1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia, 

Plaintiff Below, Respondent

vs.) No. 20-0604 (Cabell County 19-F-383)

Alvie N.,

Defendant Below, Petitioner

MEMORANDUM DECISION

Petitioner Alvie N., by counsel Steven T. Cook, appeals the July 14, 2020, order of the 

Circuit Court of Cabell County denying his motion for reduction of sentence under Rule 35(b) of 

the West Virginia Rules of Criminal Procedure.1 The State of West Virginia, by counsel Katherine 

M. Smith, filed a response in support of the circuit court’s order. On appeal, petitioner argues that 

the circuit court erred in denying his Rule 35(b) motion and in imposing an illegal sentence. 

The 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 November of 2019, a two-count information was filed against petitioner, charging him 

with first-degree sexual assault in violation of West Virginia Code § 61-8B-(a)(2) and sexual abuse 

by a parent, guardian, custodian, or person in a position of trust in violation of West Virginia Code 

§ 61-8D-5(a). The victim was petitioner’s step-granddaughter, A.A. On that same date, petitioner 

entered a guilty plea to both counts.

The circuit court held petitioner’s sentencing hearing in January of 2020. The victim’s 

mother read a letter written by the victim, and the victim’s mother and the victim’s grandmother 

1

Consistent with our long-standing practice in cases with sensitive facts, we use initials 

where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va. 

254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419 (2013); 

State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W. 

Va. 641, 398 S.E.2d 123 (1990). 

FILED

August 27, 2021

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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also addressed the circuit court. All three requested that petitioner be sentenced to a term of 

incarceration based on the trauma inflicted. Petitioner addressed the circuit court and apologized 

for his actions. However, he claimed that “most of [the child’s] letter was coached” and that he 

was just trying to “help her get by with what she had witnessed through her childhood.” Counsel 

for petitioner asked for an alternative sentence. Counsel argued that petitioner underwent a risk 

assessment, which indicated he was at below average risk for reoffending and was a candidate for 

therapy. Counsel further argued that petitioner had no criminal record, had been continuously 

employed, and had a disabled sister who needed his care. Counsel noted that, if petitioner were 

granted an alternative sentence such as home confinement, the taxpayers of West Virginia would 

not have to pay for his imprisonment. The State argued for the maximum sentence allowable under

both statutes, noting the seriousness of the crimes and petitioner’s lack of remorse. The State noted 

that petitioner continued to blame the child for his actions. Following argument, the circuit court 

sentenced petitioner to 25 to 100 years of incarceration for his conviction of first-degree sexual 

assault and 10 to 20 years of incarceration for his conviction of sexual abuse by a parent, guardian, 

custodian, or person in a position of trust. The circuit court ordered that the sentences be served 

consecutively and followed by twenty-five years of supervised release. Petitioner did not file a 

direct appeal from the circuit court’s February 28, 2020, sentencing order.

In June of 2020, petitioner filed a motion for a reduction of sentence pursuant to Rule 35(b) 

of the West Virginia Rules of Criminal Procedure. In that motion, petitioner requested that his 

sentences be run concurrently, rather than consecutively. Petitioner provided a written statement 

in support, reiterating his remorse for his actions, that he was not a danger to society, and that his 

sister needed him to care for her. Petitioner further stated that he was “eligible for probation” and 

that he had previously been approved by the home confinement office. Alternatively, petitioner 

requested to be moved from Western Regional Jail to the Denmar Correctional Facility.

The circuit court held a hearing on petitioner’s Rule 35(b) motion in July of 2020. 

