                               STATE OF WEST VIRGINIA
                             SUPREME COURT OF APPEALS


State of West Virginia,                                                          FILED
Plaintiff Below, Respondent                                                    October 18, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
vs)   No. 13-0052 (Randolph County 96-F-17)                                   OF WEST VIRGINIA


Cordell W. Parrack,
Defendant Below, Petitioner


                                MEMORANDUM DECISION

       Petitioner Cordell W. Parrack, pro se, appeals the order of the Circuit Court of Randolph
County denying petitioner’s motion in arrest of judgment. Respondent State of West Virginia, by
counsel Laura Young, filed a response in support of the circuit court’s order.

       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.

       Petitioner went to trial on April 8 and 9, 1996, and was found guilty by jury of aggravated
robbery and conspiracy to commit robbery. He was sentenced by order dated May 16, 1996, to
eighty years of incarceration for his conviction on one count of aggravated robbery, and to one to
five years of incarceration on one count of conspiracy to commit robbery, to be served
concurrently. Petitioner appealed his conviction to this Court, and the appeal was refused on
September 3, 1997. Petitioner now appeals the circuit court’s order dated December 21, 2012,
denying petitioner’s motion in arrest of judgment, filed on December 17, 2012. The circuit court
found that the request was untimely under Rule 34 of the West Virginia Rules of Criminal
Procedure, as such motions must be made within ten days of a plea or verdict.

       This Court has stated as follows:

       “In reviewing challenges to the findings and conclusions of the circuit court, we
       apply a two-prong deferential standard of review. We review the final order and
       the ultimate disposition under an abuse of discretion standard, and we review the
       circuit court's underlying factual findings under a clearly erroneous standard.
       Questions of law are subject to a de novo review.” Syl. Pt. 2, Walker v. West
       Virginia Ethics Comm’n, 201 W.Va. 108, 492 S.E.2d 167 (1997).


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Syl., In re Dandy, 224 W.Va. 105, 680 S.E.2d 120 (2009) (per curiam). Petitioner herein argues
that the circuit court should have granted his motion in arrest of judgment because the indictment
for aggravated robbery was fatally defective, as it failed to allege all of the elements of robbery,
and because the language contained in the indictment was not consistent with the language found
in West Virginia Code § 61-2-12. This Court has held that although a motion in arrest of
judgment must generally be filed within ten days of a guilty verdict or a plea, if the basis for the
motion is a defective indictment, and the indictment is in fact defective, then the indictment may
be challenged at any time. See State v. Johnson, 219 W.Va. 697, 639 S.E.2d 789 (2006).
However, in this case, the Court finds that the indictment was sufficient. West Virginia Code §
61-2-12 as it existed in 1996 provided in pertinent part that “if any person commit or attempt to
commit robbery . . . by the threat or presenting of firearms, . . . he shall be guilty of a felony.” The
indictment in this matter essentially mirrors that code section:

       Count 1: AGGRAVATED ROBBERY (WV Code § 61-2-12) That Cordell Wade
       Parrack and Stephen Parrack, on or about August 28, 1995, in the said County of
       Randolph, State of West Virginia, did unlawfully and feloniously rob the victim
       Jenny Lou Louk, agent for Roger Fussell dba Bruce Store located along US Route
       250 south between Beverly and Dailey, of $315.00 cash, by the threat and
       presenting of a firearm, i.e., shotgun or rifle, with the intent to permanently deprive
       the victim of said property, against the peace and dignity of the State of West
       Virginia.

Since the indictment in this matter was not defective or insufficient, this Court finds no abuse of
discretion in the circuit court’s order denying the Rule 34 motion as untimely since it was filed
approximately sixteen years after the verdict.

       For the foregoing reasons, we affirm.

                                                                                             Affirmed.

ISSUED: October 18, 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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