State of West Virginia v. Alvin Chambers ( 2021 )

FILED
August 27, 2021
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
State of West Virginia,
Plaintiff Below, Respondent
vs.) No. 20-0787 (Webster County CC-51-2005-F-12)
Alvin Chambers,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Alvin Chambers, by counsel Andrew B. Chattin, appeals the Circuit Court of
Webster County’s August 18, 2020, order denying his motion for reconsideration of sentence
pursuant to West Virginia Rule of Criminal Procedure 35(b). The State, by counsel Karen C.
Villanueva-Matkovich, filed a response. On appeal, petitioner argues that the circuit court erred in
failing to consider the merits of his motion.
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 February of 2005, the grand jury indicted petitioner on two counts of third-degree sexual
assault and two counts of sexual abuse by a parent, guardian, custodian, or person in a position of
trust. Following a jury trial in July of 2005, petitioner was convicted of all four counts. In
September of 2005, the circuit court sentenced petitioner to an aggregate term of no less than
twenty years nor more than forty years of incarceration for his convictions. The circuit court denied
all motions for alternative sentencing. Petitioner appealed his conviction, which was refused by
this Court on July 10, 2006.
Approximately fifteen years after his sentencing, on August 13, 2020, petitioner, a self-
represented litigant, filed a motion to reconsider his sentence pursuant to Rule 35(b). In the motion,
petitioner requested the appointment of a lawyer, listed other convicted sexual offenders who were
granted probation, and stated that his elderly mother was ill and needed his care. Finding that it
lacked jurisdiction to consider petitioner’s Rule 35(b) motion given that it was untimely filed, the
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circuit court denied the motion by order entered on August 18, 2020. It is from this order that
petitioner appeals.
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).
Syl. Pt. 1, State v. Marcum, 238 W. Va. 26, 792 S.E.2d 37 (2016).
Petitioner argues on appeal that the circuit court erred in denying his motion and cites our
holding in Head, which provides that the court “may consider matters beyond the filing period
when such consideration serves the ends of justice.” Head, 198 W. Va. at 299, 480 S.E.2d at 508,Syl. Pt. 5, in part. Further, petitioner assigns as error the court’s failure to substantively rule on the
merits of his motion and argues that because he has been incarcerated a substantial number of years
“justice requires that the court consider his motion as well as [grant] the relief requested.” Finally,
petitioner, while conceding that he was sentenced within the statutory limits, argues that failing to
sentence him to home incarceration or probation was disproportionate and “unduly harsh” for the
crimes he committed.
Rule 35(b) 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 . . . dismissing or rejecting a petition for appeal of a judgment of a
conviction or probation revocation.
In Syllabus Point 2 of State ex rel. State v. Sims, 239 W. Va. 764, 806 S.E.2d 420 (2017), we made
clear that “[a] circuit court does not have jurisdiction to rule upon the merits of a motion for
reduction of a sentence under Rule 35(b) of the West Virginia Rules of Criminal Procedure when
the motion is filed outside the 120-day filing period set out under that rule.” Accordingly, because
petitioner’s Rule 35(b) motion was filed well beyond the period for such motions, the circuit court
did not err in concluding that it lacked jurisdiction to consider it.
We also note that petitioner’s reliance on Head is misplaced. In Head, we directed that,
[w]hen considering West Virginia Rules of Criminal Procedure 35(b)
motions, circuit courts generally should consider only those events that occur
within the 120-day filing period; however, as long as the circuit court does not usurp
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the role of the parole board, it may consider matters beyond the filing period when
such consideration serves the ends of justice.
Head, 198 W. Va. at 299, 480 S.E.2d at 508, Syl. Pt. 5. This point of law speaks not to the circuit
court’s jurisdiction over a Rule 35(b) motion in the first instance, but rather to the circumstances
that it may consider in ruling upon the motion after jurisdiction has been properly conferred with
the filing of a timely motion. Head, therefore, provides no support for petitioner because the circuit
court lacked jurisdiction to consider his motion as a preliminary matter.
Finally, regarding petitioner’s proportionality argument, the issues that may be raised in an
appeal from a Rule 35(b) order are limited. “Rule 35(b) of the West Virginia Rules of Criminal
Procedure only authorizes a reduction in sentence. Rule 35(b) is not a mechanism by which
defendants may challenge their convictions and/or the validity of their sentencing.” Syl. Pt. 2, State
v. Marcum, 238 W. Va. 26, 792 S.E.2d 37. The Marcum Court elaborated,
it is abundantly clear that Rule 35(b) cannot be used as a vehicle to challenge a
conviction or the validity of the sentence imposed by the circuit court, whether
raised in the Rule 35(b) motion or in the appeal of the denial of the Rule 35(b)
motion. In other words, challenges to convictions or the validity of sentences should
be made through a timely, direct criminal appeal before this Court will have
jurisdiction to consider the matter. See Syl. Pt. 2, State ex rel. Davis v. Boles, 151
W. Va. 221, 151 S.E.2d 110 (1966) (“An appellate court is without jurisdiction to
entertain an appeal after the statutory appeal period has expired.”).
Marcum, 238 W. Va. at 31, 792 S.E.2d at 42 (footnotes omitted). In arguing that his sentence was
disproportionate or unduly harsh, petitioner challenges the validity of his sentence and alleges
errors beyond the scope of the circuit court’s ruling on his Rule 35(b) motion. Accordingly, we
will not address this argument on appeal.
For the foregoing reasons, the circuit court’s August 18, 2020, order denying petitioner’s
Rule 35(b) motion is hereby affirmed.
Affirmed.
ISSUED: August 27, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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