                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS



State of West Virginia,                                                                 FILED
Plaintiff Below, Respondent                                                             May 24, 2013
                                                                                   RORY L. PERRY II, CLERK
                                                                                 SUPREME COURT OF APPEALS
vs) No. 12-0454 (Monongalia County 05-F-69)                                          OF WEST VIRGINIA


James L. Brooks III,
Defendant Below, Petitioner

                                 MEMORANDUM DECISION

        Petitioner’s pro se appeal arises from the Circuit Court of Monongalia County, wherein
the circuit court denied petitioner’s motion for reconsideration of sentence by order entered on
March 15, 2012. The State, by counsel Marland L. Turner, has filed its response and a
supplemental appendix.

       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.

        In May of 2005, a Monongalia County Grand Jury returned a four count indictment
against petitioner charging him with one count of first degree robbery, one count of conspiracy to
commit robbery, one count of malicious assault, and one count of conspiracy to commit malicious
assault. Following a jury trial, petitioner was convicted of all counts and was sentenced as
follows: a term of incarceration of two to ten years for malicious assault and a concurrent term of
incarceration of one to five years for conspiracy to commit malicious assault; and a term of
incarceration of forty-five years for first degree robbery and a concurrent term of one to five years
for conspiracy to commit first degree robbery, said sentences to be served consecutively to the
malicious assault sentences. After filing two prior unsuccessful motions for reconsideration of
sentence, petitioner filed a third motion in 2012 which petitioner refers to as “Consolidated
Motions to Correct Sentence and Motion for Reconsideration.” On March 15, 2012, the circuit
court denied the motion because it found the same untimely under Rule 35(b) of the West
Virginia Rules of Criminal Procedure.

        On appeal, petitioner alleges that the circuit court erred in dismissing his motion as
untimely because it was actually a consolidated motion for correction of sentence and
reconsideration of sentence, and was filed, in part, pursuant to Rule 35(a). According to
petitioner, his incarceration for two convictions of conspiracy arising out of a single act
constitutes an illegal sentence because his protection against double jeopardy has been violated.

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Petitioner also alleges that his motion to reconsider his sentence in light of his co-defendant’s
more lenient sentence under Rule 35(b) be considered as timely. According to petitioner, Article
III, Section 5 of the West Virginia Constitution prohibits disparate treatment between co­
defendants and sentences disproportionate to the gravity and circumstances of the defendant’s
actual participation in the crime.

        “‘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, in part, State v.
Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).” Syl. Pt. 1, State v. McClain, 211 W.Va. 61, 561
S.E.2d 783 (2002).

        To begin, the Court finds that it was error to deny the portion of petitioner’s motion
seeking correction of an illegal sentence as untimely because Rule 35(a) of the West Virginia
Rules of Criminal Procedure states that an illegal sentence may be corrected “at any time . . . .”
However, despite this error, the Court finds that petitioner is entitled to no relief in regard to his
allegation that his sentence is illegal because he was convicted of two counts of conspiracy arising
from a single criminal act. Petitioner was convicted of both conspiracy to commit robbery and
conspiracy to commit malicious assault, two separate crimes which, by definition, could not have
arisen out of the same act. We have previously held that “[i]n order for the State to prove a
conspiracy under W.Va.Code, 61-10-31(1), it must show that the defendant agreed with others to
commit an offense against the State and that some overt act was taken by a member of the
conspiracy to effect the object of that conspiracy.” Syl. Pt. 4, State v. Less, 170 W.Va. 259, 294
S.E.2d 62 (1981). Based upon this holding, it is clear that petitioner’s convictions for the two
counts of conspiracy arose out of two different acts; namely, agreeing to commit malicious assault
and agreeing to commit first degree robbery. For these reasons, petitioner’s sentence is legal and
he is entitled to no relief under Rule 35(a).

        As to petitioner’s remaining argument that the circuit court should have analyzed his
sentence in comparison to that of his co-defendant, the Court finds no error in the circuit court
denying the motion as untimely. Rule 35(b) of the West Virginia Rules of Criminal Procedure
clearly states that a motion for reduction of sentence must be made within 120 days after sentence
is imposed. It is undisputed that petitioner failed to meet this deadline, and the circuit court was
correct to deny the motion as untimely, to the extent petitioner sought a reduction of sentence.

       For the foregoing reasons, the circuit court’s sentencing order is hereby affirmed.


                                                                                           Affirmed.




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ISSUED: May 24, 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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