1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia

, Plaintiff Below, Respondent

vs. ) No. 1 9

- 0 578 ( Summers County 1 7

- F

- 2 1 )

Jeremy Fountain

, Defendant Below, Petitioner



### MEMORANDUM DECISION

Petitioner Jeremy Fountain

, self

- re presented litigant , appeal s the Circuit Court of

Summers County’s May 29 , 2019

, order denying his motion to correct his sentence under Rule 35(a) of the West Virginia Rules of Criminal Procedure

. Respondent State of West Virginia

, by

counsel Andrea Nease P roper , filed a response in support of the circuit court’s order

. Petitioner filed a reply.

This Court has considered t he parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would no t be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record

pres ented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the c ircuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

Petitioner was indicted on July 18, 2017, on five counts of burglary, four counts of grand larceny, one count of petit larceny, and two counts of destruction of prope rt y. The parties reached a plea agreement to resolve these charges, which required that petitioner plead guilty to

the fiv e burglary charges in exchange for the dismissal of the remaining charges . The parties made no agreement as to sentencing. The circuit c ourt held a plea hearing on October 20, 2017, at which it accepted petitioner’s plea and found that petitioner “freely, voluntarily, intelligently, and knowingly tendered unto this [c]ourt his guilty plea to the five (5) felony offenses of [b]urglary.” 

### FILED
September 4, 2020

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2

Th e parties appeared for sentencing on April 27, 2018. 1 After reviewing the presentence investigation report (“PSI”) and considering the statements and arguments of counsel, the court denied pet itioner’s request for probation or other alternative sentence an d sentenced him to

indeterminate terms of not less tha n one nor more than fifteen years of incarceration for each burglary conviction. 2 The court further ordered that the sentences run consec utively.

On May 23, 2019, petitioner filed a “Motion for Sente nc e Reconsideration under Rule 35(a) of the West Virginia [ Rules of ] Criminal Procedure.” In his motion, petitioner asserted that he had been diagnosed with anti

- social personality disorder, bi polar disorder, adjustment disorder, post

- traumatic stress diso rd er, and opioid dependence, and he claimed that as a result of at least some of these diagnoses, he had been awarded disability benefits from the United States Department of Veterans Affairs. 3 P etitioner stated that in 2008, he was determined to be incomp et ent to stand trial and to lack criminal responsibility by the Circuit Court of Monroe County, West Virginia

, 4 and he claimed that, in 2017, the Circuit Court of Mercer County, West Virginia , suspended imposition of a prison sentence in favor of placing p et itioner on probation due to his prior competency/criminal responsibility determinations and military service. 5 Further, petitioner asserted that the court sentenc ed him without reviewing his PSI. Thus , petitioner argued that he was “illegally held crimin al ly responsible” for his acts in the instant matter.

The court denied petitioner’s motion by order entered o n May 29, 2019, and this appeal

followed.

1 Sentencing was continued on several occasions to afford petitioner the opportunity to complete substance abuse treatment.

2 Petitioner’s sentence is in accord wit h the statutory penalty for the crime of burglary.

See W. Va. Code § 61

- 3

- 11(a) (providing t hat the penalty for burglary is imprisonment “for not less than one nor more than 15 years”).

3 Petitioner provided no corroboration of the alleged diagnoses or di sa bility award

.

4 Petitioner appended an order entered on February 1 2 , 2009, by the Circuit Court of Monroe County, West Virginia, detailing that petitioner had been found not competent to stand trial at an earlier point in those proceedings and had under go ne inpatient tre atment. Following successful treatment resulting in petitioner regaining competency, the February 1 2 , 2009, order adjudged that petitioner was competent to stand trial and assist in the preparation of his defense.

No mention was made of a d etermination on criminal responsibility.

