           IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                 September 2016 Term

                                                                   FILED

                                                               October 26, 2016

                                                                   released at 3:00 p.m.
                                     No. 15-0958                 RORY L. PERRY, II CLERK

                                                               SUPREME COURT OF APPEALS

                                                                    OF WEST VIRGINIA





                             STATE OF WEST VIRGINIA,

                              Plaintiff Below, Respondent


                                          v.


                             PATRICK SHAWN COLLINS,

                              Defendant Below, Petitioner




                    Appeal from the Circuit Court of Gilmer County

                          The Honorable Jack Alsop, Judge

                              Criminal Action No. 12-F-5


                                     AFFIRMED



                              Submitted: October 12, 2016

                                Filed: October 26, 2016


George Castelle, Esq.                                Patrick Morrisey, Esq.

Senior Counsel                                       Attorney General

Kanawha County Public                                Gordon L. Mowen, II, Esq.

       Defender Office                               Assistant Attorney General
Charleston, West Virginia                            Charleston, West Virginia
Counsel for the Petitioner                           Counsel for the Respondent.


JUSTICE WORKMAN delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT




              1.     “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).



              2.     “‘Sentences imposed by the trial court, if within statutory limits and if

not based on some [im]permissible factor, are not subject to appellate review.’ Syl. Pt. 4,

State v. Goodnight, 169 W. Va. 366, 287 S.E.2d 504 (1982).” Syl. Pt. 10, State v. Payne, 225

W. Va. 602, 694 S.E.2d 935 (2010).



              3.     “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, No. 15-0696, 2016 WL 5957386, ___ W. Va. ___, ___ S.E.2d ___ (W. Va. Oct.

11, 2016).
Workman, Justice:



               This case is before the Court upon the appeal of the September 14, 2016, order

denying the Petitioner Patrick Shawn Collins’s motion for sentence reconsideration filed

pursuant to West Virginia Rule of Criminal Procedure 35(b) (also referred to as “Rule 35(b)

or “Rule 35(b) motion”). The Petitioner argues that the circuit court abused its discretion

when it denied the Petitioner’s motion to reduce his sentence.1 Based upon our review of the

parties’ briefs and oral arguments, the appendix record, and all other matters before the

Court, we affirm the circuit court’s denial of the Petitioner’s Rule 35(b) motion.



                              I. Facts and Procedural History

               The Petitioner, who was twenty years old at the time, was initially charged with

sexual assault in the third degree2 for engaging in sexual intrusion with a girl, who was

       1
        This issue was the only issue raised in the Petitioner’s pro se petition for appeal filed
with the Court. On June 27, 2016, when the Court set the case for oral argument on the Rule
19 docket, we ordered that counsel be appointed for the Petitioner and that the parties file
“supplemental briefs.” George Castelle was appointed to represent the Petitioner and in the
supplemental brief he filed with the Court on the Petitioner’s behalf, in addition to the error
regarding the circuit court abusing its discretion, two assigned errors concerning alleged
constitutional violations were raised. For reasons set forth more fully in section III. B. of this
opinion infra, we do not address these two additional assigned errors concerning alleged
constitutional violations.
       2
        See W. Va. Code 61-8B-5 (2014) (setting forth elements of sexual assault in the third
degree as “[t]he person, being sixteen years old or more, engages in sexual intercourse or
sexual intrusion with another person who is less than sixteen years old and who is at least
                                                                             (continued...)

                                                1

fourteen years old at the time of the alleged act.3 The Petitioner pled guilty to the

misdemeanor crime of sexual abuse in third degree in violation of West Virginia Code § 61­

8B-9 (2014),4 on August 18, 2006, in the Magistrate Court of Lewis County. The Petitioner

was sentenced to the maximum statutory term of ninety days in jail, including credit for time

served. The Petitioner was also required to register as a sexual offender for life pursuant to

West Virginia Code § 15-12-4(a)(2)(E) (2014) of the West Virginia Sex Offender

Registration Act (“the Act”).5 See W. Va. Code §§ 15-12-1 to -10 (2014). The Petitioner did

not appeal his conviction or sentence imposed by the magistrate court. On October 12, 2006,



