STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

State of West Virginia, FILED 

Plaintiff Below, Respondent May 24, 2013 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS vs) No. 12-0454 (Monongalia County 05-F-69) OF WEST VIRGINIA 

James L. Brooks III, 

Defendant Below, Petitioner 

MEMORANDUM DECISION 

Petitioner’s pro se appeal arises from the Circuit Court of Monongalia County, wherein 

the circuit court denied petitioner’s motion for reconsideration of sentence by order entered on 

March 15, 2012. The State, by counsel Marland L. Turner, has filed its response and a 

supplemental appendix. 

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 is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

In May of 2005, a Monongalia County Grand Jury returned a four count indictment 

against petitioner charging him with one count of first degree robbery, one count of conspiracy to 

commit robbery, one count of malicious assault, and one count of conspiracy to commit malicious 

assault. Following a jury trial, petitioner was convicted of all counts and was sentenced as 

follows: a term of incarceration of two to ten years for malicious assault and a concurrent term of 

incarceration of one to five years for conspiracy to commit malicious assault; and a term of 

incarceration of forty-five years for first degree robbery and a concurrent term of one to five years 

for conspiracy to commit first degree robbery, said sentences to be served consecutively to the 

malicious assault sentences. After filing two prior unsuccessful motions for reconsideration of 

sentence, petitioner filed a third motion in 2012 which petitioner refers to as “Consolidated 

Motions to Correct Sentence and Motion for Reconsideration.” On March 15, 2012, the circuit 

court denied the motion because it found the same untimely under Rule 35(b) of the West 

Virginia Rules of Criminal Procedure. 

On appeal, petitioner alleges that the circuit court erred in dismissing his motion as 

untimely because it was actually a consolidated motion for correction of sentence and 

reconsideration of sentence, and was filed, in part, pursuant to Rule 35(a). According to 

petitioner, his incarceration for two convictions of conspiracy arising out of a single act 

constitutes an illegal sentence because his protection against double jeopardy has been violated. 

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Petitioner also alleges that his motion to reconsider his sentence in light of his co-defendant’s 

more lenient sentence under Rule 35(b) be considered as timely. According to petitioner, Article 

III, Section 5 of the West Virginia Constitution prohibits disparate treatment between codefendants and sentences disproportionate to the gravity and circumstances of the defendant’s 

actual participation in the crime. 

“‘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, in part, State v. 

Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).” Syl. Pt. 1, State v. McClain, 211 W.Va. 61, 561 

S.E.2d 783 (2002). 

To begin, the Court finds that it was error to deny the portion of petitioner’s motion 

seeking correction of an illegal sentence as untimely because Rule 35(a) of the West Virginia 

Rules of Criminal Procedure states that an illegal sentence may be corrected “at any time . . . .” 

However, despite this error, the Court finds that petitioner is entitled to no relief in regard to his 

allegation that his sentence is illegal because he was convicted of two counts of conspiracy arising 

from a single criminal act. Petitioner was convicted of both conspiracy to commit robbery and 

conspiracy to commit malicious assault, two separate crimes which, by definition, could not have 

arisen out of the same act. We have previously held that “[i]n order for the State to prove a 

conspiracy under W.Va.Code, 61-10-31(1), it must show that the defendant agreed with others to 

commit an offense against the State and that some overt act was taken by a member of the 

conspiracy to effect the object of that conspiracy.” Syl. Pt. 4, State v. Less, 170 W.Va. 259, 294 

S.E.2d 62 (1981). Based upon this holding, it is clear that petitioner’s convictions for the two 

counts of conspiracy arose out of two different acts; namely, agreeing to commit malicious assault 

and agreeing to commit first degree robbery. For these reasons, petitioner’s sentence is legal and 

he is entitled to no relief under Rule 35(a). 

As to petitioner’s remaining argument that the circuit court should have analyzed his 

sentence in comparison to that of his co-defendant, the Court finds no error in the circuit court 

denying the motion as untimely. Rule 35(b) of the West Virginia Rules of Criminal Procedure 

clearly states that a motion for reduction of sentence must be made within 120 days after sentence 

is imposed. It is undisputed that petitioner failed to meet this deadline, and the circuit court was 

correct to deny the motion as untimely, to the extent petitioner sought a reduction of sentence. 

For the foregoing reasons, the circuit court’s sentencing order is hereby affirmed. 

Affirmed. 

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ISSUED: May 24, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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