Opinion
No. 21-0490
11-04-2022
STATE of West Virginia, Plaintiff Below, Respondent, v. Emily J. KEEFER, Defendant Below, Petitioner.
Dylan K. Batten, Esq., Public Defender, Martinsburg, West Virginia, Attorney for the Petitioner. Patrick Morrisey, Esq., Attorney General, Andrea Nease Proper, Esq., Assistant Attorney General, Charleston, West Virginia, Attorneys for the Respondent.
Dylan K. Batten, Esq., Public Defender, Martinsburg, West Virginia, Attorney for the Petitioner.
Patrick Morrisey, Esq., Attorney General, Andrea Nease Proper, Esq., Assistant Attorney General, Charleston, West Virginia, Attorneys for the Respondent.
Bunn, Justice:
Petitioner, Emily J. Keefer ("Ms. Keefer"), appeals an order of the Circuit Court of Berkeley County, entered on May 19, 2021, denying her motion to reduce her sentence pursuant to Rule 35(b) of the West Virginia Rules of Criminal Procedure. Rule 35(b) provides, in relevant part, that "[a] motion to reduce a sentence may be made ... within 120 days after the sentence is imposed[.]" Ms. Keefer claims the circuit court erred by finding her motion was untimely when it was filed within 120 days of the circuit court's entry of its sentencing order. The circuit court calculated the 120-day period for Ms. Keefer's Rule 35(b) motion from the sentencing hearing, when the sentence was verbally pronounced, and concluded that her motion was filed outside that time frame. Upon review of the parties’ briefs, the record submitted on appeal, and the pertinent authorities, we agree with the circuit court and conclude that a sentence is "imposed" for purposes of Rule 35(b) when the sentence is verbally pronounced at a sentencing hearing. Therefore, we affirm the denial of Ms. Keefer's Rule 35(b) motion as untimely.
I.
FACTUAL AND PROCEDURAL HISTORY
Ms. Keefer was indicted by a Berkeley County Grand Jury in February 2020 for committing four felony offenses while she was employed as a corrections officer at the Eastern Regional Jail and Corrections Facility. In accordance with a plea agreement she entered with the State, Ms. Keefer agreed to plead guilty to one count of conspiracy to violate West Virginia Code § 61-5-8(g)(1), which prohibits possession of contraband in jail by an inmate, in violation of West Virginia Code § 61-10-31 ; and one count of accepting a bribe in violation of West Virginia Code § 61-5A-3. In turn, the State agreed to dismiss the remaining charges. Although the State retained the right to present certain evidence pertinent to sentencing, it agreed to make no recommendation regarding the sentence to be imposed. The circuit court accepted Ms. Keefer's guilty plea on November 10, 2020.
Ms. Keefer was indicted for one count of conspiracy to violate West Virginia Code § 61-5-8(g)(1), which prohibits possession of contraband in jail by an inmate, in violation of West Virginia Code § 61-10-31 ; one count of accepting a bribe in violation of West Virginia Code § 61-5A-3 ; one count of conspiracy to violate West Virginia Code § 60A-4-401(a)(ii), which prohibits possession with intent to deliver buprenorphine, in violation of West Virginia Code § 60A-4-414 ; and one count of transporting a controlled substance into jail in violation of West Virginia Code § 61-5-8(c)(1).
A sentencing hearing was held on January 12, 2021, during which Ms. Keefer requested home confinement or, in the alternative, concurrent sentences. The circuit court denied both requests and imposed consecutive sentences of not less than one nor more than five years for the conspiracy conviction, and not less than one nor more than ten years for the bribery conviction, for an aggregate term of not less than two nor more than fifteen years. The circuit court verbally pronounced the sentence during the hearing. Subsequently, the sentence was memorialized in a "Final Sentencing Order" entered on January 19, 2021. The written order expressly stated that Ms. Keefer's effective sentencing date was January 12, 2021.
On March 22, 2021, Ms. Keefer filed an initial motion to reduce her sentence pursuant to Rule 35(b) of the West Virginia Rules of Criminal Procedure. The circuit court denied the motion on the merits by order entered on March 25, 2021. Ms. Keefer filed a second Rule 35(b) motion to reduce her sentence on May 17, 2021. By order entered on May 19, 2021, the circuit court found Ms. Keefer's second motion was not timely as it was filed more than 120 days after the sentencing hearing held on January 12, 2021. The circuit court also held that had the motion been timely, it would still deny Ms. Keefer's motion on the merits.
This appeal followed, and Ms. Keefer raises the single question of whether the period of "120 days after the sentence is imposed," as set forth in Rule 35(b), is calculated from the sentencing hearing at which the circuit court verbally pronounces the sentence or from the date of the order memorializing the previously-announced sentence. Ms. Keefer does not request oral argument of this case, "given the nature of the issue at bar and given the fact that there does not appear to be a need for factual development." The State similarly opines that "oral argument is unnecessary because the facts and legal arguments are adequately presented in the briefs and the record in this case," and suggests the case "is appropriate for resolution by memorandum decision." See W. Va. R. App. P. 21(a) ("At any time after a case is mature for consideration, the ... Supreme Court may issue a memorandum decision addressing the merits of the case."). While we agree that oral argument is unnecessary, we find this case is not appropriate for resolution by memorandum decision due to the need to clarify the proper application of Rule 35(b). Accordingly, in these very limited circumstances involving a purely legal question addressing the proper application of a procedural rule of this Court, with adequately presented facts and waiver of oral argument by the parties, we exercise our discretion to issue a signed opinion without oral argument. See W. Va. R. App. P. 18(a) (acknowledging that oral argument is unnecessary when "(1) all of the parties have waived oral argument; or ... (4) the facts and legal arguments are adequately presented in the briefs and record on appeal, and the decisional process would not be significantly aided by oral argument.").
Once the triggering event is established, Rule 45(a) of the West Virginia Rules of Criminal Procedure governs computation of the time frame.
II.
STANDARD OF REVIEW
We generally apply a three-part test when reviewing a circuit court's decision on a Rule 35(b) motion for reduction of a sentence.
" ‘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)." Syllabus Point 1, State v. Collins , 238 W. Va. 123, 792 S.E.2d 622 (2016).
Syl. pt. 1, State v. Walker , 244 W. Va. 61, 851 S.E.2d 507 (2020). In this instance, the relevant facts are undisputed, and we are presented with a purely legal query involving the interpretation of a rule of procedure. "[O]ur review is plenary on ... issues ... pertaining to the interpretation of state statutes and court rules." State v. Davis , 236 W. Va. 550, 554, 782 S.E.2d 423, 427 (2015). See also Syl. pt. 1, Chrystal R.M. v. Charlie A.L. , 194 W. Va. 138, 459 S.E.2d 415 (1995) ("Where the issue on an appeal from the trial court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review."). Based on this authority, we review de novo the issue presented concerning the interpretation of Rule 35(b).
III.
DISCUSSION
Under the circuit court's interpretation of Rule 35(b), a sentence is imposed for purposes of the 120-day time frame when the defendant's sentence is verbally announced at the sentencing hearing. Ms. Keefer argues that this interpretation of Rule 35(b) is clearly erroneous. She contends that, because a circuit court speaks only through its orders, the 120-day time frame does not begin until the sentencing order is entered. See, e.g. , State ex rel. Erlewine v. Thompson , 156 W. Va. 714, 718, 207 S.E.2d 105, 107 (1973) ("A court of record speaks only through its orders[.]"). The State responds that, if the circuit court's application of the Rule 35(b) time frame was erroneous, such error was harmless given the circuit court's ruling that it would also deny the motion on the merits.
