State of West Virginia v. Michael Kandis ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia, FILED
Plaintiff Below, Respondent September 4, 2020
EDYTHE NASH GAISER, CLERK
vs) No. 19-0381 (Ohio County 13-F-074) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Michael Kandis,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Michael Kandis, by counsel John M. Jurco, appeals the March 25, 2019, order
of the Circuit Court of Ohio County that denied his motion for modification of sentence following
his guilty plea to three counts of second-degree robbery for which he was ordered to serve
consecutive sentences of five to eighteen years in prison. The State of West Virginia, by counsel
Gordon L. Mowen, II, filed a summary response in support of the circuit court’s order. Petitioner
submitted a reply.
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 affirming the order of the circuit court is appropriate under Rule 21 of
the Rules of Appellate Procedure.
In May of 2013, petitioner was indicted on three counts of second-degree robbery, one
count of conspiracy to commit burglary, and one count of burglary. The indictment was the result
of crimes he allegedly committed on March 28, 2011, and over the course of several days in
November of 2012, which involved robbing three individuals and stealing thousands of dollars
from multiple businesses.
On September 25, 2013, petitioner entered into a plea agreement with the State in which
he pled guilty to three counts of second-degree robbery in exchange for the dismissal of the
conspiracy and burglary charges. The plea agreement expressly stated that petitioner “understands
that the penalty provided for . . . ‘Second Degree Robbery’ is confinement in the West Virginia
Penitentiary for not less than five (5) nor more than eighteen (18) years[,]” and further, that
petitioner “will be free to make any sentencing recommendation that he desires” and “understands
1
that the State . . . will make a non-binding recommendation to the Court that the court sentence
[him]” to consecutive sentences and restitution. It is undisputed that the circuit court engaged
petitioner in a thorough plea colloquy following which the court accepted petitioner’s guilty plea
and ordered the preparation of a pre-sentence investigation report.
During the sentencing hearing that was conducted on November 14, 2013, petitioner
admitted, “I’m most certainly guilty of my crimes. . . . I take fully responsibility.” Petitioner
apologized to the victims and his family and requested help for the “major drug addiction that I’m
still battling[.]” He also requested that the court run his sentences concurrently or, in the
alternative, order consecutive sentences but suspend the second and third prison terms. The State
presented the testimony of two victims. One victim testified about the psychological impact the
robbery had on her. She stated that she is “not comfortable at nighttime”; that “[b]lue hoodies send
me in panic attacks”; and that she “can’t even look at him right now without hyperventilating.”
The victim testified that petitioner threatened to kill her twice, and that petitioner’s crime “took
my sense of security away. . . . I can’t even walk down my street without looking over my shoulder
and be wondering.” In a written statement to the sentencing court, a second victim, who was an
employee of the pizza establishment that petitioner robbed, stated that petitioner’s actions “made
me feel unsafe about the community I put my entire trust in.” The State requested that the court
impose consecutive sentences. Additionally, the circuit court considered petitioner’s LS/CMI
evaluation, which indicated that petitioner “is at high risk to re-offend within one year.”
In its sentencing order entered on November 26, 2013, the circuit court ordered that
petitioner serve sentences of five to eighteen years in prison on each of the three counts of second-
degree robbery and that the sentences be served consecutively. The court also ordered that he make
restitution and pay the costs of the proceeding.
On March 14, 2014, petitioner filed a motion for modification of sentence under Rule 35(b)
of the West Virginia Rules of Criminal Procedure and a revised motion for modification on
December 13, 2018. In the interim, petitioner also filed two petitions for a writ of habeas corpus.
In both instances, the circuit court denied petitioner’s requests for habeas relief, which this Court
ultimately affirmed. See Kandis v. Ballard, No. 15-0431, 2016 WL 1549453 (W. Va. Apr. 15,
2016) (memorandum decision); Kandis v. Ames, No. 18-0118, 2019 WL 2499389 (W. Va. June
17, 2019) (memorandum decision).
By order entered on March 25, 2019, the circuit court denied petitioner’s Rule 35 motion
for modification of sentence. This appeal followed.
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). Further, “[s]entences imposed
by the trial court, if within statutory limits and if not based on some [im]permissible factor, are not
2
subject to appellate review.” Syl. Pt. 4, State v. Goodnight, 169 W. Va. 366, 287 S.E.2d 504 (1982).
See Syl. Pt. 1, in part, State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997) (“The Supreme Court
of Appeals reviews sentencing orders . . . under a deferential abuse of discretion standard, unless
the order violates statutory or constitutional commands.”).
The sole issue on appeal is whether the circuit court abused its discretion in denying
petitioner’s Rule 35(b) motion for modification of his sentence. Petitioner sets forth a plethora of
reasons that, he contends, should have been considered by the circuit court and that warrant a
modification of his sentence. Petitioner recounts that he took responsibility for his crimes and
spared the victims from testifying at trial by entering a guilty plea; that, while incarcerated, he has
earned numerous certificates relating to domestic violence, parenting, and anger management; that,
prior to the crimes at issue, he had not committed any serious infractions since 2008; that he has
suffered from drug addiction for many years and believes he should be granted supervised
probation so that he can receive drug treatment; that he has had an “overall satisfactory prison
record”; that he has completed academic and vocational courses while in prison; that he has a
support system in his parents, with whom he would live if granted probation; that he has two
children who he intends to help raise; and that he would be better able to pay the restitution that
was ordered by the court if he was released from prison. Finally, petitioner contends that he is
entitled to relief under Rule 35(b) based upon State v. Arbaugh, 215 W. Va. 132, 595 S.E.2d 289(2004).1
It is undisputed that petitioner’s sentence is within statutory limits. See Goodnight, 169 W.
Va. at 366, 287 S.E.2d at 505, syl. pt. 4. However, petitioner argues that the circuit court’s
sentencing order was based upon “impermissible reasons,” see id., in that it failed to apply the
Arbaugh analysis, which, petitioner contends, required the court to (1) consider mitigating factors
that may have led to his crimes (i.e., drug addiction), (2) consider petitioner’s own assessment that
he was at low risk of reoffending or likelihood of threat to the public, and (3) consider petitioner’s
“stated plans for rehabilitation and leading a law-abiding life.” We find no error. The circuit court
properly used its discretionary authority to impose the sentence it deemed appropriate given all of
the circumstances, including that petitioner admitted guilt and that his crimes adversely impacted
his victims. Furthermore, contrary to petitioner’s own self-serving assessment that he was unlikely
to re-offend, the circuit court observed that the court-ordered LS/CMI evaluation concluded that
petitioner “is at high risk to re-offend within one year.” We, thus, conclude that petitioner has
failed to show that the circuit court abused its discretion in imposing his sentence.
For the foregoing reasons, we affirm.
Affirmed.
1
In State v. Arbaugh, 215 W. Va. 132, 595 S.E.2d 289 (2004), this Court reversed a circuit
court’s denial of relief under Rule 35(b) where the defendant, a youthful offender who himself was
a victim of sexual abuse, pled guilty to sexually assaulting his half-brother. We remanded the case
with instructions to grant probation so as to allow the defendant to follow his proposed
rehabilitation plan and attend a sexual offender treatment program and drug and alcohol
counseling. Arbaugh, 215 W. Va. at 137, 595 S.E.2d at 294.
3
ISSUED: September 4, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
4