Petitioner’s counsel argued in favor of running petitioner’s sentences concurrently. Counsel stated 

that petitioner admitted his wrongdoing, had no prior criminal history, and was eligible for home 

confinement. Counsel also noted that petitioner’s sister was disabled and needed care, which 

petitioner could provide. Petitioner addressed the court and apologized for the hurt he caused to 

A.A. and their family. Petitioner asked the court “for help to redeem myself to my family, society, 

and to myself.” Petitioner stated that he posed no threat to anyone and would be grateful for an 

alternative sentence. The State opposed any reduction in sentence, stating that petitioner provided 

no evidence to the circuit court that was not already considered at sentencing. After hearing 

argument, the circuit court denied petitioner’s Rule 35(b) motion, finding “[t]here is nothing here 

that is different or has changed.” Following the circuit court’s holding, counsel for petitioner 

attempted to raise another issue, stating, “I may need to file a subsequent motion” but raised the 

issue of the purported illegality of petitioner’s sentence due to alleged deficiencies in the 

information filed against him. Specifically, counsel argued that the language as contained in count 

one of the information tracked West Virginia Code § 62-8B-3(b), which carried a sentence of 

fifteen to thirty-five years. However, petitioner had been sentenced under West Virginia Code § 

62-8B-3(c), which carried a sentence of 25 to 100 years.2 As such, counsel argued that the charging 

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West Virginia Code § 61-8B-3 provides as follows:

 (continued . . .)
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document was incorrect, and that petitioner’s sentence was illegal. However, because petitioner 

did not properly raise the issue before the court via a Rule 35(a) motion, the circuit court did not 

address petitioner’s objection to an illegal sentence. Petitioner now appeals the circuit court’s July 

14, 2020, order denying his Rule 35(b) motion.

This Court has established the following standard of review for a circuit court’s ruling on 

Rule 35(b) 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).

On appeal, petitioner argues that the circuit court erred in denying his Rule 35(b) motion. 

Petitioner asserts that he should have been sentenced to 15 to 35 years of incarceration, as provided 

(a) A person is guilty of sexual assault in the first degree when:

(1) The person engages in sexual intercourse or sexual intrusion with another 

person and, in so doing:

(i) Inflicts serious bodily injury upon anyone; or

(ii) Employs a deadly weapon in the commission of the act; or

(2) The person, being fourteen years old or more, engages in sexual intercourse or 

sexual intrusion with another person who is younger than twelve years old and is 

not married to that person.

(b) Any person violating the provisions of this section is guilty of a felony and, 

upon conviction thereof, shall be imprisoned in a state correctional facility not less 

than fifteen nor more than thirty-five years, or fined not less than one thousand 

dollars nor more than ten thousand dollars and imprisoned in a state correctional 

facility not less than fifteen nor more than thirty-five years.

(c) Notwithstanding the provisions of subsection (b) of this section, the penalty for 

any person violating the provisions of subsection (a) of this section who is eighteen 

years of age or older and whose victim is younger than twelve years of age, shall 

be imprisonment in a state correctional facility for not less than twenty-five nor 

more than one hundred years and a fine of not less than five thousand dollars nor 

more than twenty-five thousand dollars.
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in West Virginia Code § 62-8B-3(b), rather than 25 to 100 years as provided in West Virginia 

Code § 62-8B-3(c). See supra n.2. According to petitioner, the language in subsection (b) was 

quoted in the information, but he was sentenced under subsection (c). While petitioner signed the

guilty plea forms indicating the higher sentence was a possibility, petitioner avers that he is entitled 

to a strict reading of the information and is subject only to the maximum penalty set forth in that

charging document. As such, petitioner argues that the circuit court erred in denying his motion

because his sentence is clearly illegal. Petitioner also argues that the circuit court erred in refusing 

to reduce his sentence. Petitioner contends that his sentences should have been ordered to run 

concurrently rather than consecutively or that the circuit court should have ordered his transfer to 

another facility. Petitioner also notes that he was a candidate for alternative sentencing, such as 

home confinement; was prepared to attend any requested sexual offender counseling; and lacked 

any prior criminal record. Lastly, petitioner “moves for a good faith change in the law in light of 

the draconian penalties pursuant to the guilty plea herein” and argues that “these types of cases 

have become far too draconian.” Petitioner argues that he received no benefit in pleading guilty 

below and that there was no reason to admit wrongdoing if circuit courts “do not utilize their 

powers for alternative sentences and concurrent sentences.” 