       2
        (...continued)
four years younger than the defendant and is not married to the defendant.”).
       3
        The Petitioner, in his reply brief, claims that he engaged in sexual foreplay with the
girl. The criminal complaint indicates that the Petitioner

              fondled the breasts and kissed the breasts of the victim who is
              the defendant[’s] 14 year old cousin. The defendant also
              unbuttoned the victim’s blue jeans and placed his hand down her
              pants. At this time the defendant placed one finger up to the
              first knuckle into the vaginal lips of the victim. The
              defendant[’s] finger penetrated the victim for approximately 15
              minutes. The defendant is 20 years old.
       4
        See W. Va. Code § 61-8B-9 (involving sexual contact without consent, “when such
lack of consent is due to the victim’s incapacity to consent by reason of being less than
sixteen years old.”).
       5
         West Virginia Code § 15-12-4(a)(2)(E) provides that “[a] person required to register
under the terms of this article shall continue to comply with this section, except during
ensuing periods of incarceration or confinement, until: . . . (2) For the life of that person if
that person: . . . (E) has been convicted . . . of a qualifying offense as referred to in this
article, involving a minor.”

                                               2

the Petitioner was released from jail after serving his ninety-day sentence and registered as

a sex offender.



              On September 10, 2007, the Petitioner was charged in the Circuit Court of

Lewis County with four counts of failing to provide a change in his sex offender registration

information in accordance with West Virginia Code § 15-12-86 of the Act. The charges

consisted of failing to provide changes in sex offender registry information including two

changes in cell phone numbers, a change in address, and a change in motor vehicle

registration. The Petitioner pled guilty to one felony count in the indictment on February 8,

2008, and the remaining counts were dismissed. The circuit court sentenced the Petitioner

to an indeterminate term of one to five years, then suspended the sentence and placed the

Petitioner on probation. The Petitioner did not appeal the conviction or sentence.



              Subsequently, the Petitioner again was charged in Lewis County with a second

felony for violating the Act by failing to provide a change in his information regarding the

opening of a Yahoo account. On July 30, 2008, the Petitioner entered a guilty plea to the

felony charge in the information and his previously-imposed term of probation was revoked.

The circuit court ordered the Petitioner to undergo rehabilitation at the Anthony Center. On



       6
        See W. Va. Code § 15-12-8 (providing for failure to register or provide notice of
registration changes required by the Act and setting forth penalty for violations).

                                             3

August 27, 2009, upon his return from the Anthony Center, the circuit court reinstated the

indeterminate sentence of one to five years in prison imposed for his first felony conviction

and imposed a second indeterminate sentence of one to five years in prison based upon his

second felony conviction and ordered that the sentences be served consecutively. The circuit

court then suspended the sentences and placed the Petitioner on probation for a period of five

years. The conviction and sentence were not appealed.



              The Petitioner was charged in a third felony indictment on March 6, 2012, with

three counts of failure to report a change in his information in Gilmer County. These charges

stemmed from his failure to timely report the creation of an online Facebook account, as well

as a change in his address. On June 1, 2012, the Petitioner pled guilty in the Circuit Court

of Gilmer County to one felony count and the other two counts were dismissed. By order

entered August 30, 2012, the circuit court sentenced the Petitioner to a term of not less than

ten nor more than twenty-five years of incarceration in the State Penitentiary.7 The Petitioner

neither appealed this conviction and sentence nor the revocation of his probation.




       7
        Based upon the Gilmer County conviction and sentence imposed, by order entered
on September 26, 2012, the Circuit Court of Lewis County revoked the Petitioner’s probation
on the first two felony convictions. The court imposed sentences on each conviction of one
to five years, to be served consecutively with each other but concurrent with the ten to
twenty-five year sentence imposed by the Circuit Court of Gilmer County. The Petitioner
was given credit for 405 days previously served.

