State of West Virginia v. Kenneth Allen Marcum
238 W. Va. 26
| W. Va. | 2016Background
- Perry appeals a June 18, 2015 circuit court order denying his Rule 35(b) motion to reduce sentence.
- Pending plea: Perry pleaded guilty to Conspiracy to commit destruction of property and to Attempt (grand larceny), with Counts I and III dismissed; the State agreed to concurrent sentencing.
- Sentences imposed: one to five years for conspiracy and one to three years for attempt, run consecutively, with restitution of $478.
- Perry signed a plea agreement acknowledging the court could deviate from the State’s sentencing recommendation and that sentencing was solely within the court’s discretion.
- Rule 35(b) motion filed 50 days after sentencing; hearing held; court denied reduction, citing lack of post-sentencing basis and that Perry failed to participate in pre-sentence processes.
- Perry did not appeal directly; he argued the court should have granted concurrent sentencing or probation and that sentencing on felony conspiracy was improper given some testimony suggesting misdemeanor conduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope and jurisdiction of Rule 35(b) | Marcums argues Rule 35(b) can challenge convictions. | State contends Rule 35(b) only permits sentence reduction. | Rule 35(b) is limited to sentence reduction; cannot challenge convictions. |
| Whether the circuit court abused its discretion in denying Rule 35(b) relief | Marcums contends concurrent sentencing or probation warranted due to reasons raised at hearing. | State asserts discretion to impose consecutive sentences; no abuse shown. | No abuse; denial upheld; no post-sentencing events establishing basis for reduction. |
| Whether Perry’s felony conspiracy sentence was properly challenged under Rule 35(b) | Marcums argues sentencing on felony conspiracy should be reconsidered due to victim testimony suggesting misdemeanor conduct. | State notes Rule 35(b) relief cannot revisit convictions; cannot convert felony to misdemeanor via Rule 35(b). | Challenge to the felony conviction is not cognizable under Rule 35(b); not properly before the Court. |
Key Cases Cited
- State v. Head, 198 W.Va. 298 (1996) (three-pronged standard for Rule 35 review; abuse of discretion; clearly erroneous; de novo on law)
- State ex rel. Farmer v. McBride, 224 W.Va. 469 (2009) (concurrent sentencing discretion when multiple convictions)
- State v. Allen, 208 W.Va. 144 (1999) (precedent on consecutive vs. concurrent sentencing)
- State v. Leverette, 163 W.Va. 98 (1979) (concurrent sentencing admonition in multiple convictions)
- State v. Davis v. Boles, 151 W.Va. 221 (1966) (jurisdictional limits on post-judgment appeals)
- State v. Proctor, 227 W.Va. 352 (2011) (per curiam; noted as controlling authority on Rule 35(b) scope)