                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS


State of West Virginia,
                                                                                   FILED
Plaintiff Below, Respondent
                                                                                 April 6, 2020
                                                                              EDYTHE NASH GAISER, CLERK
vs.) No. 18-1131 (Monongalia County 17-F-330)                                 SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA

Daren B.,
Defendant Below, Petitioner



                               MEMORANDUM DECISION


         Petitioner Daren B., by counsel Kristen D. Antolini, appeals the Circuit Court of
Monongalia County’s November 21, 2018, order denying his motion for a reduction of his
sentence under Rule 35(b) of the West Virginia Rules of Criminal Procedure. 1 The State of West
Virginia, by counsel Holly M. Flanigan, filed a response. Petitioner filed a reply. On appeal,
petitioner, who was convicted of third-degree sexual assault, argues that the circuit court abused
its discretion in denying his request for contact with his victim.

       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 November of 2017, the State filed a criminal information against petitioner charging
him with one count of third-degree sexual assault and one count of distribution and exhibiting of
material depicting minors engaged in sexually explicit conduct. That same month, the circuit court
held a plea hearing wherein petitioner pled guilty to both charges, and the State agreed to make no
recommendation as to sentencing. During that hearing, petitioner moved the circuit court to modify
a condition of his pre-trial bond that prohibited him from contacting the victim of his third-degree
sexual assault conviction, hereafter referred to as O.B. After hearing from O.B., who was present

       1
         Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W.
Va. 641, 398 S.E.2d 123 (1990).
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in the courtroom during the plea hearing, the circuit court granted the motion and lifted the no
contact order.

        The circuit court held a sentencing hearing in April of 2018. Petitioner moved for
alternative sentencing and provided witness testimony in support, including testimony from O.B.
The State presented a presentence investigation report to the court, and two other victims gave
impact statements. After imposing a sentence at the sentencing hearing, the court ordered that
petitioner have no contact with any of the victims of his crimes, including O.B. Finally, the circuit
court imposed twenty-five years of extended supervision, pursuant to West Virginia Code § 62-
12-26. The circuit court’s sentencing order was entered April 5, 2018. Petitioner did not appeal
this order.

        In August of 2018, petitioner filed a motion for a reduction of his sentence pursuant to Rule
35(b) of the West Virginia Rules of Criminal Procedure, and, in his motion, requested modification
of the circuit court’s order directing him to have no contact with O.B. The State filed a response,
and petitioner replied. The circuit court held a hearing on petitioner’s Rule 35(b) motion.
Ultimately, the court denied petitioner’s motion by its November 21, 2018, order. Petitioner now
appeals this order.

       This Court has established the following standard of review for a circuit court’s ruling on
Rule 35(b) 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).

      On appeal, petitioner argues that the circuit court erred in ordering that he have no contact
with O.B. Petitioner emphasizes that the circuit court permitted him to have contact with O.B.
between the plea hearing and the sentencing hearing and that no party requested that such contact
be modified thereafter.

        Clearly, petitioner’s challenge to the circuit court’s denial of his Rule 35(b) motion is
unrelated to a reduction of sentence. We have previously held that “‘Rule 35(b) of the West Virginia
Rules of Criminal Procedure only authorizes a reduction in sentence. Rule 35(b) is not a mechanism
by which defendants may challenge their convictions and/or the validity of their sentencing.’ Syl.
Pt. 2, State v. Marcum, 238 W.Va. 26, 792 S.E.2d 37 (2016).” Syl. Pt. 3, State v. Collins, 238 W.
Va. 123, 792 S.E.2d 622 (2016). As Rule 35(b) only authorizes a reduction in sentence, we find
that the circuit court did not err in denying petitioner’s motion. Rule 35(b) does not permit the
circuit court to provide any modification other than a reduction to a previously imposed sentence.
Accordingly, we find petitioner is entitled to no relief.



                                                      2
        For the foregoing reasons, the circuit court’s November 21, 2018, order denying petitioner
relief under Rule 35(b) is hereby affirmed.


                                                                                        Affirmed.

ISSUED: April 6, 2020

CONCURRED IN BY:

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




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