1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia, Plaintiff Below, Respondent

vs) No. 17-0988 (Mingo County S14-F-136)

Ashley M., Defendant Below, Petitioner



### MEMORANDUM DECISION

Petitioner Ashley M., by counsel Robert H. Carlton, appeals the October 5, 2017, order of

the Circuit Court of Mi ngo County denying her Rule 35(b) moti on requesting a reduction of her sentence in the form of probation. 1 Respondent the State of West Virginia (“the State”), by counsel Gordon L. Mowen II, filed its response.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21

of the Rules of A ppellate Procedure.

Petitioner was charged by information with child neglect causing se rious bodily injury, a felony, pursuant to West Virginia Code § 61-8D-4 (b). The parties reached a plea agreement, under which petitioner would plead guilty to the cr ime as charged in the information and would

be sentenced to an indeterminate term of not less than one nor more than ten years and/or a fine of not less than $1,000 nor more than $5,000. The agr eement provided that if petitioner requested alternative sentencing pursuant to the West Virg inia Youthful Offender Act, the State would recommend that the sentence be suspended and th at petitioner be grante d alternative sentencing of confinement at the Anthony Co rrectional Center for not less th an six months nor more than

two years.

1 In keeping with our traditional treatme nt of cases involving sensitive facts, parties will be identified by using the first initial of last names rather than full

surnames. See e.g., In re Abbigail Faye B., 222 W.Va. 466, 470 n. 1, 665 S.E.2d 300, 304 n. 1 (2008); West Virginia Dept. of Human Services v. La Rea Ann
C.L., 175 W.Va. 330, 332 S.E.2d 632 (1985).

In re Cecil T. , 228 W. Va. 89, 91 n. 1, 717 S.E.2d 873, 875 n. 1 (2011). 

### FILED
October 10, 2018

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 On November 18, 2014, the circuit cour t conducted a plea hearing, during which petitioner pled guilty to child ne glect resulting in serious bodily injury. In its December 5, 2014, plea and sentencing order, the circuit court ordere d that petitioner be incarcerated for a term of one year and that she receive credit for sixty- one days served. However, it granted petitioner’s request for alternative sentencing and ordered th at the sentence of incarceration be suspended pursuant to the West Virginia Youthful Offender Ac t. The circuit court orde red that petitioner be transported to the Anthony Correctional Center for an indefinite term of not less than six months nor more than two years. Once she was discharged from the Anthony Center, petitioner was to be transported to the Southwestern Regional Jail to aw ait further order of the court. The circuit court then adjudged petitioner to be an abusive parent within the meaning of West Virginia Code § 49- 6-1 as to the child victim and any child that resides in the same household as the victim. 2
Therefore, she was ordered to register as an ab usive parent. She was further ordered to serve ten years of supervised release upon the expiration of her sentence. 3

Petitioner was ejected from the Anthony Center for various institutional safety violations.

She admitted to twelve such violations. The circuit court conducted a sentencing hearing and entered a resentencing order on or about Sept ember 30, 2015. The circuit court ordered that petitioner be remanded to the Southwestern Regiona l Jail to serve her sent ence of one year. The circuit court entered a corrective resentencing order on October 15, 2015, providing that West Virginia Code § 61-8D-4(b) carried with it a se ntence of not less than one nor more than ten years. On November 20, 2015, petitioner filed a motion, pursuant to Rule 35(b) of the West Virginia Rules of Criminal Procedure, requesti ng a reduction of her sentence in the form of probation. The circuit court denied that moti on by order entered on October 5, 2017. In that order, the circuit court reiterat ed that petitioner’s original se ntence, as set forth in the plea agreement, was an indeterminate term of not less than one nor more than ten years and that the resentencing order “incorrectly” set forth petitioner’s sentence as one year. Petitioner appeals

from that order.

On appeal, petitioner sets fo rth five assignments of error. 4 However, the entirety of her argument focuses on not receiving credit for her time served at the Anthony Correctional Center

2 We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and recodified during the 2015 Regular Session of the West Virginia Legislature. The new enactment, West Virginia Code §§ 49-1-101 thr ough 49-7-304, has minor stylistic changes and became effective on May 20, 2015. In this memorandum decision, we apply the statutes as they existed during the pendency of the proceedings below. It is important to note, however, that the abuse and neglect statutes underwent minor stylis tic revisions and the a pplicable changes have no impact on the Court’s decision herein.

3 That order was entered without petitioner’s coun sel’s signature.

4 Petitioner frames her assignments of error as follows: (1) Whether petitioner should be immediately released from jail since the initial sentencing order, signed by the circuit judge, indicated alternate youthful offende r sentencing and a one-year senten ce in the regional jail; (2) Whether petitioner’s time served under alternativ e sentencing under the youthful offender statute (continued . . .)3 and she fails to set forth any argum ent related to some of those assignments of error. She admits that she was ejected from that facility for policy violations and a suicide threat but asserts that

she should have received credit for the a pproximately 195 days she was at the Anthony Correctional Center. She argues that because she was originally sentenced to one year in the regional jail but had served more than one year, including both the time spent incarcerated prior to her scheduled trial and her time spent in the Anthony Correctional Center, she should be released from jail.

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

Reduction of Sentence. A motion to reduce a sentence may be made, or the court may reduce a sentence without motion w ithin 120 days afte r 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 affirm ance 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 app eal of a judgment of a conviction or probation revocation. The court shall dete rmine the motion within a reasonable time. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduc tion of sentence under this subdivision.

In addressing that rule, this Court found that “Rul e 35(b) of the West Virginia Rules of Criminal Procedure only authorizes a reduction in sent ence. Rule 35(b) is not a mechanism by which defendants may challenge their conv ictions and/or the validity of their sentencing.” Syl. Pt. 2,

State v. Marcum , 238 W. Va. 26, 792 S.E.2d 37 (2016).

Significantly, petitioner’s Rule 35(b) motion f iled before the circuit court was based upon her request for a reduction of her sentence in the form of probation. It did not address the sentencing issue raised by petitioner on appeal. In addition, the corrective resentencing order, setting forth a sentence of not le ss than one year nor more than ten years, reflects the correct sentence set by statute and set forth in the plea agreement. On appeal, petitioner does not challenge the denial of her request to be placed on probation, instead setti ng forth assignments of

error that were not raised before the circuit c ourt. Ordinarily, this Court follows the general principle that it “will not pass on a nonjurisdic tional question which has not been decided by the

must be given as credit for time spent in the youthful offender sentencing programs against her minimum term of confinement as set by the sent encing court even though she had been ejected from the youthful offender program; (3) Whether the sentence of one year in the regional jail is enforceable by petitioner since the time for the changing of a sentence to the detriment of petitioner, in the sentencing order, has passed an d the time for appeal by th e State has passed; (4) Whether the judge sentenced petitioner to one y ear in the regional jail in open court; and (5) Whether the subsequent written order setting the pena lty and the sentence for petitioner is deemed to be controlling over ve rbal decisions and rulings at th e sentencing hearing after a year because the court ultimately speaks through its orders.4 trial court in the first instance.” Syl. Pt. 7, in part, State v. Garrett , 195 W. Va. 630, 466 S.E.2d 481 (1995).

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: October 10, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Paul T. Farrell sit ting by temporary assignment

Justice Evan H. Jenkins

Justice Tim Armstead, deeming himself disqua lified, did not partic ipate in this case.

Justice Allen H. Loughry II suspende d and therefore not participating.