                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS

State of West Virginia,

Plaintiff Below, Respondent                                                          FILED

                                                                                     April 12, 2013
                                                                                RORY L. PERRY II, CLERK
vs) No. 11-1619 (Nicholas County 09-F-83)                                     SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA

Etta Marie Webster,
Defendant Below, Petitioner

                               MEMORANDUM DECISION
        Petitioner Etta Marie Webster, by counsel Samuel R. White, appeals the Circuit Court of
Nicholas County’s “Order Denying Motion For Correction of Sentence” entered on October 25,
2011. Petitioner pled guilty to one count of delivering a Schedule II controlled narcotic substance
within one thousand feet of a school and was sentenced to not less than one nor more than fifteen
years in prison with parole eligibility after three years. The State, by counsel Laura Young, filed
a summary response.

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

        There are four criminal penalty statutes at issue in this appeal. The first two statutes relate
to the penalties for delivering a Schedule II controlled narcotic substance within a thousand feet
of a school. West Virginia Code § 60A-4-401(a)(i) provides that, upon conviction of that crime,
a defendant may be imprisoned for not less than one nor more than fifteen years. West Virginia
Code § 60A-4-406(a)(2) provides for parole eligibility after three years. The second two statutes
relate to the penalties for delivering a Schedule II controlled non-narcotic substance within a
thousand feet of a school: West Virginia Code § 60A-4-401(a)(ii) provides that, upon conviction,
a defendant may be imprisoned for not less than one nor more than five years. West Virginia
Code § 60A-4-406(b)(2) provides for parole eligibility after two years.

        On April 1, 2009, four criminal complaints were filed against petitioner alleging that in
April of 2008 she had delivered a Schedule II controlled narcotic substance, Oxycodone, to a
confidential informant within a thousand feet of a school. Each complaint referenced West
Virginia Code § 60A-4-401, without noting a subsection, and incorrectly referenced West
Virginia Code § 60A-4-406(b)(2)(which is the penalty statute for the delivery of a Schedule II
controlled non-narcotic substance). Petitioner’s criminal complaints should have referenced West
Virginia Code § 60A-4-401(a)(i) and § 60A-4-406(a)(2), which, as noted above, are the penalty
statutes for the delivery of a Schedule II controlled narcotic substance such as Oxycodone.


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        Petitioner’s “Initial Appearance: Rights Statements” correctly stated the penalty for each
count of delivering a narcotic within 1000 feet of a school as “1 to 15 years and/or fine up to
$25,000 per count.” However, the “Initial Appearance: Rights Statements” incorrectly stated that
the “[d]efendant is ineligible for parole for a period of 2 years.”

        On September 30, 2009, petitioner was charged by an Information with one count of
delivering a Schedule II controlled narcotic substance within one thousand feet of a school.
Petitioner pled guilty to the charge that day. The Information incorrectly cited to West Virginia
Code § 60A-4-406(b)(2). However, during petitioner’s plea hearing, petitioner stipulated to
knowing that she could be sentenced to one to fifteen years in prison with parole eligibility after
three years.

        The State prepared a plea order that referenced the incorrect statutes, but correctly stated
that petitioner was subject to a period of incarceration of not less than one nor more than fifteen
years in prison with parole eligibility after three years.

        Petitioner’s initial sentencing order, entered November 30, 2009, sentenced petitioner to
not less than one nor more than fifteen years in prison. No reference was made to petitioner’s
parole eligibility and no specific section of the West Virginia Code was referenced. Thereafter,
on August 27, 2010, the circuit court entered an amended plea order that again sentenced
petitioner to not less than one nor more than fifteen years in prison, but added that petitioner
would not be eligible for parole for three years. The amended plea order also correctly stated that
petitioner had been sentenced pursuant to West Virginia Code § 60A-4-401(a)(i) and § 60A-4­
406(a)(2).

        On May 9, 2011, petitioner filed a “Motion for Correction of Sentence” pursuant to Rule
35(a) of the Rules of Criminal Procedure. Petitioner argued that she had pled guilty to violating
the statutes relating to the delivery of non-narcotics, West Virginia Code § 60A-4-401(a)(ii) and
§ 60A-4-406(b)(2), and therefore, the sentence imposed by the circuit court pursuant to statutes
relating to the delivery of narcotics, West Virginia Code § 60A-4-401(a)(i) and § 60A-4­
406(a)(2), was illegally excessive. The circuit court heard oral arguments on petitioner’s motion
and on October 25, 2011, entered its “Order Denying Motion For Correction of Sentence.”

        On appeal, petitioner first argues that the circuit court erred in denying her motion for a
sentence correction because the maximum sentence the circuit court could impose was not less
than one nor more than five years in prison with parole eligibility after two years pursuant to
West Virginia Code § 60A-4-401(a)(ii) and § 60A-4-406(b)(2) given that those were the statutes
cited in petitioner’s criminal complaints, “Initial Appearance: Rights Statements,” Information,
and plea agreement. Petitioner claims that her sentence of one to fifteen years in prison with
parole eligibility in three years is an illegal sentence because it is greater than allowed by West
Virginia Code § 60A-4-401(a)(ii) and § 60A-4-406(b)(2).

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

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       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.

Rule 35(a) of the West Virginia Rules of Criminal Procedure provides that: “The court may
correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner
within the time period provided herein for the reduction of sentence.”

        In the instant appeal, West Virginia Code § 60A-4-401(a)(ii) and § 60A-4-406(b)(2)
simply do not apply to petitioner’s case because petitioner pled guilty to delivering a controlled
narcotic substance. Moreover, pursuant to Rule 35(a), the circuit court corrected the earlier
clerical errors by referencing West Virginia Code § 60A-4-401(a)(i) and § 60A-4-406(a)(2) in
petitioner’s amended plea order. Therefore, we are in accord with the circuit court’s conclusions
that

       [t]he clerical errors contained in the Information and Plea Orders do not justify
       correction or modification of defendant’s sentence. The Defendant did deliver
       Oxycodone, a narcotic controlled substance, within One Thousand feet of a
       school. The penalty for [that crime] is incarceration for a period of not less than
       one nor more than fifteen years (W.Va. Code § 60A-4-401(a)(i)) with a minimum
       three years prior to being eligible for parole (W.Va. Code § 60A-4­
       406(a)(2))…The Amended Plea Order correctly states this penalty, and the
       defendant was properly sentenced on November 30, 2009.

        Petitioner next argues that the circuit court erred in determining that the erroneous West
Virginia Code citations contained throughout her court documents were merely harmless
“clerical errors.” Petitioner argues that the incorrect citations misled her to her prejudice because,
in accordance with them, she believed that she would be eligible for probation in two years, and
not in three years as ordered by the circuit court in its amended plea agreement.

         We find petitioner’s argument to be legally and factually in error. As the circuit court
noted, “[p]rior to entering her plea, [petitioner] acknowledged that she understood that [one to
fifteen years in prison with no eligibility for parole for three years] was the penalty for the felony
offense to which she pled.” Because petitioner understood the penalty for the offense to which
she pled, she was not misled to her prejudice by the clerical errors contained in her various court
documents. Therefore, the circuit court did not abuse its discretion in sentencing petitioner to one
to fifteen years in prison with parole eligibility after three years.

       For the foregoing reasons, we affirm.


                                                                                           Affirmed.




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ISSUED: April 12, 2013

CONCURRED IN BY:

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




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