                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS


State of West Virginia,                                                               FILED
Plaintiff Below, Respondent                                                        June 15, 2015
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs) No. 14-1098 (Mingo County 95-F-74)                                           OF WEST VIRGINIA


William Cline,

Defendant Below, Petitioner


                                MEMORANDUM DECISION
        Petitioner William Cline, pro se, appeals the Circuit Court of Mingo County’s October
10, 2014, order denying his “motion for reconsideration of sentence” made pursuant to Rule
35(b) of the West Virginia Rules of Criminal Procedure.1 The State of West Virginia, by counsel
Derek Knopp, filed a response in support of the circuit court’s order. Petitioner filed a reply. On
appeal, petitioner argues that the circuit court erred in prohibiting him from amending his motion
for reduction of sentence and denying his motion. Petitioner also argues that his counsel was
ineffective and that he received an excessive 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, 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 October of 1995, a Mingo County Grand Jury indicted petitioner on various sexual
offenses. Following a trial in 1997, the jury convicted petitioner of four counts of second-degree
sexual assault, six counts of first-degree sexual abuse, and ten counts of sexual abuse by a parent,
guardian, or custodian. In September of 1997, the circuit court sentenced petitioner to a
cumulative term of incarceration of 61 to 175 years for his crimes.

       In April of 1998, petitioner filed a motion for reduction of sentence pursuant to Rule
35(b) of the West Virginia Rules of Criminal Procedure.2 Thereafter, petitioner filed five

       1
        While the West Virginia Rules of Criminal Procedure do not provide for a motion for
reconsideration of sentence, criminal defendants are entitled to seek a reduction of sentence
pursuant to Rule 35(b). Accordingly, we will refer to petitioner’s “motion for reconsideration of
sentence” in this memorandum decision as a motion for reduction of sentence pursuant to Rule
35(b).
       2
           This Court refused petitioner’s direct appeal by order on June 26, 1998.


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petitions for writ of habeas corpus from 2001 through 2014.3 In September of 2014, petitioner
filed a motion for leave to amend his previous Rule 35(b) motion (filed on April 6, 1998), to
include proof that he participated in rehabilitation programs since he was sentenced. By order
entered October 10, 2014, the circuit court denied petitioner’s April 6, 1998, motion because it
was untimely filed. It is from this order that petitioner appeals.

       In regard to motions made pursuant to Rule 35(b), we have previously held that

               “[i]n 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).


Syl. Pt. 1, State v. Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010). Upon our review, we find no
abuse of discretion in the circuit court’s denial of petitioner’s Rule 35(b) motion.

        On appeal, petitioner alleges four assignments of error. First, petitioner argues that the
circuit court erred in prohibiting him from amending his Rule 35(b) motion to include proof that
he participated in rehabilitative services pursuant to Rule 15 of the West Virginia Rules of Civil
Procedure and our holding in syllabus point three of Rosier v. Garron, Inc., 156 W.Va. 861, 199
S.E.2d 50 (1973).4 Petitioner’s argument ignores the fact that the West Virginia Rules of Civil
Procedure do not apply to petitioner’s criminal proceeding. Further, petitioner failed to cite to
any relevant legal authority requiring the circuit court to allow petitioner to amend his untimely
filed Rule 35(b) motion. For these reasons, we find no merit to this issue.


       3
       The Circuit Court of Mingo County denied petitioner’s fifth petition by order entered in
August of 2014.
       4
           This Court previously held that

               The purpose of the words ‘and leave (to amend) shall be freely given
       when justice so requires' in Rule 15(a) W.Va. R.Civ.P., is to secure an
       adjudication on the merits of the controversy as would be secured under identical
       factual situations in the absence of procedural impediments; therefore, motions to
       amend should always be granted under Rule 15 when: (1) the amendment permits
       the presentation of the merits of the action; (2) the adverse party is not prejudiced
       by the sudden assertion of the subject of the amendment; and (3) the adverse party
       can be given ample opportunity to meet [t]he issue.

        Syl. Pt. 3, Rosier v. Garron, Inc., 156 W.Va. 861, 199 S.E.2d 50 (1973),
overruled on other grounds by Bradshaw v. Soulsby, 210 W.Va. 682, 558 S.E.2d 681
(2001).

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        Second, while petitioner concedes that his Rule 35(b) motion was untimely filed, he
argues that he should not be punished because his counsel failed to timely file his Rule 35(b)
motion. To begin, Rule 35(b) of the West Virginia Rules of Criminal Procedure clearly states
that a motion for reduction of sentence may be made within 120 days after sentence is imposed.
It is undisputed that petitioner failed to meet this deadline. Petitioner did not file his motion until
April 6, 1998. Petitioner missed the deadline to file a motion for reduction of sentence by
approximately ninety days. Rule 35(b) further states that a motion may be made within “120
days of the entry of an order by the supreme court of appeals dismissing or rejecting a petition
for appeal of a judgment of a conviction.” This Court rejected petitioner’s appeal in June of
1998. The record is clear that petitioner did not file a subsequent Rule 35(b) motion within 120
days after this Court rejected his petition for appeal. For these reasons, the circuit court was
correct to deny petitioner’s Rule 35(b) motion following the imposition of his sentence by the
circuit court.

       Third, petitioner argues that his counsel was per se ineffective because she failed to file
his Rule 35(b) motion within the appropriate timeframe. This Court has consistently held that
claims of ineffective assistance of counsel are more appropriately raised in a petition for writ of
habeas corpus. We have also held that:
               Under the provisions of Chapter 53, Article 4A, Code of West Virginia,
       1931, as amended, commonly known as ‘Post-Conviction Habeas Corpus, ‘there
       is a rebuttable presumption that petitioner intelligently and knowingly waived any
       contention or ground in fact or law relied on in support of his petition for habeas
       corpus which he could have advanced on direct appeal but which he failed to so
       advance.
Syl. Pt. 1, Ford v. Coiner, 156 W.Va. 362, 196 S.E.2d 91 (1972). Here, petitioner filed five
separate petitions for writ of habeas corpus beginning in 2001 and through 2014 in which he
should have raised his claim for ineffective counsel. With regard to subsequent petitions for writs
of habeas corpus, we have held that “[a] prior omnibus habeas corpus hearing is res judicata as
to all matters raised and as to all matters known or which with reasonable diligence could have
been known[.]” Syl. Pt. 4, in part, Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981).
This Court has also held that “[i]n a habeas corpus proceeding under Chapter 53, Article 4A,
Code of West Virginia, 1931, as amended, the burden of proof rests on petitioner to rebut the
presumption that he intelligently and knowingly waived any contention or ground for relief
which theretofore he could have advanced on direct appeal.” Syl. Pt. 2, Ford v. Coiner, Id. The
Court finds that petitioner could have advanced this claim on direct appeal or in his petitions for
habeas corpus. Therefore, this issue is deemed waived. Similarly, this Court finds no merit to
petitioner’s argument that he received a more severe sentence than expected. Petitioner failed to
assert this claim in his direct appeal or in his petitions for writ of habeas corpus. Therefore, this
issue is deemed waived.

       For the foregoing reasons, the circuit court’s October 10, 2014, order denying petitioner’s
motion is hereby affirmed.

                                                                                            Affirmed.


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ISSUED: June 15, 2015

CONCURRED IN BY:

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




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