STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS
 

State of West Virginia, FILED 

Plaintiff Below, Respondent April 9, 2018 

EDYTHE NASH GAISER, CLERK 

vs.) No. 17-0301 (Jackson County 16-F-6) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Michelle Eads, 

Defendant Below, Petitioner 

MEMORANDUM DECISION 

Petitioner Michelle Eads, by counsel Kevin B. Postalwait, appeals the Circuit Court of 

Jackson County’s February 27, 2017, order denying her Rule 35(b) motion for reduction of 

sentence. The State, by counsel Shannon Frederick Kiser, filed a response. On appeal, petitioner 

argues that the circuit court abused its discretion in denying her Rule 35(b) motion for reduction 

of 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, this 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. 

On February 23, 2016, petitioner was indicted for one count of daytime burglary, one 

count of grand larceny, and one count of conspiracy. Petitioner entered into a plea agreement 

with the State whereby she agreed to plead guilty to one count of conspiracy and testify against a 

co-defendant in exchange for the dismissal of the remaining counts. Following the entry of her 

guilty plea, petitioner underwent a presentence diagnostic evaluation which indicated that she 

had a high risk level of recidivism. 

On November 10, 2016, petitioner was sentenced to one to five years of incarceration, 

with credit for twenty-two days for time served. The circuit court further ordered petitioner to 

pay restitution to the victims, joint and several with her co-defendant, in the amount of 

$2,200.00. Thereafter, she filed a “Motion for Reconsideration” pursuant to Rule 35(b) of the 

West Virginia Rules of Criminal Procedure. Petitioner urged the circuit court to impose the 

alternative sentence of home incarceration recommended by the State. Petitioner informed the 

circuit court that she recently spent her first Thanksgiving and Christmas holidays away from her 

children, which had a “huge impact” on her, and that she did not want to miss those family 

moments in the future. Ultimately, without holding a hearing, the circuit court denied petitioner’s 

motion on February 27, 2017, after consideration of petitioner’s motion, the record, the 

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presentence diagnostic evaluation, and the statements of counsel. It is from this order that 

petitioner appeals. 

On appeal, petitioner argues that the circuit court abused its discretion in denying her 

Rule 35(b) motion without holding a hearing.1

 Petitioner argues that at the time the circuit court 

denied her motion for reconsideration, she had been incarcerated for four months, which she 

contends established a change in circumstances sufficient to warrant a hearing upon the motion. 

We have previously established the following standard of review regarding orders that 

deny Rule 35 motions: 

“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). 

Marcum, 238 W.Va. at 27, 792 S.E.2d at 38, Syl. Pt. 1. 

While petitioner argues that the circuit court abused its discretion by denying her Rule 

35(b) motion without first holding a hearing, she cites to no authority supporting her argument. 

We note “skeletal arguments” that are nothing more than assertions do not preserve claims. State 

v. Myers, 229 W.Va. 238, 246, 728 S.E.2d 122, 130 (2012). Indeed, 

[a]n appellant must carry the burden of showing error in the judgment of which he 

complains. This Court will not reverse the judgment of a trial court unless error 

affirmatively appears from the record. Error will not be presumed, all 

presumptions being in favor of the correctness of the judgment. 

Id. at 241, 728 S.E.2d at 125, Syl. Pt. 4, in part (internal quotations and citations omitted). In her 

brief on appeal, petitioner simply asserts that the circuit court erred in denying her Rule 35(b) 

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Petitioner also argues that the sentence imposed is disproportionate given the nature of 

the offense, the legislative purpose behind the punishment, and comparisons of imposed 

sentences for similar offenses. Petitioner’s arguments concerning the proportionality of her 

sentence are outside the scope of appeal of a ruling on a Rule 35(b) motion. In State v. Marcum, 

238 W.Va. 26, 792 S.E.2d 37 (2016), we held that “Rule 35(b) is not a mechanism by which 

defendants may challenge their convictions and/or the validity of their sentencing.” 238 W.Va. at 

27, 792 S.E.2d at 38, Syl. Pt. 2, in part. Rule 35(b) may not be used to challenge the validity of a 

sentence, “whether raised in the Rule 35(b) motion or in the appeal of the denial of the Rule 

35(b) motion.” 238 W.Va. at 31, 792 S.E.2d at 42. Instead, “challenges to convictions or the 

validity of sentences should be made through a timely, direct criminal appeal before this Court 

will have jurisdiction to consider the matter.” Id. Because petitioner’s argument challenging her 

sentence exceeds the scope of a Rule 35(b) motion, it is not properly before the Court. 

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motion without first holding a hearing when she had continuously served her sentence for four 

months, demonstrating a change in circumstances sufficient to warrant a hearing. Given that 

petitioner cites to no law regarding her alleged error and that the circuit court set forth the 

reasons for its denial, we will not presume error and find that the circuit court did not abuse its 

discretion in denying petitioner’s motion. 

For the foregoing reasons, the circuit court’s February 27, 2017, order denying 

petitioner’s Rule 35(b) motion is hereby affirmed. 

Affirmed. 

ISSUED: April 9, 2018 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

Justice Elizabeth D. Walker 

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