                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS

State of West Virginia,
Plaintiff Below, Respondent                                                             FILED
                                                                                      May 26, 2020
vs.) No. 19-0121 (Kanawha County 09-F-505 and 09-M-67)                              EDYTHE NASH GAISER, CLERK
                                                                                    SUPREME COURT OF APPEALS
                                                                                        OF WEST VIRGINIA
Robert Lee Lewis,
Defendant Below, Petitioner


                               MEMORANDUM DECISION
        Petitioner Robert Lee Lewis, self-represented litigant, appeals the January 14, 2019, order
of the Circuit Court of Kanawha County denying his motion for correction of an illegal sentence
made pursuant to Rule 35(a) of the West Virginia Rules of Criminal Procedure. Respondent State
of West Virginia, by counsel, Holly M. Flannigan, filed a summary response in support of the
circuit court’s order. Petitioner filed a reply.

        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 order of the circuit court is appropriate under Rule
21 of the Rules of Appellate Procedure.

        On July 31, 2009, a Kanawha County grand jury returned a six-count indictment against
petitioner, charging him with burglary by breaking and entering (Count One); burglary by entering
without breaking (Count Two); kidnapping (Count Three); second-degree sexual assault (vaginal
intercourse) (Count Four); second-degree sexual assault (oral intercourse) (Count Five); and the
willful and knowing violation of the terms of a domestic violence protective order (Count Six).
Prior to the commencement of Mr. Lewis’s trial on November 2, 2009, he pled guilty to Count
Six. Thereafter, his trial proceeded on the remaining counts and the jury found petitioner guilty
of burglary (Count Two); abduction with the intent to defile as a lesser included offense of
kidnapping (Count Three); and second-degree sexual assault (Count Four).

        After the trial, the State filed a recidivist information based upon petitioner’s prior felony
conviction, and following a recidivist trial, the circuit court imposed upon petitioner the following
terms of incarceration: one to fifteen years for burglary; three to ten years for abduction with intent
to defile; and twelve months for violating the domestic violence protective order. In addition,
based on the recidivist conviction, the circuit court enhanced petitioner’s sentence for second-
degree sexual assault by increasing the statutory ten to twenty-five-year term of incarceration to
twenty to twenty-five years of incarceration as provided for in West Virginia Code § 61-11-18(a),
the recidivist sentencing statute. The circuit court further ordered all sentences to be served

                                                  1
consecutively with the exception of the twelve-month sentence, which was ordered to run
concurrently with the other sentences.

        Petitioner did not file a direct appeal to this Court; however, in January of 2012, he filed a
petition for writ of habeas corpus and asserted ineffective assistance of counsel. The circuit court
denied the petition. However, on appeal, this Court remanded the case for a new hearing on that
issue. See State ex rel. Lewis v. Ballard, No. 12-0137, 2013 WL 1286150 (W. Va. March 29,
2013) (memorandum decision). On remand, the circuit court found that trial counsel was
ineffective for not filing a direct appeal. As a result, petitioner was resentenced and appointed
counsel for the purpose of pursuing a direct appeal.

        A direct appeal was filed, and petitioner raised the following assignments of error: (1) his
convictions for abduction with intent to defile and second-degree sexual assault violated double
jeopardy; (2) the circuit court erred in failing to instruct the jury that abduction with intent to defile
requires a sexual motivation or purpose; (3) the State’s evidence was insufficient for the jury to
find petitioner guilty of burglary because of legal impossibility; (4) there was insufficient evidence
for the jury to find him guilty of second-degree sexual assault; (5) his recidivist conviction was
invalid; and (6) the circuit court erred in selecting the conviction that carried the harshest statutory
penalty—second-degree sexual assault—for purposes of imposing the recidivist sentencing
enhancement. In State v. Lewis, 235 W. Va. 694, 776 S.E.2d 591 (2015), this Court found all of
Mr. Lewis’s issues to be without merit and affirmed his convictions and the recidivist sentence.
See 235 W. Va. at 701-09, 776 S.E.2d at 598-606.

        In May of 2016, petitioner filed a second petition for writ of habeas corpus and then filed
an amended petition in December of 2016.1 Petitioner raised the following grounds for relief: (1)
whether the jury should have been instructed regarding the lesser included offenses of second-
degree sexual assault; (2) the State’s evidence was insufficient for the jury to find him guilty of
burglary because of legal impossibility; (3) his consecutive sentences are unconstitutionally
disproportionate to his offenses given that the circuit court chose to enhance the conviction that
carried the harshest statutory penalty, second-degree sexual assault, pursuant to his recidivist
conviction; and (4) he was unconstitutionally convicted of a charge not included in the indictment
because abduction with intent to defile is not a lesser included offense of kidnapping. By order
entered November 2, 2017, the circuit court denied the second habeas petition and found that
petitioner’s grounds of relief were either previously and finally adjudicated in his direct appeal in
State v. Lewis, 235 W. Va. 694, 776 S.E.2d 591 (2015), or could have been, if raised with due
diligence; therefore, any unraised issues were waived. Once again, petitioner appealed to this
Court.
        In a signed opinion from this Court, Lewis v. Ames, __ W. Va. __, 836 S.E.2d 56 (2019),
we found “that the errors raised in this appeal were either not raised below and therefore waived,
or were previously and finally adjudicated on the merits and not clearly wrong. See W. Va. Code
§ 53-4A-1 (1967).” __ W. Va. at __, 836 S.E.2d at 60.


