STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED State of West Virginia, Plaintiff Below, 

January 17, 2014 Respondent RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 

vs) No. 13-0408 OF WEST VIRGINIA
 (Kanawha County 98-F-50) 

Robert Bowers III, Defendant Below, 

Petitioner 

MEMORANDUM DECISION 

Petitioner Robert Bowers III, pro se, appeals the Circuit Court of Kanawha County’s May 

25, 2012, order denying his motion to correct illegal sentence made pursuant to Rule 35(a) of the 

West Virginia Rules of Criminal Procedure. The State, by counsel Christopher S. Dodrill, filed a 

response and a supplemental appendix, to which petitioner filed a reply. On appeal, petitioner 

alleges that the circuit court erred in denying his motion because he is entitled to additional credit 

for time served and because the circuit court failed to make sufficient findings of fact and 

conclusions of law in its order denying his motion. 

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, 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 1999, petitioner was sentenced to a term of incarceration of sixty years for his 

conviction of aggravated robbery and a consecutive term of incarceration of two to ten years for 

his conviction of malicious wounding following a jury trial. Although petitioner was not initially 

awarded credit for time served, his sentence was amended by order entered in July of 1999 to give 

him credit for 100 days of time served. In 2001, petitioner filed a pro se petition for writ of habeas 

corpus in the circuit court. Petitioner alleged several grounds for habeas relief, including that he 

was not properly awarded credit for time served prior to his convictions. The circuit court 

ultimately denied petitioner habeas relief, and this Court refused petitioner’s appeal of the denial 

by order entered on July 15, 2002. In May of 2012, petitioner filed a pro se motion for correction 

of illegal sentence in the circuit court pursuant to Rule 35(a) of the West Virginia Rules of 

Criminal Procedure, again seeking credit for over 500 days of time served. Without appointing 

counsel or holding a hearing, the circuit court denied the motion by order entered on May 25, 

2012. It is from this order that petitioner appeals. 

We have previously held as follows: 

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“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). 

Syl., State v. Allen, 224 W.Va. 444, 686 S.E.2d 226 (2009). Petitioner argues that from the time of 

his arrest for aggravated robbery and malicious wounding on October 30, 1997, until the date of 

sentencing on March 29, 1999, he was confined in jail on these bondable charges and is entitled to 

547 days of credit for this time served. However, the Court disagrees, as the record in this matter 

clearly shows that for a significant portion of this time, petitioner was incarcerated on unrelated 

charges. According to the record, petitioner was not incarcerated on the charges at issue herein 

until January 22, 1999. As such, it is clear that petitioner is not entitled to the credit he seeks. 

Petitioner argues that he is still entitled to credit for time served against the current 

sentences despite having been incarcerated on unrelated charges because he was subject to a 

detainer on the charges applicable to this appeal. However, petitioner cites to no evidence of such 

a detainer or any applicable case law requiring West Virginia courts to grant defendants credit for 

time served on unrelated charges. To the contrary, this Court has previously held that criminal 

defendants are not entitled to credit for time served in similar situations. See State v. Wears, 222 

W.Va. 439, 445, 665 S.E.2d 273, 279 (2008) (denying a defendant’s request for credit for time 

served between the State’s voluntary dismissal of an indictment and the defendant’s reindictment 

because he remained in custody serving time on unrelated charges); Echard v. Holland, 177 

W.Va. 138, 144, 351 S.E.2d 51, 57 (1986) (incarcerated defendant not entitled to credit for time 

served for offense committed after imposition of sentence on prior crime.). Simply put, petitioner 

is not entitled to have time served credit applied to his current sentence for time spent incarcerated 

on unrelated charges. For these reasons, the Court finds no error in the circuit court denying 

petitioner’s motion. 

As to petitioner’s allegation that the circuit court erred in failing to include sufficient 

findings of fact and conclusions of law in the order being appealed, the Court finds no merit to 

this argument. The circuit court clearly found that “the sentence is a proper sentence with all 

credit for time served being given to the [petitioner].” Because it is clear petitioner is not entitled 

to additional credit for time served, and because this issue has twice been litigated below in the 

form of a corrected sentencing order awarding petitioner 100 days of credit for time served and as 

a ground raised in a prior petition for writ of habeas corpus, the Court finds that the circuit court’s 

order contained the necessary findings of fact and conclusions of law. 

For the foregoing reasons, the circuit court’s May 25, 2012, “Order” denying petitioner’s 

Rule 35(a) motion is hereby affirmed. 

Affirmed. 

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ISSUED: January 17, 2014 

CONCURRED IN BY: 

Chief Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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