IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2024 Term

_____________________

No. 22-685

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STATE OF WEST VIRGINIA,

Plaintiff Below, Respondent,

v.

KRISTEN NICOLE WETZEL,

Defendant Below, Petitioner.

___________________________________________________________

Appeal from the Circuit Court of Barbour County

Honorable Shawn D. Nines, Judge

Criminal Action No. 20-F-48

AFFIRMED

_________________________________________________________

Submitted: February 21, 2024

Filed: April 17, 2024

Morris C. Davis, Esq.

The Nestor Law Office

Elkins, West Virginia

Attorney for Petitioner

Patrick Morrisey, Esq.

Attorney General

Frankie Dame, Esq.

Assistant Solicitor General

 Ronald T. Goudy, Esq.

 Assistant Attorney General

 Charleston, West Virginia

 Attorneys for Respondent

JUSTICE HUTCHISON delivered the Opinion of the Court.
i

SYLLABUS

“‘“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).’ Syllabus Point 1, State v. Collins, 238 W. Va. 123, 792 S.E.2d 

622 (2016).” Syl. Pt. 1, State v. Walker, 244 W. Va. 61, 851 S.E.2d 507 (2020). 
1

HUTCHISON, Justice:

The petitioner and defendant below, Kirsten Nicole Wetzel, appeals a July 

15, 2022, order, entered by the Circuit Court of Barbour County denying her motion to 

correct her sentence for her conviction of unlawful taking of a vehicle, also known as 

“joyriding,” pursuant to West Virginia Code § 17-8-4(a) (1999).

1

 The petitioner sought an 

order from the circuit court declaring that she is entitled to good time credit2 while serving 

the portion of her sentence requiring 240 hours of actual incarceration. In this appeal, the 

petitioner argues that the circuit court erred in finding that its sentencing order does not 

prevent her from receiving good time credit. Having considered the parties’ briefs and 

oral arguments, the submitted appendix record, and the pertinent authorities, we find no 

error and, therefore, affirm the circuit court’s order. 

I. Facts and Procedural Background

On November 5, 2020, the petitioner was indicted by a Barbour County 

grand jury on one felony count of burglary3 and one misdemeanor count of joyriding. 

1 West Virginia Code § 17A-8-4(a) provides, in pertinent part: “Any person who 

drives a vehicle, not his or her own, without consent of the owner thereof, and with intent 

temporarily to deprive said owner of his or her possession of such vehicle, without intent 

to steal the same, is guilty of a misdemeanor.” 

2 See State ex rel. Valentine v. Watkins, 208 W. Va. 26, 32, 537 S.E.2d 647, 653 

(2000) (explaining “‘good time’ credit contemplates a reduction of or ‘commutation from

. . . sentence[ ] for good conduct’” (additional citation omitted)). 

3 See W. Va. Code § 61-3-11(a) (2018) (“Any person who breaks and enters, or 

enters without breaking, a dwelling house or outbuilding adjoining a dwelling with the 
2 

Subsequently, she reached a plea agreement with the State whereby she agreed to plead 

guilty to the joyriding charge in exchange for dismissal of the burglary count and dismissal 

of a pending misdemeanor charge against her then boyfriend, now husband, arising out of 

the same incident. In addition to dismissal of the other charges, the State agreed to 

recommend a sentence of six months of incarceration with the petitioner only serving ten 

days of actual confinement and the remainder of the sentence suspended in favor of 

probation. 

 The petitioner appeared before the circuit court on July 30, 2021, and entered 

a guilty plea to joyriding in accordance with the plea agreement. After accepting the plea, 

the circuit court proceeded to sentencing4 and adopted the State’s recommended sentence. 

Accordingly, the sentencing order entered on August 19, 2021, provided:

Based upon the testimony and proffer of the parties, the 

Court thereupon ORDERED the Defendant SENTENCED to 

the West Virginia State Regional Jail for six (6) months. The 

Court ORDERED that the Defendant shall serve ten (10) days 

of actual incarceration and the remaining sentence shall be 

suspended and the Defendant placed on unsupervised 

probation for one year. The Defendant can serve the ten days 

in jail on weekends, but the ten days in jail shall be served 

within six months from entry of this order. 

intent to commit a violation of the criminal laws of this state is guilty of a felony and, upon 

conviction thereof, shall be imprisoned in a state correctional facility for not less than one 

nor more than 15 years.”). 

4 The petitioner waived her right to a presentence investigation and report. 
3

Thereafter, the circuit court amended the certified commitment order that was sent to the 

West Virginia Division of Corrections and Rehabilitation by changing the term of 

incarceration from ten days to 240 hours in actual incarceration. 

On January 28, 2022, the petitioner filed a motion pursuant to Rule 35(a) of 

the West Virginia Rules of Criminal Procedure, seeking correction of her sentence.5

 She 

asserted:

After further discussion with officials at the Tygart’s 

Valley Regional Jail, it was related to counsel that Defendant 

is being denied her good time because of the language 

contained within the sentencing order. Specifically, the 

Defendant is being denied her good time credit because the 

commitment order states that she must do a period of “actual 

incarceration,” for a period of “240 hours,” instead of ten days. 

