STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

State of West Virginia, Plaintiff Below, FILED 

Respondent September 22, 2014 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS vs) No. 13-1207 (Marion County 10-F-94) OF WEST VIRGINIA 

John H., Defendant Below, 

Petitioner 

MEMORANDUM DECISION 

Petitioner John H., by counsel Michael Safcsak, appeals the Circuit Court of Marion 

County’s October 23, 2013, order denying his motion for reconsideration of sentence made 

pursuant to Rule 35 of the West Virginia Rules of Criminal Procedure.1 The State, by counsel 

Laura Young, filed a response. On appeal, petitioner alleges that the circuit court erred in denying 

his motion because he should have received probation or alternative sentencing, and further 

challenges the sentence imposed, generally. 

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. 

During the June 2010 term of the Marion County Grand Jury, petitioner was indicted on 

several sexual offenses involving children, including sexual assault in the third degree, two counts 

of sexual abuse by a parent or guardian, sexual assault in the first degree, and sexual abuse in the 

first degree. After numerous continuances in the criminal proceedings, petitioner retained counsel 

in late 2012. Thereafter, in February of 2013, a plea agreement was reached whereby petitioner 

entered Alford pleas to one count of sexual assault in the third degree and one count of sexual 

abuse in the first degree.2 The remaining counts of the indictment were dismissed, a pre-sentence 

1

In keeping with this Court’s policy of protecting the identity of minors and the victims of 

sexual crimes, petitioner will be referred to by his last initial throughout the memorandum 

decision. See, e.g., State v. Larry A.H., 230 W. Va. 709, 742 S.E.2d 125 (2013); State v. Edward 

Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990). 

2

North Carolina v. Alford, 400 U.S. 25 (1970). Under Alford, “[a]n accused may 

voluntarily, knowingly and understandingly consent to the imposition of a prison sentence even 

though he is unwilling to admit participation in the crime, if he intelligently concludes that his 

1
­
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

investigation was ordered, and petitioner was permitted to seek and introduce psychiatric 

evidence at sentencing. 

In June of 2013, petitioner was sentenced to a term of incarceration of five to twenty-five 

years for his conviction of sexual abuse in the first degree and a term of incarceration of one to 

five years for his conviction of sexual assault in the third degree, said sentences to run 

consecutively. Additionally, the circuit court ordered that petitioner comply with twenty-five 

years of supervised release following his incarceration. Thereafter, petitioner, by counsel, filed a 

motion to reconsider his sentence under Rule 35 of the West Virginia Rules of Criminal 

Procedure, which the circuit court denied by order entered on October 22, 2013. It is from this 

order that petitioner appeals. 

In regard to motions made pursuant to Rule 35(b), we have previously held that 

“[i]n 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.” 

Syllabus Point 1, State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996). 

Syl. Pt. 1, State v. Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010). Upon our review, we find no 

abuse of discretion in the circuit court’s denial of petitioner’s motion. In support of his 

assignment of error, petitioner simply asserts that “the State’s case [against him] was weak[;]” 

that a grandmother’s testimony regarding one of the victims undergoing therapy as a result of the 

abuse was possibly false; that he has been a model inmate; and that if released, he would have the 

support of his family and employer. However, the Court finds no merit to petitioner’s argument 

that he should be entitled to alternative sentencing. 

We have previously held that “‘[t]he decision of a trial court to deny probation will be 

overturned only when, on the facts of the case, that decision constituted a palpable abuse of 

discretion.’ Syl. Pt. 2, State v. Shafer, 168 W.Va. 474, 284 S.E.2d 916 (1981).” Syl. Pt. 3, State v. 

Shaw, 208 W.Va. 426, 541 S.E.2d 21 (2000). Upon our review, the Court finds no abuse of 

discretion in the circuit court’s denial of petitioner’s request for probation or alternative 

sentencing. West Virginia Code § 62-12-3 grants circuit courts discretion in ordering a defendant 

to serve a sentence on probation. The record in this matter is replete with facts supporting the 

circuit court’s sentence, including that petitioner originally faced a sentence of 51 to 170 years of 

incarceration if convicted of all the charges with which he was indicted. Further, the Court notes 

that petitioner perpetrated sexual crimes against two different minors. As such, we find no abuse 

of discretion in denying petitioner probation or home incarceration. 

interests require a guilty plea and the record supports the conclusion that a jury could convict 

him.” Kennedy v. Frazier, 178 W.Va. 10, 12, 357 S.E.2d 43, 45 (1987). 

2 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

As to petitioner’s general challenge of the sentence imposed, the Court notes that 

“‘[s]entences imposed by the trial court, if within statutory limits and if not based on some 

[im]permissible factor, are not subject to appellate review.’ Syllabus Point 4, State v. Goodnight, 

169 W.Va. 366, 287 S.E.2d 504 (1982).” Syl. Pt. 3, State v. Georgius, 225 W.Va. 716, 696 S.E.2d 

18 (2010). Petitioner was sentenced to a term of incarceration of five to twenty-five years for his 

conviction of sexual abuse in the first degree and a term of incarceration of one to five years for 

his conviction of sexual assault in the third degree. A review of the record shows that petitioner 

was sentenced to the statutory maximum for these crimes, pursuant to West Virginia Code §§ 61­

8B-7(c) and 61-8B-5(b), respectively. Further, the record shows that the circuit court did not rely 

on any impermissible factors in imposing sentence. As such, petitioner’s sentences are not subject 

to review on appeal. 

For the foregoing reasons, the circuit court’s October 23, 2013, order denying petitioner’s 

motion is hereby affirmed. 

Affirmed. 

ISSUED: September 22, 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 

3
­