                                              4

              By order entered on July 6, 2015, the Circuit Court of Gilmer County, in

response to the Petitioner’s pro se Petition for Habeas Corpus, 8 granted the Petitioner leave

to file a motion with the circuit court to reconsider the Petitioner’s previously-imposed

sentence of not less than ten nor more than twenty-five years in prison.9

       8
         The Petitioner filed his pro se habeas petition in the Circuit Court of Gilmer County
on August 5, 2014, two years after the sentence was imposed. The Petitioner argued that 1)
he did not receive notice of his statutory requirement to register as a sexual offender after his
first felony conviction; and 2) he had ineffective assistance of counsel, because his attorney
had failed to file a motion to reduce his sentence pursuant to Rule 35(b), despite the
Petitioner’s request.
       9
        Following an omnibus hearing on the habeas petition, wherein the circuit court had
appointed the Petitioner “standby counsel at petitioner’s request,” the circuit court found that
the Petitioner failed to prove his ineffective assistance of counsel claim. The circuit court,
nonetheless, determined

              that the petitioner is entitled to be heard on a motion to
              reconsider the sentence previously imposed by this Court being
              as though the Court may hear a motion to reconsider at any time.
              Therefore, the Court does hereby grant the petitioner leave
              to file a written motion with this Court requesting it
              reconsider his sentence.

        We question the propriety of the relief afforded by the circuit court in light of the
failure of the court to find any evidence to sustain the Petitioner’s ineffective assistance of
counsel claim, as well as the lack of authority to allow the Petitioner to file a motion to
reduce a sentence pursuant to Rule 35(b) outside the 120-day time limit set forth in the rule.
Rule 35(b) provides that a motion to reduce a sentence may 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
                                                                                  (continued...)

                                               5

                 On August 27, 2015, the Petitioner filed his “Motion for Reduction of Sentence

Pursuant to Rule 35(b) of the West Virginia Rules of Criminal Procedure[.]” In the motion,

the Petitioner outlined the classes and programs he completed while incarcerated; indicated

he enrolled in a facilities maintenance trade class; had a janitor job on the housing unit he

lived in; and had lost the only family support he had. The Petitioner stated in the motion that

he “realizes the severity of the crime and will do his best to comply with sex offender

registration in the future.” The relief sought by the Petitioner was “for a reduction of his

sentence to either a (10) Ten Year flat o[r] a (12) Twelve year flat.”



                 The circuit court, based upon the reasons it relied upon at the time of the



       9
           (...continued)

                  revocation.


Id.; see Barritt v. Painter, 215 W. Va. 120, 122, 595 S.E.2d 62, 64 (2004) (providing that
“[t]he explicit language of Rule 35(b) indicates that the motion must be filed within 120 days
from the time (1) the sentence is imposed or probation is revoked, (2) a mandate is entered
by the supreme court of appeals upon affirmance of a judgment of a conviction or probation
revocation, or (3) an order is entered by the supreme court of appeals dismissing or rejecting
a petition for appeal of a judgment of a conviction or probation revocation. Those three
precise instances are the only triggers specified in the rule . . . .”). The relief afforded the
Petitioner by the circuit court, therefore, was outside the 120-day time limitation set forth in
the rule.

        Based on the appendix record before the Court, however, the Respondent did not
object to the filing of the Rule 35(b) motion by the Petitioner before the circuit court and only
mentioned the untimeliness of the motion filed below in a footnote in the supplemental brief
filed in the case. Consequently, we decline to address any error regarding the late filing of
the motion.

                                                6

Petitioner’s sentencing, denied the Petitioner’s motion by order entered on September 14,

2015. This appeal followed.



                                   II. Standard of Review

              We invoke the following standard of review enunciated in syllabus point one

of State v. Head, 198 W. Va. 298, 480 S.E.2d 507 (1996), in our review of the circuit court’s

denial of the Rule 35(b) motion:

                      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.

198 W. Va. at 299, 480 S.E.2d at 508, Syl. Pt. 1. As we explained further in Head, “[a]

motion made under Rule 35 (1996) of the West Virginia Rules of Criminal Procedure is

directed to the sound discretion of the circuit court and, generally, is not reviewable absent

an abuse of discretion.” 198 W. Va. at 301, 480 S.E.2d at 510. It is with these standards in

mind that we review the issue before us.