At the outset, we dispense with petitioner’s claim that his sentence is illegal and his request 

for a change in the law. The issues that may be raised in an appeal from a Rule 35(b) order are 

limited. “Rule 35(b) of the West Virginia Rules of Criminal Procedure only authorizes a reduction 

in sentence. Rule 35(b) is not a mechanism by which defendants may challenge their convictions 

and/or the validity of their sentencing.” Syl. Pt. 2, State v. Marcum, 238 W. Va. 26, 792 S.E.2d 37. 

The Marcum Court elaborated,

it is abundantly clear that Rule 35(b) cannot be used as a vehicle to challenge a 

conviction or the validity of the sentence imposed by the circuit court, whether 

raised in the Rule 35(b) motion or in the appeal of the denial of the Rule 35(b) 

motion. In other words, 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. See Syl. Pt. 2, State ex rel. Davis v. Boles, 151 

W. Va. 221, 151 S.E.2d 110 (1966) (“An appellate court is without jurisdiction to 

entertain an appeal after the statutory appeal period has expired.”).

238 W. Va. at 31, 792 S.E.2d at 42 (footnotes omitted). In arguing that his sentence is illegal, 

petitioner challenges the validity of his sentence and alleges errors beyond the scope of the circuit 

court’s ruling on his Rule 35(b) motion. Although petitioner attempted to raise the issue of an 

illegal sentence following the circuit court’s ruling at the hearing on his Rule 35(b) motion, the 

State noted that the issue was not properly before the circuit court and the circuit court did not 

address petitioner’s objection or arguments in that regard. Accordingly, we will not address them 

on appeal.

Turning to the substance of petitioner’s Rule 35(b) motion, we find that he is entitled to no 

relief. The circuit court found that petitioner failed to raise any issues that were not considered at 

the time of sentencing. Indeed, petitioner offered essentially no information relevant to any events 

that occurred after sentencing to support his plea for leniency. We have previously held that, in 

considering a defendant’s Rule 35(b) motion, “circuit courts generally should consider only those 
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events that occur within the 120-day filing period.” Marcum, 238 W. Va. at 27, 792 S.E.2d at 38, 

Syl. Pt. 3, in part; see also id. at 32, 792 S.E.2d at 43 (“It is clear from the record that the petitioner 

failed to cite any event that had occurred post-sentencing that would warrant a reduction in his 

consecutive sentencing or an award of probation.”). Petitioner neither argued nor cited to any 

portion of the record showing any change in circumstances or remedial efforts made by him 

following his sentencing in February of 2020. Rather, petitioner essentially asks this Court to find 

that the circuit court erred in imposing consecutive, rather than concurrent, sentences or in refusing 

to order his transfer to another facility. However, the decision as to whether sentences will be 

served concurrently is entirely within the circuit court’s discretion. This Court has long held that 

“[w]hen a defendant has been convicted of two separate crimes, before sentence is pronounced for 

either, the trial court may, in its discretion provide that the sentences run concurrently, and unless 

it does so provide, the sentences will run consecutively.” Syl. Pt. 3, Keith v. Leverette, 163 W. Va. 

98, 254 S.E.2d 700 (1979); see also W. Va. Code § 61-11-21. Moreover, petitioner fails to cite to 

any authority establishing that he is entitled to his choice of penal institution. Accordingly, we 

conclude that the circuit court did not abuse its discretion in denying petitioner’s Rule 35(b) motion 

for a reduction of sentence.

For the foregoing reasons, the circuit court’s July 14, 2020, order is hereby affirmed.

Affirmed.

ISSUED: August 27, 2021

CONCURRED IN BY:

Chief Justice Evan H. Jenkins 

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton