State v. Head, No. 23404

CourtWest Virginia Supreme Court
Writing for the CourtRECHT; CLECKLEY
Citation198 W.Va. 298,480 S.E.2d 507
PartiesSTATE of West Virginia, Plaintiff Below, Appellee, v. Michael HEAD, Defendant Below, Appellant.
Decision Date14 November 1996
Docket NumberNo. 23404

Page 507

480 S.E.2d 507
198 W.Va. 298
STATE of West Virginia, Plaintiff Below, Appellee,
v.
Michael HEAD, Defendant Below, Appellant.
No. 23404.
Supreme Court of Appeals of West Virginia.
Submitted Sept. 24, 1996.
Decided Nov. 14, 1996.

Page 508

[198 W.Va. 299] Syllabus by the Court

1. 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.

2. Once a motion made under Rule 35(b) of the West Virginia Rules of Criminal Procedure is timely filed, the failure of a defendant to remind the trial court that the motion is pending does not constitute an abandonment of that motion.

3. Under Rule 35(b) of the West Virginia Rules of Criminal Procedure, the determination of what is a "reasonable period" for a court to rule on a sentence reduction motion, should be based on the facts of each case. This case-by-case analysis is consistent with the language of Rule 35(b).

4. When a trial court fails to act on a motion timely filed by a defendant under Rule 35(b) of the West Virginia Rules of Criminal Procedure by reason of an administrative error, any resultant delay cannot, as a matter of law, be an unreasonable delay barring Rule 35(b) relief.

5. When 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 the role of the parole board, it may consider matters beyond the filing period when such consideration serves the ends of justice.

Page 509

[198 W.Va. 300] William C. Forbes, Prosecuting Attorney for Kanawha County, Mary Beth Kershner, Assistant Prosecuting Attorney, Charleston, for appellee.

John H. Boothroyd, Assistant Public Defender, Charleston, for appellant.

RECHT, Justice: 1

Michael Head (appellant) appeals the denial of his motion for a reduction of sentence by the Circuit Court of Kanawha County. Although the appellant timely filed a motion for a reduction of his 60-year sentence for aggravated robbery under Rule 35(b) of the West Virginia Rules of Criminal Procedure, the circuit court failed to rule on the appellant's motion for over four years. Finally, prompted by the appellant's filing of an amended motion, the circuit court held a hearing but denied the motion, reasoning that the inordinate delay had resulted in a loss of jurisdiction by the circuit court. On appeal, the appellant argues that the circuit court has jurisdiction because the delay, although lengthy, does not, in this case, affect the policy reasons underlying the time limits of Rule 35(b). Because the jurisdiction conferred on the circuit court by the appellant's timely filed motion cannot be lost by the mere passage of time, we reverse the circuit court and remand this case for consideration of the motion on its merits.

I.

FACTS AND BACKGROUND

Michael Head was convicted of aggravated robbery on September 21, 1990 and sentenced to sixty (60) years in the West Virginia Penitentiary. The following factors were considered by the circuit court in sentencing the appellant: (1) The robbery victim was a retired sixty-six year old, injured World War II veteran; (2) The appellant had testified to a "ridiculous alibi;" (3) The appellant had a prior conviction for breaking and entering in 1983; (4) The appellant was twenty-nine years old; and (5) No firearm was used in committing the crime. 2 After this Court on July 2, 1991 refused the appellant's direct appeal, the appellant filed a motion on August 30, 1991 in circuit court under Rule 35(b) of the West Virginia Rules of Criminal Procedure for a reduction of his sentence. 3 It is undisputed that the appellant's August 30, 1991 motion was filed timely. 4 No hearing was held on the motion.

On June 16, 1994, the appellant, acting pro se, filed another motion for a reduction in his sentence. On August 2, 1995, the appellant amended his August 30, 1991 motion and on October 26, 1995, a hearing was held before Judge Ranson, who had been assigned the

Page 510

[198 W.Va. 301] case in 1994. 5 At the hearing, the appellant again noted the extraordinary length of his sentence and argued that because of that length, the parole board had not had the opportunity to consider his significant efforts at rehabilitation. By order entered on November 2, 1995, Judge Ranson denied the motion on the grounds that the appellant had abandoned his motion by failing to request action on his original timely filed Rule 35(b) motion, and that because of the passage of time "has become too great and unreasonable," the circuit court lost jurisdiction to hear the matter.

This appeal followed asserting: first, that once a defendant files timely a Rule 35(b) motion, his subsequent inaction does not constitute an abandonment of his motion; and second, because the delay in this case does not usurp the parole board's role, the mere passage of time does not result in a loss of jurisdiction in the circuit court. The appellant argues that delay, caused by administrative error, should not be considered "unreasonable" for the purposes of Rule 35(b).

II.

DISCUSSION

A. Standard of Review

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. See Syl. pt. 1, Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995)(applying a similar three-pronged standard of review to findings made by a family law master that are adopted by a circuit court); Syl. pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996) (applying a similar three-pronged standard of review in a civil action); Syl. pt. 1, Carter v. Carter, 196 W.Va. 239, 470 S.E.2d 193 (1996)(applying a similar three-pronged standard of review to a civil contempt order).

