State of West Virginia v. James S. ( 2013 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia, Plaintiff Below,
Respondent FILED
October 21, 2013
RORY L. PERRY II, CLERK
vs) No. 13-0301 (Marion County 88-F-81) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
James S., Defendant Below,
Petitioner
MEMORANDUM DECISION
Petitioner James S. appeals, pro se, the Circuit Court of Marion County’s March 28, 2013
order denying his motion for correction of sentence.1 The State, by counsel Scott E. Johnson, filed
a response. Petitioner filed a reply and a supplemental appendix. On appeal, petitioner alleges that
the circuit court erred in denying his motion for correction of sentence without appointing counsel
or holding a hearing on the same.
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 February of 1987, petitioner was arrested under Marion County indictment number 87-
F-12 charging him with incest and held in jail for two weeks, at which time the indictment nolle
prosequed. Thereafter, petitioner was indicted under Marion County case number 87-F-40. In
February of 1988, petitioner was convicted of incest in case number 87-F-40. However, this Court
reversed that conviction in State v. James Edward S., 184 W.Va. 408, 400 S.E.2d 843 (1990), and
the charges against petitioner were dismissed. Around that same time, petitioner was again
indicted and arrested under Marion County case number 88-F-81. This indictment charged
petitioner with multiple counts of sexual crimes against a different daughter than the victim of
incest in Marion County case number 87-F-40.
Following a jury trial, petitioner was convicted of one count of first degree sexual assault,
one count of second degree sexual assault, and one count of incest in Marion County case number
88-F-81. Petitioner was thereafter sentenced to an aggregate sentence of thirty to fifty-five years
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In keeping with this Court’s policy of protecting the identity of minors and victims of
sexual offenses, petitioner will be referred to by his last initial throughout this memorandum
decision.
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of incarceration, with credit for 330 days of time served. Importantly, the Marion County cases in
which petitioner was convicted concerned separate victims and allegations, and were in no way
related.
In February of 2013, petitioner filed a motion for correction of sentence seeking to have
credit for time served on the charges in case numbers 87-F-12 and 87-F-40 applied to his sentence
in case number 88-F-81. Without appointing counsel or holding a hearing on the motion, the
circuit court dismissed the same by order entered on March 28, 2013.
Upon our review, the Court finds no error in regard to the circuit court denying
petitioner’s motion for judgment of acquittal without appointing counsel or holding a hearing. We
have previously held that
“[i]n 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, Barritt v. Painter, 215 W.Va. 120, 595 S.E.2d 62 (2004). The record shows that the
circuit court did not abuse its discretion in denying petitioner’s motion for correction of sentence
because petitioner sought to have credit for time served on unrelated charges applied to his
current sentence.
This Court has previously held that criminal defendants are not entitled to credit for time
served in similar situations. See State v. Wears, 222 W.Va. 439, 665 S.E.2d 273 (2008) (denying a
defendant’s request for credit for time served between the State’s voluntary dismissal of an
indictment and the defendant’s reindictment because he remained in custody serving time on
unrelated charges). Simply put, petitioner is not entitled to have time served credit applied to his
current sentence for time spent in custody on unrelated charges. Further, it is clear that the circuit
court could decide this legal issue without appointment of counsel or the holding of a hearing on
petitioner’s motion, and petitioner cites to no authority requiring either. As such, the Court finds
no error in the circuit court denying petitioner’s motion without first appointing counsel or
holding a hearing on the same.
For the foregoing reasons, the circuit court’s March 28, 2013 order denying petitioner’s
motion for correction of sentence is hereby affirmed.
Affirmed.
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ISSUED: October 21, 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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