                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                         FILED
                                                                                   June 28, 2013
vs) No. 11-1387 (Greenbrier County 10-F-17)                                   RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA
Christopher Shane Colin,
Defendant Below, Petitioner

                                 MEMORANDUM DECISION

       Petitioner Christopher Shane Colin’s appeal, filed by counsel Robert L. Dunlap II, arises
from the Circuit Court of Greenbrier County, wherein petitioner’s motion for reduction of
sentence was denied by order entered on March 20, 2012. This order followed petitioner’s
conviction, by jury, of malicious wounding. The State, by counsel Scott E. Johnson, filed a
response in support of the circuit court’s decision.

       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.

        Following a jury trial in January of 2011, petitioner was convicted on one count of
malicious wounding and acquitted of one count of robbery. Shortly thereafter, the State filed a
recidivist information against petitioner, alleging that petitioner had prior felony convictions for
wanton endangerment, delivery of a controlled substance, and possessing a firearm as a felon. A
separate jury convicted petitioner as a recidivist offender. At sentencing, the circuit court ordered
petitioner to serve life in prison, with the possibility of parole. Petitioner subsequently filed a
motion to reduce this sentence, which the circuit court denied. Petitioner’s appeal followed.

        Petitioner raises six assignments of error. In petitioner’s first and third assignments of
error, he argues that he received ineffective assistance of trial counsel. Petitioner asserts a
number of circumstances in which he alleges his trial counsel was deficient, including the
assertion that his trial counsel failed to adequately question some of the jurors who remained on
the jury panel. The State responds that arguments concerning ineffective assistance of trial
counsel are generally inappropriate on direct appeal. We agree and, therefore, decline to address
petitioner’s arguments concerning ineffective assistance of counsel. We reiterate the explanation
provided in State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995): “[W]e intelligently cannot
determine the merits of this ineffective assistance claim without an adequate record giving trial
counsel the courtesy of being able to explain his trial actions.” Id. at 17, 459 S.E.2d at 128. Our
decision to decline review of this argument does not foreclose petitioner from developing this
issue through a petition for post-conviction habeas corpus relief.


                                                 1
        Second, petitioner argues that the circuit court erred by adjudicating his trial in a rushed
manner. Petitioner asserts that the circuit court judge made remarks that created a “climate of
constant rush” during trial. Petitioner argues, for example, that it was improper for the circuit
court to state, “[I]t’s my hope that we won’t get any weather until later today when perhaps we
can get this trial finished today.” Our review of petitioner’s citations to the trial transcript
indicates that petitioner’s trial counsel made no objections during any of these instances, nor did
he raise any issue with these remarks to the circuit court’s attention. We have held that trial
courts have the inherent authority to manage judicial proceedings. See Syl. Pt. 2, B.F. Specialty
Co. v. Charles M. Sledd Co., 197 W.Va. 463, 475 S.E.2d 555 (1996). Upon our review of the
record, petitioner’s assertion fails under plain error analysis. We find no prejudice against
petitioner through the circuit court’s remarks or in its management of the trial.

        Petitioner also asserts that the circuit court’s eagerness to finish the trial was illustrated
by it prohibiting petitioner to present a motion for acquittal after the State rested its case.
Petitioner’s trial counsel asked the circuit court, “Would the court like to entertain the traditional
motions at this point?” The circuit court responded that it would “reserve that at the appropriate
time,” and directed petitioner to call his first witness. We find that any error here was harmless.
See Syl. Pt. 5, State v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975). Upon our review, we find
that the State’s evidence was sufficient for the circuit court to move forward with the trial
pursuant to Rule 29(a) of the West Virginia Rules of Criminal Procedure.

        Petitioner’s fourth and fifth arguments concern the jury verdict against him. Petitioner
argues that the jury conviction was inconsistent with the evidence presented at trial. He primarily
argues that inconsistencies among the witnesses’ testimonies do not support his conviction.
Under these circumstances, we bear in mind the following: “It is the peculiar and exclusive
province of the jury to weigh the evidence and to resolve questions of fact when the testimony is
conflicting.” Syl. Pt. 3, Long v. Weirton, 158 W.Va. 741, 214 S.E.2d 832 (1975). “The weight of
evidence, and credibility of witnesses are within the province of the jury, and we cannot
substitute our judgment for theirs on matters of fact.” State v. Summerville, 112 W.Va. 398, 400,
164 S.E. 508, 509 (1932). With regard to our review of evidence, we have held as follows:

       A criminal defendant challenging the sufficiency of the evidence to support a
       conviction takes on a heavy burden. An appellate court must review all the
       evidence, whether direct or circumstantial, in the light most favorable to the
       prosecution and must credit all inferences and credibility assessments that the jury
       might have drawn in favor of the prosecution. The evidence need not be
       inconsistent with every conclusion save that of guilt so long as the jury can find
       guilt beyond a reasonable doubt. Credibility determinations are for a jury and not
       an appellate court. Finally, a jury verdict should be set aside only when the record
       contains no evidence, regardless of how it is weighed, from which the jury could
       find guilt beyond a reasonable doubt.

Syl. Pt. 3, in part, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). Our review of the
trial transcript reflects that the evidence was sufficient to support petitioner’s conviction.



                                                  2
        Next, petitioner argues that the verdict was inconsistent with the jury’s explicit findings
because the jury acquitted petitioner of the robbery charge, yet found that petitioner was guilty of
malicious wounding. Petitioner cites no law in support of this argument. Upon our review of the
record, we find no reversible error. The elements of robbery and the elements of malicious
wounding are different. We have defined robbery as “(1) the unlawful taking and carrying away,
(2) of money or goods, (3) from the person of another or in his presence, (4) by force or putting
him in fear, (5) with intent to steal the money or goods.” State v. Wilkerson, 230 W.Va. 366, __,
738 S.E.2d 32, 37 (2013) (quoting Syl. Pt. 1, State v. Harless, 168 W.Va. 707, 285 S.E.2d 461
(1981)). Intent to steal is not an element of malicious wounding. See W.Va. Code § 61-2-9.
Therefore, we find this assignment of error to be without merit.

        Lastly, petitioner argues that the circuit court sentenced him to an unjust term of life in
prison, with the possibility of parole. He argues that this sentence was unjustly based on the
nature of the underlying crimes. In reviewing the denial of a motion for a reduction of sentence,
we apply the following 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.

Syl. Pt. 1, State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996). We find that the circuit court
did not abuse its discretion in sentencing petitioner to life in prison, with the possibility of parole,
following petitioner’s conviction as a recidivist offender under West Virginia Code § 61-11-18.
Pursuant to West Virginia Code § 61-11-18, a criminal defendant who has been twice convicted
of crimes punishable with sentences in the penitentiary shall be sentenced to life confinement.
Petitioner does not dispute his prior convictions and sentences that form the basis of his
recidivist offender status. The circuit court committed no error in its original sentencing and,
accordingly, did not err in denying petitioner’s motion to reduce his original sentence.

        For the foregoing reasons, we affirm.


                                                                                             Affirmed.

ISSUED: June 28, 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


                                                   3