        1
          After filing his direct appeal with this Court, petitioner also filed a petition for a writ of
habeas corpus in the United States District Court for the Southern District of West Virginia. The
District Court dismissed the petition because he failed to exhaust his state remedies. See Lewis v.
Ballard, Civil Action No. 2:16-CV-03194, 2017 WL 927231 (S.D.W. Va. March 8, 2017).
                                                    2
        Meanwhile, during the pendency of petitioner’s appeal of his second habeas petition,
petitioner filed a Rule 35(a) motion to correct an illegal sentence. In the motion, he alleged that
his sentence for burglary was illegal because the jury instruction failed to include the words “in
the nighttime.” Notably, he did not challenge his other sentences. In January of 2019, the circuit
court denied his motion—primarily based on res judicata. Petitioner now appeals the circuit
court’s January 14, 2019, order denying his Rule 35(a) motion.

        In Syllabus Point 1 of State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996), we set forth
the pertinent 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.

         On appeal, petitioner asserts six assignments of error: (1) his sentence was violative of
Article III, §5 of the West Virginia Constitution; (2) he was denied a sentence proportionate to
the offense; (3) sentence imposed for violation of West Virginia Code § 61-3-11 was illegal
because of co-equal possessory interest in property; (4) sentence imposed for violation of West
Virginia Code § 61-3-11 was illegal because Petitioner was not indicted for abduction; (5) sentence
imposed for violation of West Virginia Code § 61-2-14(a) violative of the U.S. Constitution, the
5th, 6th, and 14th Amendments, and Sections 4, 10, and 14 of Article III of the West Virginia
Constitution; and (6) ineffective assistance of counsel.

        Based on our review of the record, we find that petitioner raises substantially the same
arguments as those rejected by this Court in petitioner’s direct appeal, State v. Lewis, 235 W. Va.
694, 776 S.E.2d 591 (2015), and in the appeal of his second habeas proceeding, Lewis v. Ames, __
W. Va. __, 836 S.E.2d 56 (2019). In denying petitioner’s motion to correct an illegal sentence,
the circuit court found that

               [p]etitioner appealed his underlying conviction to the Supreme
               Court of Appeals of West Virginia in case no. 14-0339 wherein the
               same arguments were made as in the above motion. The Supreme
               Court of Appeals of West Virginia affirmed the circuit court’s
               criminal conviction in an opinion submitted April 8, 2015.
               Therefore, the [p]etitioner’s claims are res judicata, as they have
               been previously and finally adjudicated on the merits.

       We agree with the circuit court. In Syllabus Point 2 of Losh v. McKenzie, 166 W. Va. 762,
277 S.E.2d 606 (1981), we held, as follows:



                                                 3
                         A judgment denying relief in post-conviction habeas corpus
                is res judicata on questions of fact or law which have been fully and
                finally litigated and decided, and as to issues which with reasonable
                diligence should have been known but were not raised, and this
                occurs where there has been an omnibus habeas corpus hearing at
                which the applicant for habeas corpus was represented by counsel
                or appeared pro se having knowingly and intelligently waived his
                right to counsel.

(Emphasis added). Here, all six of the alleged errors brought by petitioner have been raised in his
previous appeals and have been fully and finally litigated. Accordingly, because petitioner has
raised, or could have raised these issues in earlier appeals, he is barred from attempting to re-
litigate them here. See, e.g., State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). Thus, the
circuit court did not abuse its discretion in denying petitioner’s Rule 35(a) motion to correct illegal
sentence as it was beyond the scope of the Rule under which it was filed.

        Assuming arguendo that petitioner’s arguments were not barred by res judicata, we find
that the arguments would still be inappropriate for appeal. “Rule 35 contemplates correction or
reduction of a criminal sentence rather than a challenge to the underlying conviction.” Layne v.
Siefert, No. 101278, 2012 WL 2874240, at *1 (W. Va. Jan. 13, 2012) (memorandum decision).
Here, petitioner attempts to challenge the evidentiary basis of his conviction rather than challenge
his sentence. In his Rule 35(a) motion to correct illegal sentence, petitioner alleges that his
sentence for burglary was illegal because the jury instruction failed to include the words “in the
nighttime.” Now, on appeal, petitioner alleges six assignments of error that were not presented in
his Rule 35(a) motion, and which do not address how the circuit court allegedly erred in denying
said motion. Furthermore, the circuit court did not address these issues in its final order.

         It is this Court’s general rule that nonjurisdictional questions not raised at the circuit court
level, but raised for the first time on appeal, will not be considered. See Syl. Pt. 1, State v. Berry,
227 W. Va. 221, 707 S.E.2d 831 (2011) (“Errors assigned for the first time on appeal will not be
regarded in any matter of which the trial court had jurisdiction or which might have been remedied
in the trial court had objection been raised there.”); Watts v. Ballard, 238 W. Va. 730, 735 n.7, 798
S.E.2d 856, 861 n.7 (2017) (“‘This Court will not pass on a nonjurisdictional question which has
not been decided by the trial court in the first instance.’ Syl. Pt. 2, Sands v. Security Trust Co.,
143 W. Va. 522, 102 S.E.2d 733 (1958).”). Because petitioner’s errors were not raised before the
circuit court in his original Rule 35(a) motion, and do not address any errors by the circuit court’s
decision, they will not be addressed by this Court.

        For the foregoing reasons, we affirm the circuit court’s January 14, 2019, order denying
petitioner’s Rule 35(a) motion for correction of illegal sentence.

                                                                                              Affirmed.




                                                   4
ISSUED: May 26, 2020

CONCURRED IN BY:

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

NOT PARTICIPATING:

Justice Margaret L. Workman




                              5