5 The May 22, 2018, order entered by the Circuit Court of Mercer County, West Virginia, and appended to petitioner’s motion suspended imposition of a prison sentence for petitioner’s breaking and entering, second

- d egree robbery, and grand larceny convictions, and placed petitioner on probation for seven years. Although the court recommended that petitioner be permitted to part icipate in a residential substance abuse treatment program, it made no express

mention of p etitioner’s alleged mental illnesses or any factor they played in the court’s sentencing decision

.3

On appeal, petitioner maintains that he is serving an illegal sentence and that it was imposed in an il legal manner. Petitioner represents that he suffers from various mental illnesses that arose following his military service

. Petitioner argues that, as a result of the earlier

determinations of his mental competency and criminal responsibility by the Mon ro e and Mercer County Circuit Courts and given the testimony of a representative from the Veterans Administration (“VA”)

, who reportedly testified at petitioner’s sentencing in the underlying proceedings as to petitioner’s mental illnesses and the treatmen t offered to him by the VA, the

circuit court should have known that petitioner suffered from mental illness es and ordered a psychologic al evaluation. Due to this failure, petitioner argues that his plea was involuntary

. Petitioner also asserts that the ci rc uit court failed to consider his PSI. For these reasons, petitioner states that the court erred in denying his motion to correct his p urportedly illegal

sentence

.

West Virginia Rule of Criminal Procedure 35(a) provides that “[t]he court may correct an

il legal sentence at any time and may correct a sentence imposed in an illegal manner within the time period provided herein for the redu ction of sentence.” The time period for correcting a sentence imposed in an illegal manner is, in petitioner’s case, 120 d ays after the sentence wa s imposed. 6 W. Va. R. Crim. P. 35(b). O ur review of a circuit court’s ruling on Rule 35(a) motions

is three

- pronged: “ We review the decision on the Rule 35 motion under an abuse of discretion standard; the underlying facts are re vi ewed under a clearly erroneous standard; and questions of law and interpretations of statutes and rules are subject to de novo review. ” Syl. Pt. 1, in part,

State v. Tex B.S. , 236 W. Va. 261, 778 S.E.2d 710 (2015) (citation omitted).

We find no error in t he court’s denial of petitioner’s Rule 35(a) motion

. 7 In support of his motion, petitioner made a number of misrepresentations that were easily discovered by the circuit court, which stripped petitioner’s Rule 35(a) motion of any competent support. First

, petitioner was not determined to be incompetent or to lack criminal responsibility in his Mercer County action , nor did that court make any mention of mental illness in fashioning its sentence

. Further, t he order from that action supports no such assumpt io n as to competency or criminal responsibility because petitioner was sentenced to a term of incarceration, which was suspended in favor of probation. See W. Va. Code §§ 27

- 6 A

- 3 and

- 4 (outlining procedures for individuals found not competent to stand tri al or to lack criminal responsibility). Concerni ng the Monroe

6 Petitioner claims both that his sentence is illegal and that it was imposed in an illegal manner. Although he makes no distinction between the two showin gs

— i.e., an illegal sentence and one imposed in an illegal manner

— we note that to the extent his argum ents address the alleged imposition of his sentence in an illegal manner, they are untimely as his Rule 35(a)

motion was filed well outside the 120

- day ti me period

.

7 The State asserts that the claims made by petitioner are not cognizable under Rule 35(a)

. Because petitioner’s Rule 35(a) motion and attached exhibits readily demonstrate that the motion is devoid of merit, we decline to determine

— and express ly make no pronouncements on

— the scope of that Rule here.4

County action, the order submitted to support petitioner’s claim that he was deemed incompetent to stand trial and lack criminal responsibility , in fact, deems him competent to stand trial and

a ss ist counsel in the preparation of his defense. The record also belies petitioner’s claims that a representative from the VA testified on his behalf at sentencing and that the court did not

consider his PSI : no representative testified, the parties discus se d petitioner’s PSI on the record,

and the cour t detailed that it considered the PSI in its order. Finally

, the circuit court ma d e a specific determination that petitioner’s plea was “ freely, voluntarily, intelligently, and knowingly

tendered unto ” the co ur t. Thus, petitioner’s claims of an illegal sen tence were baseless, and the court did not err in denying his Rule 35(a) motion. 8

For the foregoing reasons, we affirm.

Affirmed.

ISSUED:

CONCURRED IN BY:

Chief Justice Tim Armstead Justice Margaret L. W orkman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison

8 Petitioner filed a motion with this Court on July 21, 2019, requesting appointment of counsel to assist with his appeal. On August 9, 2019, this Court refused that motion. On June 16, 2020, petit io ner filed a second motion with this Court requesting appoi ntment of counsel “to help with the proceedings of my appeal that is now mature and pending before the Court.” Because the circuit court properly denied petitioner’s Rule 35(a) motion, we deny his m otion for appointment of counsel.