habeas trial attorney failed to raise are without merit
and/or were encompassed within the issues fully and finally adjudicated in his appeal in Lind I.”
Id. at *6. Therefore, we affirmed the circuit court’s denial of the third habeas petition. Id. at *7.

        Following the circuit court’s October 20, 2016, order denying the third habeas petition,
petitioner filed two motions to alter or amend the judgment pursuant to Rule 59(e) of the West
Virginia Rules of Civil Procedure on December 16, 2016, and February 13, 2017. In the second
motion, petitioner stated that it may be necessary for the circuit court “to construe this motion as
a motion for relief from judgment” under Rule 60(b). Subsequently, petitioner filed a petition for
a writ of mandamus in this Court on August 7, 2017, seeking to compel the circuit court to rule on
his motions to alter or amend the judgment as well as two motions for reduction of sentence
previously filed in the underlying criminal case. The first motion for reduction of sentence was
filed on April 25, 2008, following this Court’s refusal of his criminal appeal on March 20, 2008,
and the second motion was filed on September 29, 2015, following this Court’s affirmation of the
denial of petitioner’s second habeas petition on August 31, 2015, in Lind I.

        By order entered October 11, 2017, this Court refused petitioner’s mandamus petition as
moot given the entry of the circuit court’s September 27, 2017, order. In that order, the circuit
court denied the motions to alter or amend the judgment in petitioner’s third habeas proceeding
after construing them as Rule 60(b) motions and denied both motions for reduction of sentence in
the underlying criminal case. Petitioner now appeals the denial of his motions.
                        The circuit court properly denied petitioner’s motions
           to alter or amend the judgment after construing them as Rule 60(b) motions.


       4
           We take judicial notice of the record in Lind II.
                                                    3
        Rule 59(e) provides that a “motion to alter or amend the judgment shall be filed not later
than 10 days after entry of the judgment.” We find that neither petitioner’s December 16, 2016,
motion nor his February 13, 2017, motion was filed within ten days of the entry of the circuit
court’s October 20, 2016, order denying the third habeas petition.

         “[A] motion served more than ten days after a final judgment is a Rule 60(b) motion [for
relief from judgment].” Savage v. Booth, 196 W.Va. 65, 68 n.5, 468 S.E.2d 318, 321 n.5 (1996).
In syllabus points three and four of Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974), we
held:

        3.     An appeal of the denial of a Rule 60(b) motion brings to consideration for
        review only the order of denial itself and not the substance supporting the
        underlying judgment nor the final judgment order.

        4.      In reviewing an order denying a motion under Rule 60(b), W.Va.R.C.P., the
        function of the appellate court is limited to deciding whether the trial court abused
        its discretion in ruling that sufficient grounds for disturbing the finality of the
        judgment were not shown in a timely manner.

        Here, petitioner argues that the circuit court did not fully consider his claims that his
attorney in the second habeas proceeding failed (1) to present the testimony of a witness who
exercised his right not to incriminate himself regarding an earlier altercation with the victim; (2)
to assert that the jury was not properly instructed with regard to the intent to steal, which is
necessary to support a conviction for first-degree robbery; (3) to argue that petitioner was denied
due process of law when co-counsel was not appointed in his criminal trial; (4) to assert that there
was insufficient evidence to support the third conviction for forgery of a credit card; (5) to call
petitioner’s associate as a witness so that he could be impeached; (6) to assert that the circuit
court’s June 1, 2007, sentencing order failed to set forth sufficient findings to support petitioner’s
sentence; and (7) to argue that count two of the indictment, which charged petitioner with first-
degree robbery, was defective. Respondent counters that petitioner is attempting to reargue claims
that have already been resolved against petitioner. We agree with respondent.

        In Lind II, we affirmed the circuit court’s October 20, 2016, order denying habeas relief,
finding that “all of the grounds petitioner alleges that his second habeas trial attorney failed to raise
are without merit and/or were encompassed within the issues fully and finally adjudicated in his
appeal in Lind I.” Id. at *6.5 In Powderidge Unit Owners Ass’n v. Highland Properties, Ltd., 196
W.Va. 692, 706, 474 S.E.2d 872, 886 (1996), we found that a Rule 60(b) motion “is simply not an

        5
        We note that our memorandum decisions in Lind I and Lind II constitute final decisions
on the merits pursuant to Rule 21(a) of the West Virginia Rules of Appellate Procedure. See In Re:
T.O., 238 W.Va. 455, 464, 796 S.E.2d 564, 573 (2017) (finding that a memorandum decision is an
adjudication on the merits); State v. McKinley, 234 W.Va. 143, 151, 764 S.E.2d 303, 311 (2014)
(same).

                                                   4
opportunity to reargue facts and theories upon which a court has already ruled.” See also Syl. Pt.
2, N.C. v. W.R.C., 173 W.Va. 434, 317 S.E.2d 793 (1984) (defining an “independent action” under
Rule 60(b) as “an equitable action that does not re[-]litigate the issues of the final judgment,
order[,] or proceeding from which relief is sought and is one that is limited to special
circumstances”). Therefore, based on our review of the record, we find that the circuit court did
not abuse its discretion in denying petitioner relief pursuant to Rule 60(b).

                        The circuit court properly denied the 2008 motion
       for reduction of sentence and did not have jurisdiction to consider the 2015 motion.

         Respondent asks us to evaluate the circuit court’s jurisdiction to consider petitioner’s Rule
35(b) motions for reduction of sentence.6 In syllabus point two of State ex rel. Smith v. Sims, 239
W.Va. 764, 806 S.E.2d 420 (2017), we held that “[a] circuit court does not have jurisdiction to
rule upon the merits of a motion for reduction of a sentence under Rule 35(b) . . . when the motion
is filed outside the 120-day filing period set out under that rule.” In Barritt v. Painter, 215 W.Va.
120, 122, 595 S.E.2d 62, 64 (2004), we found that, pursuant to Rule 35(b), as amended:

        [A] motion to reduce a sentence should be made . . . within 120 days after the
        sentence is imposed or probation is revoked, or within 120 days after the entry of a
        mandate by the Supreme Court of Appeals upon affirmance of a judgment of a
        conviction or probation revocation or the entry of an order by the Supreme Court
        of Appeals dismissing or rejecting a petition for appeal of a judgment of a
        conviction or probation revocation.[7]

 (quoting State v. Thornton, 197 W.Va. 726, 728, 478 S.E.2d 576, 578 (1996)) (footnote added).

        6
        In State ex rel. Smith v. Thornsbury, 214 W.Va. 228, 233, 588 S.E.2d 217, 222 (2003), we
found that “lack of jurisdiction of the subject matter may be raised for the first time in this Court[.]”
        7
            Rule 35(b) provides, in full:

                  A motion to reduce a sentence may be made, or the court may reduce
                  a sentence without motion within 120 days after the sentence is
                  imposed or probation is revoked, or within 120 days after the entry
                  of a mandate by the supreme court of appeals upon affirmance of a
                  judgment of a conviction or probation revocation or the entry of an
                  order by the supreme court of appeals dismissing or rejecting a
                  petition for appeal of a judgment of a conviction or probation
                  revocation. The court shall determine the motion within a reasonable
                  time. Changing a sentence from a sentence of incarceration to a
                  grant of probation shall constitute a permissible reduction of
                  sentence under this subdivision.


                                                   5
         Here, we refused petitioner’s criminal appeal on March 20, 2008, and petitioner filed his
initial Rule 35(b) motion on April 25, 2008, and filed the second such motion on September 29,
2015. Therefore, based on our review of the record, we find that petitioner’s 2015 motion was filed
more than seven years following our refusal of his criminal appeal. We note petitioner’s argument
set forth in his 2015 motion that the circuit court had jurisdiction to consider the motion because
it was filed within 120 days of this Court’s August 31, 2015, affirmation in Lind I of the denial of
his second habeas petition. However, in Barritt, we found that, under the “the express and
unequivocal language of Rule 35(b),” the 120-day period for seeking a reduction of sentence is
not triggered by this Court’s resolution of a habeas appeal, rejecting that defendant’s attempt “to
parlay a denial of habeas corpus relief into entitlement to Rule 35(b) relief.” 215 W.Va. at 122,
595 S.E.2d at 64. Therefore, because petitioner filed his 2015 motion more than 120 days after our
refusal of his criminal appeal, we conclude that the circuit court lacked jurisdiction to consider that
motion.

