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Date: 09-21-2020

Case Style:

State of West Virginia vs. Robert Anthony Chester

Case Number: 19-0551

Judge: CONCURRED IN BY: Chief Justice Tim Armstead Justice Margaret L. Workman Justice Elizabeth D. Walker Justice Evan H. Jenkins Justice John A. Hutchison

Court: STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

Plaintiff's Attorney: Karen C. Villanueva-Matkovich

Defendant's Attorney:


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Description: Grafton, West Virginia - burglary, grand larceny, first-degree robbery, two counts of wanton endangerment
with a firearm, one count of a person prohibited from possessing a firearm, two counts of malicious assault, and one count of conspiracy to commit a felony


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In May of 2019, petitioner filed a motion to reduce sentence pursuant to Rule 35(b) of the
West Virginia Rules of Criminal Procedure. Concurrently, petitioner filed a “Motion for Stay
and Abeyance for Rule 35(b) Reduction of Sentence Motion.” Ultimately, the circuit court
summarily denied the Rule 35(b) motion by order entered on May 17, 2019, and found that 1) no
pertinent issues were raised that were not considered at the time of sentencing, 2) there had been
no changes in petitioner’s circumstances warranting a reduction or reconsideration that would
have required a hearing, and 3) petitioner was not a “fit candidate for reduction of sentence.” It is
from the May 17, 2019, order that petitioner now appeals.
In Syllabus Point 1 of State v. Head, 198 W. Va. 298, 480 S.E.2d 507 (1996), we set forth
the pertinent 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.
We explained in Head that the denial of a motion under Rule 35 is generally “not reviewable” in
a case in which no abuse of discretion occurs. Id. at 301, 480 S.E.2d at 510.
First, we address the contents of the circuit court’s final order to determine if it set forth
sufficient findings for meaningful appellate review. See State v. Allman, 234 W. Va. 435, 438,
765 S.E.2d 591, 594 (2014) (holding that a circuit court “speaks through its written orders,
which, ‘as a rule, must contain the requisite findings of fact and conclusions of law to permit
meaningful appellate review.’”). When considering a Rule 35(b) motion to reduce sentence, a
circuit court must review only those events and circumstances occurring between the defendant’s
sentencing and the deadline for a timely filing. Head at 298, 480 S.E.2d 707, syl. pt. 5. Here, the
circuit court clearly explained that no pertinent issues were raised that were not previously
considered at the time of sentencing, which occurred in two separate hearings over a span of
several months. Further, the circuit court found that there had been no changes in circumstances
warranting a reduction or reconsideration that required a hearing. Notably, due to petitioner’s
appeal, he was able to utilize the maximum time allotted for filing his timely motion to reduce
sentence, giving him an “intervening three years [of incarceration] since [his] sentence was
imposed” to change his circumstances.1 Lastly, the circuit court found that petitioner was not a
1Petitioner makes a public policy argument that, due to overcrowding, he spent most of
his time incarcerated in a jail rather than a prison, and, thus, lacked adequate rehabilitation
programs. However, this issue has no bearing upon whether the circuit court abused its discretion
when denying petitioner’s motion to reduce sentence. As this argument is not properly before the
Court, we will not consider it.
3
“fit candidate for reduction of sentence,” finding petitioner’s unsupported arguments contained
in his motion to reduce sentence, which speculated about his ability to undertake future
improvement unpersuasive. Clearly, the circuit court set forth adequate findings for meaningful
appellate review when denying petitioner’s motion to reduce sentence. Therefore, we find no
error.
Petitioner’s remaining assignments of error are based upon alleged procedural errors. He
contends that the circuit court erred in not holding a hearing on his Rule 35(b) motion, not
appointing him counsel, and denying his request to hold the motion in abeyance to allow him
additional time to improve himself in prison. Regarding the holding of a hearing, in State v.
King, 205 W. Va. 422, 518 S.E.2d 663 (1999), we rejected the argument that the circuit court
erred in not holding a hearing on a Rule 35(b) motion.2
In that case, we explained that a hearing
on the motion was unnecessary where the record established that “the circuit court held lengthy
hearings when the appellant pled guilty and when he was sentenced.” King, 205 W. Va. at 425,
518 S.E.2d at 666; see also Head, 198 W. Va. at 306, 480 S.E.2d at 515 (Cleckley, J.,
concurring) (“A Rule 35(b) hearing is not, nor was it ever intended to be, a sentencing hearing.”).
Here, the circuit court held at least two sentencing hearings wherein evidence was presented for
the circuit court’s determination. Similarly, petitioner’s cited authorities for his argument for
appointment of counsel are misplaced, as Rule 32 of the West Virginia Rules of Criminal
Procedure concerns the right of counsel at sentencing—not after sentencing, as is the case here.
Finally, we find no error in the circuit court ruling on petitioner’s Rule 35(b) motion
without waiting to see if petitioner makes progress in prison.3 As petitioner admits, Rule 35(b)
requires that the circuit court rule on the motion within “a reasonable time.” See also Head, 198
W. Va. at 303, 480 S.E.2d at 512 (noting that Rule 35(b) imposes such requirement). Petitioner
cites Rule 45(b) of the West Virginia Rules of Criminal Procedure to support his argument that
the circuit court must hold a motion to reduce sentence in abeyance. However, this rule does not
contemplate such a stay and only contemplates the enlargement of time for an act, such as the
filing of a motion, which is not at issue here.4
Indeed, petitioner admits in his brief that he “was
2Petitioner cites Syllabus Point One of State ex rel. State v. Sims, 239 W. Va. 764, 806
S.E.2d 420 (2017), which provides, that “[w]hen a defendant files a motion to correct a sentence
under Rule 35(a) of the West Virginia Rules of Criminal Procedure, the prosecuting attorney is
entitled to reasonable notice and an opportunity to be heard on the motion” and requests the
Court to expand this holding to require hearings and appointment of counsel for defendants for
such motions. We decline to expand this holding in such a way and further note that petitioner
filed a Rule 35(b) motion to reduce sentence, not a Rule 35(a) motion to correct an illegal
sentence.
3Although the circuit court did not explicitly deny petitioner’s accompanying motion for
stay and/or abeyance, the circuit court’s order denying petitioner’s motion to reduce sentence
rendered his motion for stay moot, and thus, the circuit court did not need to address it.
4Rule 45(b) of the West Virginia Rules of Criminal Procedure provides as follows:

(continued . . .)

4
not asking the [c]ircuit [c]ourt to enlarge the time for filing, but was simply asking the [c]ourt for
more time to rehabilitate himself before the [c]ourt ruled on the Motion for Reduction of
Sentence.” Therefore, we conclude that the circuit court did not abuse its discretion in denying
petitioner’s request for a hearing, request for counsel, and request to hold his Rule 35(b) motion
in abeyance.

Outcome: For the foregoing reasons, the circuit court’s May 17, 2019, order denying petitioner’s Rule 35(b) motion is hereby affirmed.

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