The Defendant seeks amendment of these terms to “ten days of 

incarceration” so that she might receive credit for her good 

time.

 The circuit court held a hearing on the petitioner’s motion on March 9, 2022. 

By order entered July 15, 2022, the circuit court denied the petitioner’s 

motion to correct her sentence. The order indicates that at the March 9, 2022, hearing,

[t]he Defendant called Major Brian Clouser, Chief 

Correctional Officer, as representative of the West Virginia 

Department of Corrections and Rehabilitation . . . Major Brian 

Clouser testified that the Defendant has served a total of onehundred twenty hours (120) hours at the regional jail with “no 

5 Rule 35(a) provides: “The court may correct an illegal sentence at any time and 

may correct a sentence imposed in an illegal manner within the time period provided herein 

for the reduction of sentence.” 
4

good time” credit. Major Brian Clouser testified that the 

Defendant was not entitled to “good time” because the 

commitment order stated that she is to serve two hundred and 

forty hours of actual incarceration of her six-month sentence. 

The Defendant was not a model inmate while at the regional 

jail but did not have any violations that would prohibit her from 

receiving good time if she was entitled to it. Upon questioning 

by the Court, Major Brian Clouser testified that if an inmate 

entered the regional jail at 11:00 p.m. and left at 11:00 a.m. the 

next day, the inmate would be credited with serving two days 

even though the inmate only served twelve hours because the 

inmate was technically incarcerated on two different days. 

In denying the petitioner’s motion, the circuit court explained:

The Defendant’s original Sentencing Order required the 

Defendant to serve ten (10) days of actual incarceration. The 

Court changed that order because the Court had allowed the 

Defendant to serve her sentence as she saw fit in time frames 

no less than twelve hours and over the course of six months. A 

situation could arise where a Defendant could enter the 

regional jail at 11:00 p.m. and leave at 11:00 a.m. the next day 

and receive credit for serving two days, when in fact the 

Defendant served only half a day. For this reason, the Court 

modified the order from serving ten days actual incarceration 

to two-hundred forty hours of actual incarceration. 

The circuit court then found:

The issue of good time, awarding, denying, or 

calculating it, has historically been in the discretion of the West 

Virginia Division of Corrections and Rehabilitation. Any 

defendant can file a civil action against the West Virginia 

Division of Corrections and Rehabilitation if that defendant 

believes they are being denied “good time” or being unlawfully 

confined. The issue at bar is much more akin to a habeas 

proceeding based on the conditions of confinement, wherein 

the proper parties are the warden and the defendant and the 

proper venue is the location of incarceration.

. . . .
5

The Court is not prohibiting the Defendant from 

receiving “good time” nor is it directing the West Virginia 

Division of Corrections and Rehabilitation to deny her “good 

time.” Likewise, it is not ordering the Division of Corrections 

and Rehabilitation to grant Defendant good time; rather the 

Court defers to the West Virginia Division of Corrections and 

Rehabilitation on whether it determines Defendant is entitled 

to “good time” under the laws of West Virginia.

If the Defendant believes she should be receiving credit 

for “good time,” then the Defendant should file a civil action 

against the West Virginia Division of Corrections and 

Rehabilitation. 

 

Finally, the order indicates that the petitioner was given three months to “review her legal 

options.” Upon expiration of those three months and no notice from the petitioner that she 

had filed any action against the West Virginia Division of Corrections and Rehabilitation, 

the circuit court entered its order denying her motion to correct her sentence. This appeal 

followed. 

II. Standard of Review

Our standard of review for an appeal of an order denying a Rule 35 motion 

is well established. As set forth in syllabus point one of State v. Walker, 244 W. Va. 61, 

851 S.E.2d 507 (2020), 

“‘[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.’ Syl. Pt. 1, State v. Head, 198 W. Va. 298, 480 S.E.2d 
6

507 (1996).” Syllabus Point 1, State v. Collins, 238 W. Va. 

123, 792 S.E.2d 622 (2016).

III. Discussion

In this appeal, the petitioner contends that her sentence for her joyriding

conviction is illegal or, alternatively, has been imposed in an illegal manner because

requiring her to serve a period of “240 hours of actual confinement” has resulted in her 

being denied good time credit. She argues that the circuit court cannot deny her good time 

credit because it “is a right created by the Legislature” as this Court recognized in syllabus 

point eight of Woodring v. Whyte, 161 W. Va. 262, 242 S.E.2d 238 (1978). She maintains 

that the uncontroverted testimony given by Major Clouser at the hearing on her Rule 35(a) 

motion clearly established that she has not received good time credit because of the 

language used in the sentencing order. Thus, the petitioner reasons that the circuit court 

had a duty to correct her sentence under Rule 35(a) and abused its discretion when it found 

that its sentencing order does not prohibit her from receiving good time credit. 

Pursuant to the statute criminalizing joyriding, “[a]ny person violating the 

provisions of this section is, for the first offense, guilty of a misdemeanor and, upon 

conviction thereof, shall be fined not more than five hundred dollars, or confined in the 

county or regional jail not more than six months, or both[.]” W. Va. Code § 17A-8-4(b). 

