1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia, Plaintiff Below, Respondent

v s

. ) No. 19

- 1122 ( Harrison County 16

- F

- 65

- 2 )

Christopher Michael Roof

, Defendant Below, Petitioner



### MEMORANDUM DECISION

Petitioner Christopher Michael Roof , by counsel Matthew S. Delligatti

, appeals the Circuit Court of Harrison County’s November 21, 2019, order denying his motion to correct an allegedly illegal sentence under Rule 35(a) of the West Virginia Rules of Criminal Procedure. Respondent State of West Virginia, by counsel Andrea Nease Proper, fi led a response in support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in denying his Rule 35(a) motion to correct an illegal sentence.

This Court has considered the parties ’ briefs and the record on appeal. Th e 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 order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

The record of the underlying proceedings submitted by petitioner in supp ort of his appeal is sparse and does not contain his indictment or the transcript from his sentencing hearing

. 1

However, f rom the scant appellate record provided by petitioner , we glean th at on May 13, 2016,

a Harrison County jury convicted petitioner of second

- degree robbery. Following petitioner’s conviction, the State filed a recidivist information for purposes of obtaining a sentence

enhancement for the second

- degree robbery conviction based upon petitioner’s prior felony

convictions. Petitioner and t he State engaged in plea negotiations related to the recidivist information which ultimately resulted in petitioner plead ing to having previously been convicted of possession with intent to distribute cocaine base and cocaine hydrochloride , a felony offens e

.

1 Rule 7(d) of the West Virginia Rules of Appellate Procedure require s petitioner to “prepare and file an appendix containing . . . [t]he judgment or order appealed from, and all other orders applicable to the assignments of error on appeal,” “[m]aterial excerpts from official transcripts of testimony or from papers in connection with a motion,” and “[o]ther parts of the record to which the parties wish to direct the Court’s attention.” 

### FILED
April 20, 2021

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 In exchange for this plea , the State agreed not to seek a life recidivist sentence by including petitioner’s additional prior felony convictions for kidnapping and hijacking a motor vehicle. The circuit court sentenced petitioner to not less than ten nor more than eighteen years of incarceration on July 29, 2016

, as an enhanced sentence for the second

- degree robbery conviction

.

On September 19, 2019 , petitioner

, on his own behalf

, filed a motion for correction of

sentence under Rule 35 of the West Virginia Rules of Criminal Procedure , arguing that his sentence violates the mandate against cruel and unusual punishment. Specifically, p etitioner argued that doubling the minimum sentence for second

- degree robbery , from five to ten year s in prison, was “disproportionate to the sentencing guidelines established to afford people considerations and denies Due Process of Law in its application.” Petitioner fur ther argued that his sentence was disproportionate and

, therefore

, illegal because he will discharge his second

- degree robbery sentence before completing his enhanced sentence. The State opposed petitioner’s motion, citing the voluntary nature of petitione r’s plea agreement and arguing that the recidivist statute was properly applied. In November of 2019, the circuit court denied petitioner’s motion, finding that

it had addressed the enhanced penalties under the recidivist statute at petitioner’s plea agree ment hearing. The circuit court further found that petitioner’s sentence was legal and, in fact, required

under the recidivist statute

. See W

. V a. Code § 61

- 11

- 18(a)

. Petitioner now appeals the circuit

court’s November 21, 2019, sentencing order.

In his appeal, petitioner asserts a single assignment of error. He argues that the circuit court erred in denying his motion to correct sentence because his sentence violates the cruel and unusual punishment and equal protection provisions of the West Virginia and United States Constitutions.

We consider petitioner’s assignment of error under the following directive :

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. 29 8 , 480 S.E.2d 507 (1996).

Despite the inadequate record on appeal, it is clear that petitioner’s sentence is neither illegal nor was it imposed in a n il legal manner. We have previously held that “ [s]entences imposed by the trial court, if within statutor y limits and if not based on some [im] permissible factor, are not subject to appellate review.” Syl. Pt. 4, State v. Goodnight

, 169 W. Va. 366, 287 S.E.2d 504 (1982).
Here, t he sentence imposed upon petitioner was within the statutory limits. 2 Furthermore, the

2 See W. Va. Code § 61

- 2

- 12(b) (“ Any person who commits or attempts to commit robbery

. . . is guilty of robbery in the second degree and, upon conviction thereof, shall be confined in a correctional facility for not less than five years nor more than eighteen years .”)

. Given that the

sentence for second

- degree robbery is an indeterminate term o f five to eighteen years of

(continued . . . )3 record is devoid of any evidence that petitioner’s sentence was based upon any impermissible

factor. Because petitioner’s sentence is within the applicab le statutory limits and not based upon any impermissible factors, it is not reviewable on appeal. F inally , to the extent that petitioner argues that we reconsider the recidivist statute , we decline. Based on the foregoing, we find that petitioner is entitl ed to no relief in this regard.

For the foregoing reasons, the circuit court’s November 21, 2019, order denying petitioner relief under Rule 35(a) is hereby affirmed.

Affirmed.

ISSUED: April 20, 2021

CONCURRED IN BY:

Chief Justice Evan H. Jenkins

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton

incarceration, West Virginia Code § 61

- 11

- 18(a) (2000) regarding qualifying recidivist

convictions provides that “t he minimum term shall be twice the term of years otherwise provided

for under such sentence. ”