Ms. Keefer's reliance on the principle that a court of record speaks only through its orders is misplaced, because she takes that rule out of its proper context. Viewed correctly, this legal tenet is largely based on the role of an appellate court as a court of review that is limited to the record created below:
"It is essential that there has been a decision of an inferior court, since an appellate court is, on appeal, a court of review and
not a court of first instance, exercising jurisdiction only in reviewing the rulings of the trial court, and being limited to a review of the judgment, order, or decree of the court from which the appeal is taken."
Wells v. Roberts , 167 W. Va. 580, 586, 280 S.E.2d 266, 270 (1981) (quoting City of Huntington v. Chesapeake & Potomac Tel. Co. , 154 W. Va. 634, 639, 177 S.E.2d 591, 595 (1970), and declining to address an issue that was not raised in the lower court). The principle that a circuit court speaks through its orders has been applied in appeals where, for example, there is a conflict between the order being appealed and an oral statement by the lower court; a circuit court judge has filed an improper response to an appeal; an issue was not properly presented to and considered by a circuit court; good cause for a continuance was not established by a court order; and a party sought to compel a circuit court judge to testify regarding the manner in which an official proceeding had been conducted. Likewise, a stipulation or other non-record evidence may not be used to contradict an order on appeal. See State ex rel. Mynes v. Kessel , 152 W. Va. 37, 52, 158 S.E.2d 896, 906 (1968) (finding that, absent fraud, mistake, or conflicts appearing in the record, a stipulation cannot "be entertained or considered by this Court to contradict the provisions of the orders. This Court has held in numerous cases that courts of record can speak only by their record and what does not so appear does not exist in law.").
See also Taylor v. W. Va. Dep't of Health & Hum. Res. , 237 W. Va. 549, 558, 788 S.E.2d 295, 304 (2016) ("We caution circuit courts, however, that the burden of issuing an order which meets this Court's requirements, which requirements are designed to permit meaningful appellate review, ultimately remains on the circuit court. It is incumbent on the trial court to determine if the submitted order accurately reflects the court ruling given that it is well-established that ‘[a] court of record speaks only through its orders [.]’ State ex rel. Erlewine v. Thompson , 156 W. Va. 714, 718, 207 S.E.2d 105, 107 (1973)."). We similarly have commented that
[t]he importance of the careful compilation and maintenance of complete and accurate records to our judicial system and appellate process can scarcely be overemphasized. "A court of record speaks only through its orders[.]" State ex rel. Erlewine v. Thompson , 156 W. Va. 714, 718, 207 S.E.2d 105, 107 (1973) (citations omitted). Furthermore, "[c]ourts of record can speak only by their records, and what does not so appear does not exist in law." Syllabus Point 3, Hudgins v. Crowder and Freeman, Inc. , 156 W. Va. 111, 191 S.E.2d 443 (1972).
State ex rel. Core v. Merrifield , 202 W. Va. 100, 116, 502 S.E.2d 197, 213 (1998) (per curiam). See also Certegy Check Servs., Inc. v. Fuller , 241 W. Va. 701, 705, 828 S.E.2d 89, 93 (2019) ("A circuit court speaks through its written orders, which, as a rule, must contain the requisite findings of fact and conclusions of law to permit meaningful appellate review." (quotations and citation omitted)).
In re A.C. , No. 20-0441, 2020 WL 7259202, at *6 (W. Va. Dec. 10, 2020) (memorandum decision) (observing that " ‘where a circuit court's written order conflicts with its oral statement, the written order controls.’ " (quoting Tennant v. Marion Health Care Found., Inc. , 194 W. Va. 97, 107 n.5, 459 S.E.2d 374, 384 n.5 (1995) )).
In re I.S.A. , 244 W. Va. 162, 165 n.7, 852 S.E.2d 229, 232 n.7 (2020) (declining to consider on appeal a responsive pleading from the presiding circuit court judge).
Stephens v. W. Va. Coll. of Grad. Stud. , 203 W. Va. 81, 88, 506 S.E.2d 336, 343 (1998) (per curiam) (relying, in part, on principle that a court of record speaks only through its orders in declining to address issue not raised in circuit court).
