State v. Marcum

238 W.Va. 26

792 S.E.2d 37

State of West Virginia, Plaintiff Below, Respondent

v.Kenneth Allen Marcum, Defendant Below, Petitioner

No. 15–0696

Supreme Court of Appeals of West Virginia.

Submitted: September 14, 2016

Filed: October 11, 2016

Jerry M. Lyall, Esq., Williamson, West Virginia, Counsel for the Petitioner.

Patrick Morrisey, Esq., Attorney General, David A. Stackpole, Esq., Assistant Attorney General, Zachary Aaron Viglianco, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for the Respondent.

LOUGHRY, Justice:

The petitioner, Kenneth Allen Marcum, appeals the June 18, 2015, order of the Circuit Court of Mingo County denying his motion to reduce his sentence filed under Rule 35(b) of the West Virginia Rules of Civil Procedure. Following the entry of his guilty plea, the petitioner was convicted of two felonies: Conspiracy to commit the destruction of property and Attempt to commit grand larceny. He was sentenced to consecutive terms of incarceration of one to five years and one to three years, respectively. The petitioner asserts that the circuit court abused its discretion in not reducing his sentence by awarding him probation or concurrent sentencing. He also asserts that the circuit court erred by sentencing him on his felony conspiracy conviction when evidence presented during his sentencing hearing indicated his crime was a misdemeanor. During the pendency of this appeal, the Court asked the parties to brief the issue of whether the Court had jurisdiction to consider issues unrelated to the petitioner's Rule 35(b) motion, and they have done so. For the reasons stated herein, we find the petitioner's assignment of error challenging his felony conspiracy conviction exceeds the scope of Rule 35(b) and is not properly before the Court. Following a careful review of the briefs, the arguments of counsel, the record submitted, and the applicable law, we further find no reversible error regarding the circuit court's refusal to award either concurrent sentencing or probation, and we affirm the circuit court's denial of the petitioner's Rule 35(b) motion.

I. Facts and Procedural Background

On September 17, 2014, a Mingo County Grand Jury returned a four-count indictment against the petitioner charging, as follows: Count I—injuring and defacing a truck owned by Randy Gilman causing a loss in the value of the property in the approximate amount of $2,551.09¹ in violation of West Virginia Code § 61–3–30(b) (2014); Count II—conspiracy to commit Count I in violation of West Virginia Code § 61–10–31 (2014) and § 61–3–30(b) ; Count III—entering without breaking a storehouse owned by Ernestine Richardson with intent to commit larceny in violation of West Virginia Code § 61–3–12 (2014); and Count IV—grand larceny by taking and carrying away an all terrain vehicle owned by Ernestine Richardson in violation of West Virginia Code § 61–3–13(a) (2014). The petitioner entered into a plea agreement with the State whereby he would plead guilty to Count II, as charged, and to the lesser included offense of Attempt to commit the grand larceny charged in Count IV. In return for his guilty pleas, the State agreed to dismiss Counts I and III and to recommend concurrent sentencing.

In his Petition to Enter Guilty Plea filed below, the petitioner stated that he had consulted with his attorney prior to accepting the proposed plea agreement and that his attorney had explained the charges against him. Although the State agreed to recommend concurrent sentencing, the petitioner expressly acknowledged in the Petition to Enter Guilty Plea that sentencing was within the circuit court's sole discretion:

I know and understand that this Court will not be bound by any agreement or recommendation by the Prosecuting Attorney which pertains to the sentence I will receive if I plead guilty in this case, that the matter of sentencing is strictly for the Court to decide, and that the Court will not be obligated or required to give any effect whatever to such recommendations.

I understand that I cannot withdraw this plea if I am not satisfied with the sentence that is imposed or the disposition that is made. I understand that I cannot withdraw this plea if the Court does not follow the recommendation of the Prosecuting Attorney on the sentence, the disposition or on probation. I understand that if probation is denied I cannot withdraw this plea.