        Nonetheless, we will consider the exhibits that petitioner attached to the 2015 motion in
reviewing the circuit court’s denial of his 2008 motion.8 Rule 35(b) requires a circuit court to rule
on a motion for reduction for sentence within “a reasonable time.” In syllabus points four and five
of State v. Head, 198 W.Va. 298, 480 S.E.2d 507(1996), we held:

       4.     When a trial court fails to act on a motion timely filed by a defendant under
       Rule 35(b) . . . by reason of an administrative error, any resultant delay cannot, as
       a matter of law, be an unreasonable delay barring Rule 35(b) relief.

       5.      When considering [Rule] 35(b) motions, circuit courts generally should
       consider only those events that occur within the 120-day filing period; however, as
       long as the circuit court does not usurp the role of the parole board, it may consider
       matters beyond the filing period when such consideration serves the ends of justice.

        We review the circuit court’s denial of petitioner’s 2008 motion under an abuse of
discretion standard. See Syl. Pt. 1, id. at 299, 480 S.E.2d at 508. In State v. King, 205 W.Va. 422,
425, 518 S.E.2d 663, 666 (1999), we found that a hearing on a Rule 35(b) motion was unnecessary
where “[t]he record establishes that the circuit court held lengthy hearings when the appellant pled
guilty and when he was sentenced.” See Head, 198 W.Va. at 306, 480 S.E.2d at 515 (Cleckley, J.,
concurring) (“A Rule 35(b) hearing is not, nor was it ever intended to be, a sentencing hearing.”).
Here, petitioner was found guilty following a jury trial, at which the circuit court also heard the
evidence, and was sentenced at a June 1, 2007 hearing. At the sentencing hearing, petitioner
requested that a public intoxication charge be removed from his presentence investigation report.
The circuit court granted the request, finding that it was also “the probation department’s position
that that entry belonged to another individual.” Petitioner’s trial attorney argued for concurrent
sentencing and petitioner gave a brief statement that he was “a really lost person” at the time of

       8
         The exhibits include certificates of completion and certificates of attendance for various
classes that petitioner has taken while incarcerated.
                                                  6
the victim’s murder and that he was “sorry.” The circuit court rejected the request for concurrent
sentencing, noting that petitioner bludgeoned the victim to death and then used the victim’s credit
card “to eat, to shop for [him]self and to shop for others.” Based on our review of the sentencing
transcript, we find that the circuit court did not impose petitioner’s aggregate sentence reflexively
given that it “gave a lot of consideration to this sentence” and took into account petitioner’s
“background, [his] age, [and] the facts and circumstances surrounding this event[.]”9

        Petitioner points to his efforts at rehabilitation during incarceration. However, in State v
Redman, 213 W.Va. 175, 180-81, 578 S.E.2d 369, 374-75 (2003), we found that, while a trial court
needs to consider the issue of rehabilitation, “those decisions are not to be made in a vacuum
separate from the relevant facts that weigh on this serious issue and its attendant consequences on
the community at large.” See Head, 198 W.Va. at 305, 480 S.E.2d at 514 (Cleckley, J., concurring)
(stating that “there are many perfectly legitimate reasons for summary rejection of a Rule 35(b)
motion, despite the presentation of an otherwise persuasive or sympathetic case by a defendant”).
Therefore, based on our review of the record, we cannot say that the circuit court abused its
discretion in denying petitioner’s 2008 motion for reduction of sentence.

        For the foregoing reasons, we affirm the circuit court’s September 27, 2017, order denying
(1) petitioner’s motions to alter or amend the judgment in his third habeas corpus proceeding; and
(2) petitioner’s motions for reduction of sentence in the underlying criminal case.

                                                                                           Affirmed.


ISSUED: May 31, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




       9
           Petitioner states that he was nineteen years old at the time of his offenses.
                                                    7
