State of West Virginia v. Antwyn D. Gibbs ( 2018 )


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  •                                               STATE OF WEST VIRGINIA
    SUPREME COURT OF APPEALS
    State of West Virginia,
    Plaintiff Below, Respondent                                                        FILED
    October 12, 2018
    vs.) No. 17-0854 (Fayette County 15-F-64)                                      EDYTHE NASH GAISER, CLERK
    SUPREME COURT OF APPEALS
    OF WEST VIRGINIA
    Antwyn D. Gibbs,
    Defendant Below, Petitioner
    MEMORANDUM DECISION
    Petitioner Antwyn D. Gibbs, pro se, appeals the Circuit Court of Fayette County’s
    September 1, 2017, order denying his Rule 35(b) motion for reduction of sentence. The State, by
    counsel Shannon Frederick Kiser, filed a response. Petitioner filed a reply. On appeal, petitioner
    argues that the circuit court erred in denying his motion for reduction of sentence without
    making sufficient findings of fact or conclusions of law, without considering “facts” or
    petitioner’s accomplishments, and without holding a hearing on the motion.1
    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, this 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.
    Following a jury trial in September of 2015, petitioner was convicted of first-degree
    robbery, entry of a dwelling, and conspiracy to commit a felony. The circuit court sentenced
    petitioner to consecutive terms of incarceration of one to five years for his conspiracy conviction,
    which was enhanced to two to five years following a recidivist conviction; one to ten years for
    entry of a dwelling; and fifty years for first-degree robbery. We affirmed petitioner’s convictions
    and sentences in State v. Gibbs, 238 W.Va. 646, 
    797 S.E.2d 623
    (2017).
    Petitioner, by counsel, filed a motion for reduction of his sentence pursuant to Rule 35(b)
    of the West Virginia Rules of Criminal Procedure on August 4, 2017.2 Petitioner argued that two
    1
    Petitioner also argues that he “should have been appointed an attorney to perfect the
    Rule 35(b) Motion for Reduction of Sentence.” Petitioner’s Rule 35(b) motion was filed by
    counsel. Because petitioner had counsel below, we decline to address this contrary assertion.
    2
    Rule 35(b) of the West Virginia Rules of Criminal Procedure provides that
    (continued . . . )
    1
    of his four codefendants, who pled guilty prior to trial, received shorter sentences than petitioner.
    However, petitioner acknowledged that these two codefendants pled guilty to first-degree
    robbery only, whereas petitioner was convicted of three crimes.
    On September 1, 2017, the circuit court denied petitioner’s motion for reduction of his
    sentence. The court found that the previously imposed sentences were an appropriate disposition
    given the presentence investigation report, petitioner’s statements at sentencing, and the entire
    court file. Petitioner filed an appeal from this September 1, 2017, order and a motion for
    appointment of appellate counsel. By scheduling order entered on October 19, 2017, we deferred
    ruling on the motion for appointment of appellate counsel, which we now consider with the
    merits of petitioner’s appeal.
    Petitioner advances three arguments on appeal. First, petitioner argues that the circuit
    court erred in denying his motion for reduction of sentence without making findings of fact or
    conclusions of law sufficient to enable meaningful appellate review. Second, the circuit court
    erred in failing to consider “facts” or petitioner’s accomplishments. Finally, the circuit court
    erred in not holding a hearing on his motion.
    We have previously established the following standard of review regarding orders that
    deny Rule 35 motions:
    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).
    Petitioner argues that the circuit court’s denial of his motion for reduction of sentence
    “was basically an insignificant half[-]page [order]” that did not include the requisite findings of
    fact and conclusions of law, contained no citations to case law, and evidenced no “careful
    thought, deliberation[,] or any factors in forming the judgment[.]” Not only does petitioner fail to
    cite any law mandating that orders contain citations to case law or that they be a certain length,
    but he also fails to acknowledge that the circuit court, in fact, provided a basis for denying his
    [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.
    2
    motion. Namely, petitioner’s presentence investigation report, his statements at sentencing, as
    well as the entire record of proceedings in this case compelled the circuit court’s conclusion that
    petitioner’s sentences were appropriate. Petitioner fails to demonstrate that such consideration
    and ultimate conclusion were an abuse of the court’s discretion in ruling on Rule 35(b) motions.
    Next, petitioner contends that the circuit court erred in denying his motion “without
    considering any facts and accomplishments.” Petitioner, though, failed to outline any such
    particular “facts” or “accomplishments” in his Rule 35(b) motion. Petitioner acknowledges as
    much in his brief on appeal, but explains that the failure to lay out his “accomplishments” was
    due to the fact that he was not appointed counsel. However, this assertion concerning counsel is
    not supported by the record. Further, because “nonjurisdictional questions not raised at the
    circuit court level will not be considered [for] the first time on appeal[,]” State v. Jessie, 225
    W.Va. 21, 27, 
    689 S.E.2d 21
    , 27 (2009), we decline to address this assignment of error
    concerning petitioner’s alleged “accomplishments.”
    We also find that the circuit court did not err in ruling on petitioner’s motion without
    holding a hearing. We have previously upheld the propriety of ruling on Rule 35(b) motions
    without a hearing. See State v. King, 205 W.Va. 422, 425, 
    518 S.E.2d 663
    , 666 (1999) (finding
    that the circuit court did not abuse its discretion by not holding a hearing on the appellant’s Rule
    35(b) motion). Petitioner, therefore, is not entitled to relief on this ground. Finally, given that the
    circuit court properly denied petitioner’s Rule 35(b) motion, we deny his motion for appointment
    of appellate counsel.
    For the foregoing reasons, the circuit court’s September 1, 2017, order denying
    petitioner’s Rule 35(b) motion is hereby affirmed.
    Affirmed.
    ISSUED: October 12, 2018
    CONCURRED IN BY:
    Chief Justice Margaret L. Workman
    Justice Elizabeth D. Walker
    Justice Paul T. Farrell sitting by temporary assignment
    Justice Tim Armstead
    Justice Evan H. Jenkins
    Justice Allen H. Loughry II, suspended and therefore not participating
    3
    

Document Info

Docket Number: 17-0854

Filed Date: 10/12/2018

Precedential Status: Precedential

Modified Date: 10/12/2018