STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED State of West Virginia,
 

Plaintiff Below, Respondent October 13, 2017
 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS vs) No. 16-0791 (Cabell County 94-F-153) OF WEST VIRGINIA 

James Crabtree,
 

Defendant Below, Petitioner
 

MEMORANDUM DECISION 

Petitioner James Crabtree, pro se, appeals the July 29, 2016, order of the Circuit Court of 

Cabell County denying his motion for correction of illegal sentence. Respondent the State of West 

Virginia (“the State”), by counsel Shannon Frederick Kiser, filed a summary response in support 

of the circuit court’s order. Petitioner filed a reply. 

The 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 State v. Crabtree, 198 W.Va. 620, 625, 482 S.E.2d 605, 610 (1996), this Court affirmed 

petitioner’s life sentence of incarceration pursuant to the West Virginia Habitual Criminal Statute, 

West Virginia Code §§ 61-11-18 to -19, based on a recidivist information filed by the State 

following his conviction for malicious wounding. The recidivist information alleged that 

petitioner had been twice convicted of prior felonies as required by West Virginia Code § 

61-11-18(c). 198 W.Va. at 634, 482 S.E.2d at 619 (finding that the requisite number of felonies 

had been alleged). However, the State had to amend the recidivist information to correctly reflect 

that one of the prior felony convictions was a lesser included offense of the charge originally 

alleged. Id. The circuit court allowed the amendment, finding that it corrected a mere 

typographical error and did not constitute “a material change.” Id. On appeal in Crabtree, 

petitioner argued that his recidivist life sentence was void because of the amendment; however, 

this Court rejected petitioner’s argument and concurred with the circuit court characterization of 

the amendment as immaterial. Id. at 633-34, 482 S.E.2d at 618-19. 

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On January 29, 2016, petitioner filed a motion for correction of illegal sentence pursuant to 

Rule 35(a) of the West Virginia Rules of Criminal Procedure.1 In his motion, petitioner contended 

that his recidivist life sentence was void because the State’s amendment to the recidivist 

information constituted a material change. The circuit court denied petitioner’s motion by order 

entered on July 29, 2016, finding that the issue of the amended recidivist information was fully and 

finally adjudicated by this Court’s decision in Crabtree. 

Petitioner appeals from the circuit court’s July 29, 2016, order denying his Rule 35(a) 

motion for correction of illegal sentence. In syllabus point 1 of State v. Head, 198 W.Va. 298, 480 

S.E.2d 507 (1996), we set forth the pertinent standard of review: 

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. 

In syllabus point 9 of Crabtree, we held as follows: 

“A person convicted of a felony may not be sentenced pursuant to W. Va. 

Code, 61-11-18, -19 [1943], unless a recidivist information and any or all material 

amendments thereto as to the person’s prior conviction or convictions are filed by 

the prosecuting attorney with the court before expiration of the term at which such 

person was convicted, so that such person is confronted with the facts charged in 

the entire information, including any or all material amendments thereto. W. Va. 

Code, 61-11-19 [1943].” Syl. Pt. 1, State v. Cain, 178 W.Va. 353, 359 S.E.2d 581 

(1987). 

198 W.Va. at 623-4, 482 S.E.2d at 608-9. 

On appeal, petitioner contends that we should revisit the decision in Crabtree in light of 

our recent holding in syllabus point of 1, Holcomb v. Ballard, 232 W.Va. 253, 752 S.E.2d 284 

(2013), that the procedural requirements of West Virginia Code § 61-11-19 “are mandatory, 

jurisdictional, and not subject to harmless error analysis.”2 The State counters that the issue of the 

amended recidivist information was fully and finally adjudicated in Crabtree. See Syl. Pt. 3, In Re 

Name Change of Jenna A.J., 234 W.Va. 271, 765 S.E.2d 160 (2014) (holding that, “when a 

question has been definitely determined by this Court[,] its decision is conclusive on parties, 

1

Rule 35(a) provides that an illegal sentence may be corrected at any time. 

2

West Virginia Code § 61-11-18 contains the Habitual Criminal Statute’s substantive 

provisions. West Virginia Code § 61-11-19 sets forth the procedural requirements for imposing a 

recidivist sentence. 

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privies and courts, including this Court, upon a second appeal”) (internal quotations and citations 

omitted). The State further argues that petitioner’s reliance on Holcomb is simply misplaced. We 

agree with the State. 

In Cain, we found that an amendment adding a felony offense constituted a material 

change to a recidivist information that must be made in the same term as the defendant was 

convicted of the triggering offense. 178 W.Va. at 357-58, 359 S.E.2d at 585-86. In Crabtree, we 

distinguished Cain on the basis that “there was no new offense added” by the amendment to the 

recidivist information in this case. 198 W.Va. at 634, 482 S.E.2d at 619. We explained in Crabtree 

that “the listed offense of ‘breaking and entering’ was merely changed to reflect the correct 

conviction of the lesser offense of ‘entering without breaking.’” Id. Thus, we concurred with the 

circuit court’s finding that the amendment “was not a material change” and concluded that there 

was no error at all. Id. Therefore, we find that our decision in Crabtree regarding the amended 

recidivist information, which fully and finally adjudicated that issue, was not based on the 

harmless error doctrine. 3 Accordingly, we conclude that the circuit court properly denied 

petitioner’s Rule 35(a) motion.4 

For the foregoing reasons, we affirm the circuit court’s July 29, 2016, order denying 

petitioner’s Rule 35(a) motion for correction of illegal sentence. 

Affirmed. 

ISSUED: October 13, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

3

We did discuss the harmless error doctrine in Crabtree; however, contrary to petitioner’s 

contention that discussion was not part of our analysis of the amended recidivist information. See 

id. at 633-34, 482 S.E.2d at 618-19. 

4

On appeal, petitioner raises other issues in addition to the amended recidivist information. 

Upon our review of petitioner’s Rule 35(a) motion, we concur with the circuit court’s finding that 

the amended recidivist information was the motion’s “sole basis” and decline to address issues not 

presented to the circuit court. See Syl. Pt. 2, Sands v. Sec. Trust Co., 143 W.Va. 522, 102 S.E.2d 

733 (1958) (holding that “[t]his Court will not pass on a non[-]jurisdictional question which has 

not been decided by the trial court in the first instance”). 

3