On November 17, 2014, the circuit court held a plea hearing during which the petitioner acknowledged that he had read, understood, and signed the Plea Agreement, the Petition to Enter Guilty Plea, the Defendant's Statement in Support of Guilty Plea, and the Plea Form. The petitioner also confirmed that he understood the rights he was waiving by pleading guilty. With regard to the circuit court's discretion in sentencing, the following exchange transpired between the circuit court and the petitioner:

Q: Do you understand that if the Court doesn't want to the Court does not have to accept the State's recommended sentence, and, if that happens, you don't have the right to withdraw your plea? Do you understand?

A: Yes, ma'am.

Thereafter, the petitioner pled guilty to Conspiracy to commit the destruction of property charged in Count II and to Attempt, a lesser included offense of the grand larceny charged in Count IV of the indictment. At the close of the plea hearing, the circuit court accepted the plea agreement and expressly "reserve[d] the right not to follow the State's recommended sentence." On December 5, 2014, the circuit court entered its Plea Order in which it adjudged the petitioner convicted of the "Conspiracy [Destruction of Property] and Attempt [Grand Larceny]."

A sentencing hearing was held before the circuit court on January 22, 2015. During this hearing, the State advised the circuit court that the petitioner had violated his home confinement, had failed to attend his appointments with his probation officer, and had failed to report to the Day Report Center. The State further advised that because the petitioner had also failed to meet with the probation office for a Level of Service/Case Management Inventory ("LS/CMI") evaluation,² the probation office was unable to prepare a pre-sentence investigation report.³ The petitioner's counsel proffered that the petitioner's failures were due to his lack of transportation.⁴ In addressing the matter of restitution, the State informed the court that based on the information available to it, the amount of restitution for Conspiracy to commit the destruction of property was $2,580. The State then presented the testimony of the victim, Mr. Gilman, who stated he was able to have his truck repaired by an individual at a cost of $478.

On January 29, 2015, the circuit court entered an order sentencing the petitioner, as follows: one to five years incarceration for Conspiracy to commit the destruction of property and one to three years incarceration for Attempt to commit grand larceny. Notwithstanding the State's recommendation of concurrent sentencing, the circuit court ordered the terms of incarceration to be served consecutively. The circuit court also ordered restitution in the amount of $478 to be paid to Mr. Gilman for the repairs to his truck. The circuit court's sentencing order further provided that the petitioner's counsel had ten days to file written objections to the sentencing order and, if no objections were filed, the sentencing order would continue with "full force and effect." The petitioner did not file any written objections and, on February 3, 2015, the circuit court entered a commitment order.

The petitioner did not file a direct appeal of his convictions or sentencing. Instead, on April 20, 2015, he filed a motion in the circuit court under Rule 35(b) of the West Virginia Rules of Criminal Procedure.⁵ The petitioner asserted in his motion that although he believed throughout plea negotiations that the damage to Mr. Gilman's truck was less than $2,500,⁶ he agreed to plead guilty to felony conspiracy because he believed the sentence for that crime would run concurrently with the sentence for his conviction for attempt to commit grand larceny.⁷ The petitioner asked the circuit court to reduce his consecutive sentencing to concurrent sentencing or, "in the alternative, ... to reconsider his sentence and grant him probation for the remainder of his sentence[.]"

On May 12, 2015, the circuit court held a hearing on the petitioner's Rule 35(b) motion. During this hearing, the petitioner reiterated his request for either concurrent sentencing or a grant of probation on his remaining sentence. The circuit court stated that "there's nothing for me to base any kind of rational sentence on if he doesn't show up and participate in that [his pre-sentence conference or consultation], so he puts me in a bad position to where I have no choice but to run consecutive rather than concurrently." On June 18, 2015, the circuit court entered an order denying the Rule 35(b) motion. This appeal followed.

II. Standard of Review

The petitioner challenges the circuit court's denial of his motion filed under Rule 35(b) of the West Virginia Rules of Criminal Procedure. Our standard for reviewing such orders is well-settled:

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). With this standard in mind, we proceed to consider the parties' arguments.

III. Discussion

A. Rule 35(b) of the West Virginia Rules of Criminal Procedure

Although the petitioner appeals the denial of his Rule 35(b) motion, he...