                            STATE OF WEST VIRGINIA 

                          SUPREME COURT OF APPEALS


State of West Virginia,                                                             FILED
Plaintiff Below, Respondent                                                       April 9, 2018
                                                                                EDYTHE NASH GAISER, CLERK
vs.) No. 17-0301 (Jackson County 16-F-6)                                        SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA 

Michelle Eads, 

Defendant Below, Petitioner 



                              MEMORANDUM DECISION
        Petitioner Michelle Eads, by counsel Kevin B. Postalwait, appeals the Circuit Court of
Jackson County’s February 27, 2017, order denying her Rule 35(b) motion for reduction of
sentence. The State, by counsel Shannon Frederick Kiser, filed a response. On appeal, petitioner
argues that the circuit court abused its discretion in denying her Rule 35(b) motion 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, this 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.

        On February 23, 2016, petitioner was indicted for one count of daytime burglary, one
count of grand larceny, and one count of conspiracy. Petitioner entered into a plea agreement
with the State whereby she agreed to plead guilty to one count of conspiracy and testify against a
co-defendant in exchange for the dismissal of the remaining counts. Following the entry of her
guilty plea, petitioner underwent a presentence diagnostic evaluation which indicated that she
had a high risk level of recidivism.

        On November 10, 2016, petitioner was sentenced to one to five years of incarceration,
with credit for twenty-two days for time served. The circuit court further ordered petitioner to
pay restitution to the victims, joint and several with her co-defendant, in the amount of
$2,200.00. Thereafter, she filed a “Motion for Reconsideration” pursuant to Rule 35(b) of the
West Virginia Rules of Criminal Procedure. Petitioner urged the circuit court to impose the
alternative sentence of home incarceration recommended by the State. Petitioner informed the
circuit court that she recently spent her first Thanksgiving and Christmas holidays away from her
children, which had a “huge impact” on her, and that she did not want to miss those family
moments in the future. Ultimately, without holding a hearing, the circuit court denied petitioner’s
motion on February 27, 2017, after consideration of petitioner’s motion, the record, the


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presentence diagnostic evaluation, and the statements of counsel. It is from this order that
petitioner appeals.

       On appeal, petitioner argues that the circuit court abused its discretion in denying her
Rule 35(b) motion without holding a hearing.1 Petitioner argues that at the time the circuit court
denied her motion for reconsideration, she had been incarcerated for four months, which she
contends established a change in circumstances sufficient to warrant a hearing upon the motion.

      We have previously established the following standard of review regarding orders that
deny Rule 35 motions:

                “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).

Marcum, 238 W.Va. at 27, 792 S.E.2d at 38, Syl. Pt. 1.

       While petitioner argues that the circuit court abused its discretion by denying her Rule
35(b) motion without first holding a hearing, she cites to no authority supporting her argument.
We note “skeletal arguments” that are nothing more than assertions do not preserve claims. State
v. Myers, 229 W.Va. 238, 246, 728 S.E.2d 122, 130 (2012). Indeed,

       [a]n appellant must carry the burden of showing error in the judgment of which he
       complains. This Court will not reverse the judgment of a trial court unless error
       affirmatively appears from the record. Error will not be presumed, all
       presumptions being in favor of the correctness of the judgment.

Id. at 241, 728 S.E.2d at 125, Syl. Pt. 4, in part (internal quotations and citations omitted). In her
brief on appeal, petitioner simply asserts that the circuit court erred in denying her Rule 35(b)

                                                                   
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         Petitioner also argues that the sentence imposed is disproportionate given the nature of
the offense, the legislative purpose behind the punishment, and comparisons of imposed
sentences for similar offenses. Petitioner’s arguments concerning the proportionality of her
sentence are outside the scope of appeal of a ruling on a Rule 35(b) motion. In State v. Marcum,
238 W.Va. 26, 792 S.E.2d 37 (2016), we held that “Rule 35(b) is not a mechanism by which
defendants may challenge their convictions and/or the validity of their sentencing.” 238 W.Va. at
27, 792 S.E.2d at 38, Syl. Pt. 2, in part. Rule 35(b) may not be used to challenge the validity of a
sentence, “whether raised in the Rule 35(b) motion or in the appeal of the denial of the Rule
35(b) motion.” 238 W.Va. at 31, 792 S.E.2d at 42. Instead, “challenges to convictions or the
validity of sentences should be made through a timely, direct criminal appeal before this Court
will have jurisdiction to consider the matter.” Id. Because petitioner’s argument challenging her
sentence exceeds the scope of a Rule 35(b) motion, it is not properly before the Court.
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motion without first holding a hearing when she had continuously served her sentence for four
months, demonstrating a change in circumstances sufficient to warrant a hearing. Given that
petitioner cites to no law regarding her alleged error and that the circuit court set forth the
reasons for its denial, we will not presume error and find that the circuit court did not abuse its
discretion in denying petitioner’s motion.

        For the foregoing reasons, the circuit court’s February 27, 2017, order denying
petitioner’s Rule 35(b) motion is hereby affirmed.


                                                                                        Affirmed.

ISSUED: April 9, 2018

CONCURRED IN BY:

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




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