                                      III. Discussion

                                   A. Abuse of Discretion

              The sole issue before the Court is whether the circuit court abused its discretion

                                              7

in denying the Petitioner’s motion to reduce his sentence filed pursuant to Rule 35(b) of the

West Virginia Rules of Criminal Procedure. The Petitioner argues that he was only twenty

years old when he committed the misdemeanor third degree sexual abuse, he has not

committed a sexual offense since, he has a viable plan of action if released and there is no

proof that he is a threat to commit a new sexual offense if probation is granted. Further, the

Petitioner contends that because the sentence for the “regulatory violations” of the Act is “40

to 100 times longer than the underlying violation” it is excessive “to the point of constituting

cruel and unusual punishment,” and because the circuit court “had numerous lesser options,”

it was an abuse of discretion for the circuit court to deny the Petitioner’s Rule 35(b) motion

to reduce his sentence.



              Conversely, the Respondent argues that a Rule 35(b) motion seeking a

reduction of sentence is “essentially a plea for leniency from a presumptively valid

conviction.” Head, 198 W. Va. at 306, 480 S.E.2d at 515 (Cleckley, J., concurring).

Moreover, the Respondent argues that “‘[s]entences imposed by the trial court, if within

statutory limits and if not based on some [im]permissible factor, are not subject to appellate

review.’ Syl. Pt. 4, State v. Goodnight, 169 W. Va. 366, 287 S.E.2d 504 (1982).” Syl. Pt.

10, State v. Payne, 225 W. Va. 602, 694 S.E.2d 935 (2010). Thus, the Respondent contends

that the Petitioner’s sentence for the third felony conviction was valid as it was within the

statutory limits set forth in the Act. See W. Va. Code § 15-12-8. Further, because there was


                                               8

never any argument that the lower court considered any improper or impermissible factor in

determining the Petitioner’s sentence, his claim that the circuit court abused its discretion in

denying his motion is unsupported by the facts and law. See Payne, 225 W. Va. at 605, 694

S.E.2d at 938, Syl. Pt. 10.



               We agree with the Respondent’s arguments. The sentence imposed upon the

Petitioner was within the statutory limits and the record is devoid of any evidence that the

Petitioner’s sentence was based upon any impermissible factor. See id. Essentially, the

Petitioner’s only real challenge is that the circuit court erred in refusing to afford him mercy.

As Justice Cleckley so eloquently wrote regarding this Court’s role in reviewing a Rule 35(b)

motion, absent a legal error or consideration of some impermissible factor,

               [c]ircuit court judges have a right to believe that so long as they
               have not violated a law or acted in a nefariously discriminatory
               way in imposing sentences, this Court will not sift through the
               nooks and crannies of their decisions determined on finding that
               which is not there. In being true to the judicial limitations of our
               constitutional role, we must let “[t]he matter of commutation or
               melioration . . . be addressed to the chief executive,” Colvin v.
               Commonwealth, 247 Ky. 480, 57 S.W.2d 487, 489 (1933), and
               allow “[t]he length of the prison sentence [to] rest[ ] in the
               sound discretion of the trial court unless partiality, prejudice,
               oppression, or corrupt motive is shown.” State v. Johnson, 159
               S.C. 165, 156 S.E. 353, 354 (1930).

Head, 198 W. Va. at 306, 480 S.E.2d at 515 (Cleckley, J., concurring). Accordingly, we

find the circuit court did not abuse its discretion in failing to reduce the Petitioner’s sentence.



                                                9

                                 B. Constitutional Grounds

                The Petitioner raised two additional assignment of errors, wherein the

Petitioner, for the first time on appeal, asserted that the not less than ten nor more than

twenty-five year sentence he receive for violating the requirements of the Act is

unconstitutionally disproportionate as applied to him and that his sentence violates the Eighth

Amendment prohibition against cruel and unusual punishment set forth in the United States

Constitution and article III, section 5 of the West Virginia Constitution. The Petitioner

additionally assigned as error for the first time on appeal that the requirement of lifetime

registration violates the Eighth Amendment prohibition of cruel and unusual punishment as

set forth in the United States Constitution and article III, section 5 of the West Virginia

Constitution.