As set forth above, the circuit court imposed the six-month sentence provided by the statute 

upon the petitioner, and then immediately suspended all but 240 hours of that sentence and 
7

placed her on probation. West Virginia Code § 62-12-1 (1975)6 authorizes circuit courts 

to place any person convicted of a crime on probation and West Virginia Code § 62-12-9

(2013)7 permits circuit courts to impose a period of confinement as a condition of 

probation. In that regard, West Virginia Code § 62-12-9(b) provides:

[T]he court may impose, subject to modification at any 

time, any other conditions [of probation] which it may 

determine advisable, including but not limited to . . . 

. . . .

(4) That the probationer, in the discretion of the court, 

is required to serve a period of confinement in jail of the county 

in which he or she was convicted for a period not to exceed one 

third of the minimum sentence established by law or one third 

of the least possible period of confinement in an indeterminate 

sentence, but in no case may the period of confinement exceed 

six consecutive months. The court may sentence the defendant 

within the six-month period to intermittent periods of 

confinement including, but not limited to, weekends or 

holidays and may grant to the defendant intermittent periods of 

release in order that he or she may work at his or her 

employment or for other reasons or purposes as the court may 

determine appropriate: Provided, That the provisions of article 

eleven-a of this chapter do not apply to intermittent periods of 

confinement and release except to the extent directed by the 

court. If a period of confinement is required as a condition of 

probation, the court shall make special findings that other 

conditions of probation are inadequate and that a period of 

confinement is necessary.

6 West Virginia Code § 62-12-1 provides: “Any circuit court of this State shall have 

authority as provided in this article to place on probation any person convicted of a crime.”

7 West Virginia Code § 62-12-9 was amended in 2023. Although only stylistic 

changes were made to the provision relevant in this appeal, we cite to the 2013 version 

because it was in effect at the time of the petitioner’s sentencing. 
8

Interpreting this provision, this Court has held:

The legislative intent reflected in the provisions of West 

Virginia Code § 62-12-9(b)(4) (1994) (Repl. Vol. 2000)8 is to 

establish a six-month limit for the period of incarceration 

which may be imposed as a condition of probation. When a 

minimum or indeterminate sentence is involved, then the 

maximum term of incarceration as a condition of probation is 

one-third of the express minimum or indeterminate sentence or 

six months, whichever is less; for all other types of statutory 

penalties, the maximum term of incarceration as a condition of

probation is six months. 

Syl. Pt. 4, State v. McClain, 211 W. Va. 61, 561 S.E.2d 783 (2002) (footnote added). 

Upon review, we find no merit to the petitioner’s claim that the circuit court 

imposed an illegal sentence. The petitioner’s sentence of six months in the regional jail for 

her conviction clearly falls within the limitations set forth in West Virginia Code § 17A-8-

4(b). Likewise, the suspension of the petitioner’s sentence in favor of probation with the

condition that she serve 240 hours of actual confinement in jail complies with West 

Virginia Code §§ 62-12-1 and 62-12-9(b)(4) as well as this Court’s holding in syllabus 

point four of McClain. Because the petitioner’s sentence is within the statutory limits, it is 

a legal sentence. 

8 The language at issue has remained unchanged despite the subsequent amendments 

to the statute. See supra note 7.
9

As for the petitioner’s argument that the circuit court imposed her sentence 

in an illegal manner9 by requiring her to serve her period of confinement in terms of hours

and not days, she has not provided any authority to support her contention and we are 

unaware of any restriction in that regard. Indeed, “[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.” Syl. Pt. 4, State v. Goodnight, 169 W. Va. 366, 287 S.E.2d 504 

(1982); see also Syl. Pt. 1, in part, State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997)

(“The Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse 

of discretion standard, unless the order violates statutory or constitutional commands.”). 

Accordingly, there is no merit to the petitioner’s argument that her sentence was imposed 

in an illegal manner.

While the petitioner maintains that she is entitled to good time credit while 

serving her period of confinement, we agree with the circuit court that the issue falls within 

the discretion of the West Virginia Division of Corrections and Rehabilitation. As this

Court has observed, “The provisions of West Virginia Code § 28-5-27 (1992) [now West 

Virginia Code § 15A-4-17 (2021)] solely govern the accumulation of ‘good time’ for 

inmates sentenced to the West Virginia State Penitentiary.” Syl. Pt. 3, State v. Jarvis, 199 

W. Va. 635, 487 S.E.2d 293 (1997). That statute provides that the calculation of good time

9 In considering the petitioner’s argument that her sentence was imposed in an illegal 

manner, we assume without deciding that she could satisfy the time limitation placed upon 

such a claim under Rule 35(a). 
10

credit and the rules and policies related thereto are delegated to the Commissioner of the 

Division of Corrections and Rehabilitation. See W. Va. Code § 15A-4-17. As such, there 

is no basis to grant the petitioner any relief under Rule 35(a) of the West Virginia Rules of 

Criminal Procedure. 

IV. Conclusion

Accordingly, for the reasons set forth above, the July 15, 2022, order of the 

Circuit Court of Barbour County is affirmed. 

Affirmed.