Powers v. Trent , 129 W. Va. 427, 427, 40 S.E.2d 837, 837 (1946) (holding, at Syllabus point 2, that "[c]ourts of record can speak only by their record and what does not so appear does not exist in law," and declining to find on appeal that good cause for continuance existed where no good cause was reflected in the appellate record).
State ex rel. Kaufman v. Zakaib , 207 W. Va. 662, 671, 535 S.E.2d 727, 736 (2000) ("The prohibition against compelling the testimony of a judge is reflected in a longstanding principle of our jurisprudence, namely, that a court speaks only through its orders.").
Outside the context of appellate review, we have found in certain circumstances that "[g]enerally, an order is effective when a court announces it." Syl. pt. 1, Moats v. Preston Cnty. Comm'n , 206 W. Va. 8, 521 S.E.2d 180 (1999). Moats addressed whether the county commission was "immune from suit and liability for damages ... under the West Virginia Governmental Tort Claims and Insurance Reform Act ... by reason of enforcing and executing [an] order of the mental hygiene commissioner" when the Sheriff executing the order did not have possession of a written order. Id. at 12, 521 S.E.2d at 184. The Court found there was immunity and held that "[a]n oral order has the same force, effect, and validity in the law as a written order. In other words, the actual physical possession of a written order is not required to effectuate said order." Syl. pt. 2, id.
We have similarly recognized that " ‘[o]ne may be charged with contempt for violating a court's order, of which he has actual knowledge, notwithstanding that at the time of the violation the order had not yet been formally drawn up.’ Syllabus Point 2, Hendershot v. Handlan , 162 W. Va. 175, 248 S.E.2d 273 (1978)." Syl. pt. 3, State ex rel. Walker v. Giardina , 170 W. Va. 483, 294 S.E.2d 900 (1982). See also Syl. pt. 2, in part, State v. Farmer , 173 W. Va. 285, 315 S.E.2d 392 (1983) ("[A] police officer may always make a warrantless arrest for a felony committed in his presence or when there is an outstanding warrant for the individual arrested, although the warrant may not be in the possession of the arresting officer."). Based on this Court's precedent, the principle that a court of record speaks only through its orders does not apply as broadly as Ms. Keefer argues, and we find the rule has no application in determining the proper interpretation of Rule 35(b). Having disposed of Ms. Keefer's theory, we now analyze Rule 35(b).
The 120-day period set out in Rule 35(b) is jurisdictional: "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." Syl. pt. 2, State ex rel. State v. Sims , 239 W. Va. 764, 806 S.E.2d 420 (2017). Furthermore, " Rule 45(b)(2) [of the West Virginia Rules of Criminal Procedure] prohibits enlargement of that time period." Id. at 771, 806 S.E.2d at 427. However, we have not definitively identified when the 120-day period is triggered. According to Rule 35(b),
[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. The court shall determine the motion within a reasonable time. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision.
W. Va. R. Crim. P. 35(b) (emphasis added). Given the forgoing language, to resolve Ms. Keefer's appeal we must determine when a "sentence is imposed" for purposes of Rule 35(b).
Several federal courts addressing when a sentence is imposed in contexts other than federal Rule 35(b) have determined that a sentence is imposed when it is orally pronounced. See, e.g. , United States v. Montoya , 48 F.4th 1028, 1034 (9th Cir. 2022) (explaining that "[t]he imposition of a sentence occurs at the sentencing hearing, so the district court must orally pronounce a sentence"); United States v. Nix , No. 6:14-CR-06181 EAW, 2022 WL 1746775, at *3 (W.D.N.Y. May 31, 2022) (observing that, for purposes of § 403(b) of the federal First Step Act of 2018, " ‘a sentence is "imposed" when the district court orally pronounces it’ " (quoting United States v. Eldridge , 2 F.4th 27, 40 (2d Cir. 2021) )); United States v. Pettaway , No. 4:06 CR 98, 2021 WL 5566158, at *11 (E.D. Va. Nov. 29, 2021) (recognizing that "the Fourth Circuit has interpreted the plain language of § 401(c) and § 403(b) [of the First Step Act] ... as being ‘triggered’ as soon as a district court orally imposes a sentence, rejecting claims by defendants that a sentence is not ‘imposed’ until it has been reviewed on appeal and finalized"); Young v. United States , 943 F.3d 460, 463 (D.C. Cir. 2019) (acknowledging that, "[i]n standard usage, ... a sentence is ‘imposed’ when the district court passes sentence on a defendant"); United States v. Davis , 924 F.3d 899, 905 n.4 (6th Cir. 2019) (commenting "we have strongly implied that a sentence is imposed when it is orally pronounced"). Additionally, we commonly look to corresponding federal rules for guidance in interpreting our own procedural rules:
"when codified procedural rules ... of West Virginia are patterned after the corresponding federal rules, federal decisions interpreting those rules are persuasive guides in the interpretation of our rules."
State v. Kaufman , 227 W. Va. 537, 553 n.33, 711 S.E.2d 607, 623 n.33 (2011) (citations omitted). In other words,
[a]lthough we are not bound by the interpretation federal courts placed on a former version of its Rule 35(b), we find the decisions of those courts persuasive on the question of jurisdiction. See State v. Sutphin , 195 W. Va. 551, 563, 466 S.E.2d 402, 414 (1995) ("[W]e have repeatedly recognized that when codified procedural rules ... of West Virginia are patterned after the corresponding federal rules, federal decisions interpreting those rules are persuasive guides in the interpretation of our rules." (citations omitted)).
Sims , 239 W. Va. at 772-73, 806 S.E.2d at 428-29 (footnote omitted). But see id. at 772-73 n.22, 806 S.E.2d at 428-29 n.22 (noting that this Court has previously declined to follow the interpretation federal courts have given to a "reasonable period" under an earlier version of federal Rule 35(b) ).
We are persuaded by the interpretation a federal court has given to the phrase "sentence is imposed" under a prior version of federal Rule 35(b) that is similar to our own rule. See United States v. DeVito , 99 F.R.D. 113 (D. Conn. 1983). The DeVito court concluded that a sentence is "imposed" under Rule 35(b) when it is orally pronounced and explained that
The version of federal Rule 35(b) at issue in DeVito , provided as follows:
(b) Reduction of Sentence. The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction. The court may also reduce a sentence upon revocation of probation as provided by law. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision.
99 F.R.D. at 114 n.1 (quoting Fed. R. Crim. P. 35(b) (1979 amended version)).
the imposition of sentence for Rule 35 purposes occurs at the oral pronouncement of sentence rather than upon the filing of the judgment and commitment order. See Lam Man Chung v. United States , 419 F. Supp. 1287, 1288-89 (S.D.N.Y. 1976). To hold otherwise would be to conclude that the sentence, although pronounced in court, is only actually imposed on the defendant by the subsequent filing of "mere evidence" of the only legally cognizable sentence. Moreover, Rule 43, Fed. R. Crim. P., provides further support for the view that under Rule 35 a sentence is imposed when orally pronounced in court in the presence of the defendant rather than upon the filing of the judgment and commitment order. Rule 43(a) provides that "the defendant shall be present ... at the imposition of sentence, except as otherwise provided by this rule" (emphasis supplied). Generally, the defendant must be and is present in court when a judge orally pronounces a sentence. Also, generally, the defendant is not and would not be present when the judgment and commitment is filed. Therefore[,] the imposition of sentence envisioned in Rule 43 must be the judge's oral pronouncement of the sentence in court and not the filing of the judgment and commitment order. See Lam Man Chung, supra , at 1288-89. The Court thus finds that the same moment of imposition that is contemplated in Rule 43 is referred to in Rule 35 in the phrase, "after the sentence is imposed."
Id. at 115-16 (footnote omitted). Notably, Rule 43(a) of the West Virginia Rules of Criminal Procedure likewise mandates "[t]he defendant shall be present ... at the imposition of sentence, except as otherwise provided by this rule." See also Syl. pt. 5, in part, State v. Byers , ––– W. Va. ––––, 875 S.E.2d 306 (2022) ("A defendant has a due process right to be present at the imposition of sentence pursuant to Rule 43(a) of the West Virginia Rules of Criminal Procedure, West Virginia Code § 62-3-2 (1923), and both Article III, Section 10 of the West Virginia Constitution and the Fifth Amendment of the United States Constitution."). As the DeVito court pointed out, a defendant is not likely to be present when a sentencing order is entered, thus Rule 43(a) must envision "the imposition of sentence" to be the pronouncement of the sentence at the sentencing hearing. Reading Rule 35(b) in a manner consistent with Rule 43(a), the phrase "sentence is imposed" necessarily also refers to the verbal announcement of the sentence at the sentencing hearing.
The current amended version of Rule 35 of the Federal Rules of Criminal Procedure clarifies that "[a]s used in this rule, ‘sentencing’ means the oral announcement of the sentence." F. R. Crim. P. 35(c).
In view of the foregoing authority and discussion, we now hold that a sentence is "imposed" for purposes of Rule 35(b) of the West Virginia Rules of Criminal Procedure when the sentence is verbally pronounced at the sentencing hearing. Accordingly, a motion to reduce a sentence under Rule 35(b) is timely when it is filed within 120 days after the sentence is pronounced at a sentencing hearing. Applying this holding to the facts of this case, we find no error in the circuit court's ruling that Ms. Keefer's second motion seeking to reduce her sentence was not timely because it was filed more than 120 days after her sentencing hearing.
IV.
CONCLUSION
For the reasons explained above, we affirm the May 19, 2021 order of the Circuit Court of Berkeley County, denying Ms. Keefer's Rule 35(b) motion for reduction of a sentence as untimely.
Affirmed.
JUSTICE WOOTON concurs in part, dissents in part, and reserves the right to file a separate opinion.
WOOTON, J., concurring, in part, and dissenting, in part:
(Filed November 9, 2022)
I concur in the majority's affirmance of the denial of petitioner's Rule 35(b) motion. Without the necessity of a new point of law, it is clear that petitioner's sentencing order states that her "sentencing date" was January 12, 2021. It is from that date that the Rule's 120-day time limitation began to run and therefore her motion was untimely. For that reason, it was both unnecessary and imprudent to issue a new point of law to dispose of this matter without the benefit of oral argument. Because Rule 35 is a court rule, clarifications or changes of the rules which threaten to have widespread effect are best undertaken through rule amendment after an appropriate period of public comment. At a minimum, the majority's new point of law should have expressly been made to operate prospectively only, lest countless defendants be unfairly disadvantaged. For these reasons, I respectfully dissent to the majority's new syllabus point.
The majority premises its decision to issue an opinion and new point of law without Rule 20 oral argument on the language of Rule 18(a) of the West Virginia Rules of Appellate Procedure, which provides that oral argument is unnecessary where 1) the parties have waived oral argument or 2) the issue is adequately presented in the briefs and record and the "decisional process" would not be aided by oral argument. However, neither of those are decidedly present here. Although the State did indicate in its brief that oral argument was unnecessary, it included the caveat that the case was "appropriate for resolution by memorandum decision." As is well-established, memorandum decisions carry no threat of a new point of law because it stands in contrast to "an opinion." See Rule 21(c) and (d) (providing that the memorandum decision must contain a "concise" statement of the reason for the decision and why it is suitable for "a memorandum decision instead of an opinion."). Therefore, the State relented on oral argument under its presumption that a memorandum decision that resolved this case largely on the merits of the underlying Rule 35(b) motion would issue.
As to the adequacy of the briefing, the majority's position that the 120-day limitation should run from the date the sentence is orally pronounced is essentially untested. Critically, in its brief, the State effectively conceded error on this issue. Rather than arguing in support of the circuit court's method of calculation—the method adopted by the majority in a new syllabus point—the State side-stepped the timeliness of the motion and argued that the circuit court's "error" was harmless because the motion itself was meritless. Presumably then, the State likewise believed that the calculation of the 120-day deadline should run from the entry of the sentencing order as posited by petitioner, contrary to the majority's new holding. See W. Va. R. App. P. 10(d) ("If the respondent's brief fails to respond to an assignment of error, the Court will assume that the respondent agrees with the petitioner's view of the issue."). Accordingly, the majority has adopted wholesale a position that was not advocated for by any party to the underlying case. As a result, this issue of first impression lacks any true adversarial testing—a problem that could have at least been mitigated through oral argument.
Placing this case on the Rule 20 argument docket may also have yielded amicus curiae briefing by interested parties, which would further inform the Court of the implications of any ruling.
And while there would have been nothing improper about the Court's undertaking of this issue of first impression upon oral argument, the matter was better addressed through rule amendment. Rarely does the Court have an opportunity to simply change that which is unclear; however, ambiguity in its own Rules can be easily clarified through rule amendment. See Bennett v. Warner , 179 W.Va. 742, 372 S.E.2d 920 (1988), superceded by statute on other grounds as stated in Miller v. Allman , 240 W. Va. 438, 813 S.E.2d 91 (2018) ("Under article eight, section three of our Constitution, the Supreme Court of Appeals shall have the power to promulgate rules for all of the courts of the State related to process, practice, and procedure, which shall have the force and effect of law."); Syl. Pt. 5, State v. Wallace , 205 W.Va. 155, 517 S.E.2d 20 (1999) ("The West Virginia Rules of Criminal Procedure are the paramount authority controlling criminal proceedings before the circuit courts of this jurisdiction; any statutory or common-law procedural rule that conflicts with these Rules is presumptively without force or effect."). In fact, this is precisely how the federal system resolved the issue.
Regarding the 2004 amendment of Federal Rule of Criminal Procedure 35 to clarify the phrase "imposition of sentence," the advisory committee note provides:
Originally, the language in Rule 35 had used the term "imposition of sentence." The term "imposition of sentence" was not defined in the rule and the courts addressing the meaning of the term were split. The majority view was that the term meant the oral announcement of the sentence and the minority view was that it meant the entry of the judgment. See United States v. Aguirre , 214 F.3d 1122, 1124-25 (9th Cir. 2000) (discussion of original Rule 35(c) and citing cases). During the restyling of all of the Criminal Rules in 2000 and 2001, the Committee determined that the uniform term "sentencing" throughout the entire rule was the more appropriate term. After further reflection, and with the recognition that some ambiguity may still be present in using the term "sentencing," the Committee believes that the better approach is to make clear in the rule itself that the term "sentencing" in Rule 35 means the oral announcement of the sentence. That is the meaning recognized in the majority of the cases addressing the issue.
Fed. R. Crim. P. 35 advisory committee's note to the 2004 amendment, in part.
The rule-making process allows all interested parties to comment during a public comment period and better informs the Court of the potential ramifications of any proposed changes. Certainly, the Court would benefit from practitioners and judges around the State enlightening it about the common practice and resulting implications of a potential change in how the Rule 35(b) 120-day deadline is calculated. As the Court has observed,
[t]he Judicial Reorganization Amendment, Article VIII, Section 3, of the Constitution, placed heavy responsibilities on this Court for administration of the state's entire court system. The mandate of the people, so expressed, commands the members of
the Court to be alert to the needs and requirements of the court system throughout the state.