                The Petitioner conceded in oral argument before this Court that these two

additional assignment of errors fall within the purview of this Court’s recent decision in State

v. Marcum, No. 15-0696, 2016 WL 5957386, ___ W. Va. ___, ___ S.E.2d ___ (W. Va. Oct.


11, 2016). In Marcum, the Court held in syllabus point two 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.” 2016 WL 5957386 at *1. As the Court stated in reaching this holding:


                [I]t is abundantly clear that Rule 35(b) cannot be used as a

                vehicle to challenge a conviction or the validity of the sentence


                                               10

              imposed by the circuit court, whether raised in the Rule 35(b)
              motion or in the appeal of the denial of the Rule 35(b) motion.
              In other words, 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. See Syl. Pt. 2, State ex rel. Davis v. Boles, 151 W. Va.
              221, 151 S.E.2d 110 (1966) (“An appellate court is without
              jurisdiction to entertain an appeal after the statutory appeal
              period has expired.”).

Marcum, 2016 WL 5957386 at *4 (footnotes omitted).



              Consequently, the Petitioner’s two additional assignments of error concerning

alleged constitutional error are not properly before us. Applying the law enunciated by the

Court in Marcum to the instant case, the Petitioner did not and could not have raised these

arguments in the Rule 35(b) motion filed with the circuit court.



              Even though we are precluded from addressing the Petitioner’s constitutional

claims in the context of a denial of a Rule 35(b) motion, we are mindful that this Court has

not yet addressed certain constitutional challenges to the Act including whether a sentence

imposed upon a particular defendant for failing to comply with the registration requirements

set forth in the Act can result in a disproportionate sentence and, therefore, constitute a

violation of the Eighth Amendment prohibition against cruel and unusual punishment. See




                                            11

U.S. Const. amend. VIII; W. Va. Const. art. III, § 5.10 But see Syl. Pts. 5 and 6, Haislop v.

Edgell, 215 W. Va. 88, 593 S.E.2d 839 (2003) (determining that public dissemination of

certain information about life registration for certain sexual offenders under the Sex Offender

Registration Act did not violate the ex post facto clause of West Virginia Constitution or

procedural due process protections afforded by West Virginia Constitution); Syl. Pt. 5,

Hensler v. Cross, 210 W. Va. 530, 558 S.E.2d 330 (2001) (holding that “[t]he Sex Offender

Registration Act, W. Va. Code §§ 15-12-1 to 10, is a regulatory statute which does not

violate the prohibition against ex post facto laws.”); In re Jimmy M.W., No. 13-0762, 2014

WL 2404298 (W. Va. May 30, 2014) (memorandum decision) (finding that defendant failed

to raise substantive due process argument and failed to prove that his equal protection rights

were violated by Act); State v. Nolte, No. 13-0774, 2014 WL 2404323 (W. Va. May 30,

2014) (determining that West Virginia Code § 15–12–2(d)(8) is not unconstitutionally

vague). These types of constitutional challenges, however, must be made by a defendant at

the time the sentence is imposed in order to allow the circuit court to develop a full record

and rule on the issues before appellate review can occur pursuant to a direct appeal of the


       10
         Cf Syl. Pt. 6, State v. James, 227 W. Va. 407, 710 S.E.2d 98 (2011) (holding
extended supervision statute set forth in “West Virginia Code § 62-12-26 (2009) is not
facially unconstitutional on cruel and unusual punishment grounds in contravention of the
Eighth Amendment to the United States Constitution or Article III, § 5 of the West Virginia
Constitution.”); State v. Hargas, 232 W. Va. 735, 743-45, 753 S.E.2d 893, 901-03 (2013)
(determining in the context of extended supervision statute, West Virginia Code § 62-12-26,
that post-revocation sanctions imposed upon defendants by circuit court in two separate
cases, which included additional periods of incarceration, were not constitutionally
disproportionate to sentences imposed in underlying convictions).

                                              12

conviction and/or sentence.



                                    IV. Conclusion

             Based upon the foregoing opinion, the decision of the circuit court is hereby

affirmed.

                                                                               Affirmed.




                                           13

