STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED State of West Virginia, Plaintiff Below, 

Respondent January 11, 2016 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

vs) No. 15-0403 (Randolph County 04-F-42) OF WEST VIRGINIA 

Patrick D., Defendant Below, 

Petitioner 

MEMORANDUM DECISION 

Petitioner Patrick D., by counsel Jeremy B. Cooper, appeals the Circuit Court of 

Randolph County’s April 6, 2015, order denying his motion for reduction of sentence.1 The 

State, by counsel Laura Young, filed a response supporting the circuit court’s order. On appeal, 

petitioner alleges that the circuit court erred in denying his motion for reduction of sentence. 

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 June of 2004, a Randolph County grand jury indicted petitioner on three counts of 

second-degree sexual assault; four counts of sexual abuse by a parent, guardian or custodian; 

three counts of incest; and four counts of third-degree sexual assault. Thereafter, petitioner 

entered a guilty plea to two counts of incest. As part of the plea agreement, the State agreed to 

dismiss the remaining charges. 

In June of 2005, the circuit court sentenced petitioner to consecutive terms of 

incarceration of five to fifteen years for each count of incest, in violation of West Virginia Code 

§ 61-8-12. The circuit court suspended the imposition of the second sentence and placed 

petitioner on five years of probation upon discharge of his first sentence. In June of 2012, 

petitioner fully discharged his first sentence and was placed on probation for five years. 

In May of 2013, petitioner’s probation officer filed a notice of probation violation 

alleging that petitioner had contact with a minor child on multiple occasions and failed to report 

1

Consistent with our practice in cases involving sensitive matters, we use initials to protect 

the identity of the child victims in this case. See W.Va. R.A.P. 40(e)(1); State v. Edward Charles 

L., 183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990). 

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such contact in violation of the terms of his probation. Thereafter, the circuit court held a hearing 

during which petitioner admitted to the violations set forth in the probation violation report. By 

order entered August 12, 2013, the circuit court found, by clear and convincing evidence, that 

petitioner violated the terms of his probation by having contact with a minor child on four 

separate occasions and failing to advise his probation officer of the contact. As such, the circuit 

court reimposed petitioner’s original sentence which was initially suspended. 

Several months later, petitioner filed a motion for reconsideration of his sentence arguing 

that he should receive an alternative sentence. By order entered October 22, 2013, the circuit 

court denied petitioner’s motion. However, the circuit court granted petitioner leave to “file a 

motion to address any issues regarding the terms of his probation and findings in the probation 

violation order.” On October 25, 2013, petitioner filed a motion to modify the circuit court’s 

August 12, 2013, order arguing that “incidental” contact with a minor child was not a violation 

of his probation. Following a hearing on petitioner’s motion, the circuit court denied petitioner 

relief by order entered on April 10, 2014. While the circuit court ruled that petitioner failed to 

report the contact, the circuit court found that there was no indication that petitioner’s contact 

with the minor child was deliberate, unsupervised, or placed the child in danger. Further, the 

circuit court directed petitioner to file any petition for appeal and to file a motion for 

reconsideration pursuant to Rule 35(b)2 of the West Virginia Rules of Criminal Procedure in 

May of 2014.3 

Petitioner filed a Rule 35(b) motion in December of 2014, arguing that “it was most 

likely the intention of the [circuit] court to grant relief to [petitioner] several months ago, due to 

mitigating factors that were present alongside the facts that were the basis for the revocation.” In 

February of 2015, the circuit court took petitioner’s motion under advisement and directed the 

Randolph County Probation Office to conduct an investigation of the procedural history and 

make a recommendation. After conducting another hearing, the circuit court, by order entered on 

April 5, 2015, denied petitioner’s motion finding that “repeated violations” occurred. It is from 

this order that petitioner appeals. 

2

Rule 35(b) of the West Virginia Rules of Criminal Procedure provides that: 

A motion to reduce a sentence may be made, or the court may reduce a 

sentence without motion within 120 days after the sentence is imposed or 

probation is revoked, or within 120 days after the entry of a mandate by 

the supreme court of appeals upon affirmance of a judgment of a 

conviction or probation revocation or the entry of an order by the supreme 

court of appeals dismissing or rejecting a petition for appeal of a judgment 

of a conviction or probation revocation. The court shall determine the 

motion within a reasonable time. Changing a sentence from a sentence of 

incarceration to a grant of probation shall constitute a permissible 

reduction of sentence under this subdivision. 

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This Court granted petitioner’s motion to withdrawal his appeal. 

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On appeal, petitioner argues that the circuit court abused its discretion in denying his 

Rule 35(b) motion. 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). Petitioner asserts that the 

circuit court’s April 5, 2015, order overruled its findings in the April 10, 2014, order. However, 

we find no merit in this argument. Here, we find no indication that the circuit court’s April 10, 

2014, and April 5, 2015, orders were inconsistent. Both denied petitioner relief based upon 

repeated violations of the terms of his probation for failing to contact his probation officer 

regarding contact with a minor child. Further, “[p]robation is a matter of grace and not a matter of 

right.” Syllabus Point 1, State v. Rose, 156 W.Va. 342, 192 S.E.2d 884 (1972).” Syl. Pt. 2, State v. 

Hosby, 220 W.Va. 560, 648 S.E.2d 66 (2007). As such, we find no abuse of discretion. 

For the foregoing reasons, the circuit court’s April 5, 2015, order is hereby affirmed. 

Affirmed. 

ISSUED: January 11, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

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