State ex rel. Bagley v. Blankenship , 161 W.Va. 630, 644-45, 246 S.E.2d 99, 107 (1978) ; see also State v. Sheffield , ––– W. Va. ––––, –––– n.11, 875 S.E.2d 321, 331 n.11 (2022) (observing that significant changes to the West Virginia Rules of Criminal Procedure "cannot be made in the context of a judicial opinion; rather, it must occur through our normal rule-making process."). It is simply unnecessary to adopt this new reading of the Rule through an opinion, without oral argument or adversarial briefing, in order to implement this interpretation of the Rule or to affirm the result reached in the instant case.
The danger in approaching the issue in this manner is demonstrated by the underlying case itself. Under the majority's reasoning, petitioner is foreclosed from seeking a reduction in her sentence because of this Court's new interpretation of its own rule of criminal procedure. By applying its new syllabus point to petitioner, the majority has enacted a retroactive change to the law. However, the majority fails to analyze the propriety of a retroactive change to a non-constitutional rule of criminal procedure which definitively disadvantages defendants by shortening the period of time in which they may file Rule 35(b) motions. See Andrew I. Haddad, Cruel Timing: Retroactive Application of State Criminal Procedural Rules to Direct Appeals , 116 Colum. L. Rev. 1259, 1261 (2016) ("[C]ourts that use [a] case-specific [retroactivity] analysis almost never find a newly declared state rule of criminal procedure to be sufficiently important to the fact-finding process as to merit retroactive application to criminal cases on direct review." (footnotes omitted)).
This Court has held that, "a judicial decision in a criminal case is to be given prospective application only if: (a) It established a new principle of law; (b) its retroactive application would retard its operation; and (c) its retroactive application would produce inequitable results." Syl. Pt. 5, State v. Blake , 197 W.Va. 700, 478 S.E.2d 550 (1996). Because the majority failed to adopt its new syllabus point prospectively only, any defendant who relied on the date of his or her sentencing order, rather than the earlier hearing date, to dictate when a Rule 35(b) motion was due will now be procedurally barred from seeking a reduction of sentence under this case. This runs contrary to this Court's precedent in the treatment of changes to procedural rules. See Blake , 197 W. Va. at 713, 478 S.E.2d at 563 ("[B]ecause Neuman clarified applicable procedural law only, and not substantive or constitutional law, it should be given prospective application only."); State v. Byrd , 163 W. Va. 248, 253, 256 S.E.2d 323, 325 (1979), holding modified by State ex rel. Aaron v. King , 199 W. Va. 533, 485 S.E.2d 702 (1997) ("The subject matter of the rule not rising to a constitutional dimension such rule will be applied to this case and prospectively only.").
Perhaps more importantly, because this new ruling negatively affects defendants’ ability to seek relief from their penalties by potentially shortening their time frame for filing, its retroactivity raises potential ex post facto concerns. See U. S. Const. art. I, § 10, cl. 1 ; W. Va. Const. art. III, § 4 ; see also State v. R. H. , 166 W. Va. 280, 289, 273 S.E.2d 578, 584 (1980), overruled on other grounds by State ex rel. Cook v. Helms , 170 W. Va. 200, 292 S.E.2d 610 (1981) ("[P]rocedural changes can be ex post facto depending on their effect on the accused." (citing U. S. v. Henson , 486 F.2d 1292 (D. C. Cir. 1973) )). This Court has observed that
the ex post facto prohibition extends to any alteration, even one labeled procedural, "which in relation to the offense or its consequences , alters the situation of a party to his disadvantage." It has also been stated that no substantial right which the law gives an accused at the time of the commission of the offense to which his guilt relates can be taken away from him ex post facto, merely by calling it a law of procedure.
Id. at 289, 273 S.E.2d at 584 (emphasis added) (citations omitted).
The potential widespread impact of the majority's new rule and its failure to ameliorate that impact by making its new syllabus point prospective only compels me to dissent to the majority opinion. Although I agree that petitioner's Rule 35(b) motion was untimely because her sentencing date was clearly stated in the order, I believe it would have been more judicious to implement a clarification to Rule 35 through our rule-making process. Accordingly, I respectfully concur, in part, and dissent, in part.