A motion made under Rule 35 (1996) of the West Virginia Rules of Criminal Procedure is directed to the sound discretion of the circuit court and, generally, is not reviewable absent an abuse of discretion. Our general standard of review of a Rule 35(b) motion is the same as that applied by the Fourth Circuit in U.S. v. Stumpf, 476 F.2d 945, 946 (4th Cir.1973), which held that a motion for reduction of sentence is addressed to the sound discretion of the district court and is not reviewable on appeal except for an abuse of discretion. See U.S. v. Lee, 648 F.2d 667, 668 n. 1 (9th Cir.1981); U.S. v. Niemiec, 689 F.2d 688, 692 (7th Cir.1982).

The abuse of discretion standard on Rule 35 motions continues the deference we have traditionally accorded trial courts in matters of sentencing. See Syl. pt. 12, State v. Broughton, 196 W.Va. 281, 470 S.E.2d 413 (1996) ("[s]entences imposed by the trial court, if within statutory limits and if not based on some ( [im]permissible factor, are not subject to appellate review"); Syl. pt. 9 State v. Hays, 185 W.Va. 664, 408 S.E.2d 614 (1991); Syl. pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).

However, in this case, the circuit court did not address the merits of the appellant's Rule 35 motion, but rather found as a matter of law that he had abandoned his motion by failing "to request or obtain an expeditious ruling" and that the passage of time resulted in a loss of jurisdiction. Because the circuit court's ruling involves an interpretation as to whether Rule 35(b) imposes a continuing duty upon a defendant to request a hearing, we review that decision de novo. We also review de novo the circuit court's determination that its own failure to rule within a reasonable time resulted in a

Page 511

[198 W.Va. 302] loss of jurisdiction, thereby precluding the court from considering a defendant's timely filed motion to reduce his sentence.

B. Rule 35(b), West Virginia Rules of Criminal Procedure

1. Abandonment

Our discussion of both aspects of the circuit court's holding is based in Rule 35(b) (1996) of the West Virginia Rules of Criminal Procedure, which states:

Reduction of Sentence--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. 6

Rule 35(b) of the West Virginia Rules of Criminal Procedure consists of three parts: the first part sets forth a time limitation (120 days) and the events that commence the running of the time limitation; the second part requires the court to rule on the motion "within a reasonable time;" and the third part permits the grant of probation as a reduction of sentence. The first part, contained in the first sentence of the rule, limits the time to 120 days for either filing of a motion for sentence reduction or action by a court, without a motion, to reduce a sentence. The 120-day period is triggered by...

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217 practice notes
  • State Va. v. Eilola, No. 35140.
    • United States
    • Supreme Court of West Virginia
    • November 18, 2010
    ...and questions of law and interpretations of statutes and rules are subject to a de novo review.” Syllabus Point 1, State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996). 4. “The Double Jeopardy and Equal Protection Clauses of the West Virginia Constitution require that time spent in jail befo......
  • State Of West Va. v. Eilola, No. 35140
    • United States
    • Supreme Court of West Virginia
    • March 10, 2010
    ...and questions of law and interpretations of statutes and rules are subject to a de novo review.” Syllabus Point 1, State v. Head, 198 W. Va. 298, 480 S.E.2d 507 (1996). 4. “The Double Jeopardy and Equal Protection Clauses of the West Virginia Constitution require that time spent in jail bef......
  • Kevin E. E. v. Seifert, No. 12-1285
    • United States
    • Supreme Court of West Virginia
    • October 1, 2013
    ...during the sentencing phase of a criminal proceeding is a critical component of the criminal justice system. See State v. Head, 198 W.Va. 298, 306, 480 S.E.2d 507, 515 (1996) (Cleckley, J., concurring) ("Circuit court judges have a right to believe that so long as they have not violated a l......
  • State v. Arbaugh, No. 31326.
    • United States
    • Supreme Court of West Virginia
    • March 2, 2004
    ...Arbaugh seeks appellate relief. II. STANDARD OF REVIEW The standard of review in this case is found in syllabus point 1 of State v. Head, 198 W.Va. 298, 480 S.E.2d 507 In reviewing the findings of fact and conclusions of law of a circuit court concerning an order on a motion made under Rule......
  • Request a trial to view additional results
218 cases
  • State Va. v. Eilola, No. 35140.
    • United States
    • Supreme Court of West Virginia
    • November 18, 2010
    ...and questions of law and interpretations of statutes and rules are subject to a de novo review.” Syllabus Point 1, State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996). 4. “The Double Jeopardy and Equal Protection Clauses of the West Virginia Constitution require that time spent in jail befo......
  • State Of West Va. v. Eilola, No. 35140
    • United States
    • Supreme Court of West Virginia
    • March 10, 2010
    ...and questions of law and interpretations of statutes and rules are subject to a de novo review.” Syllabus Point 1, State v. Head, 198 W. Va. 298, 480 S.E.2d 507 (1996). 4. “The Double Jeopardy and Equal Protection Clauses of the West Virginia Constitution require that time spent in jail bef......
  • Kevin E. E. v. Seifert, No. 12-1285
    • United States
    • Supreme Court of West Virginia
    • October 1, 2013
    ...during the sentencing phase of a criminal proceeding is a critical component of the criminal justice system. See State v. Head, 198 W.Va. 298, 306, 480 S.E.2d 507, 515 (1996) (Cleckley, J., concurring) ("Circuit court judges have a right to believe that so long as they have not violated a l......
  • State v. Arbaugh, No. 31326.
    • United States
    • Supreme Court of West Virginia
    • March 2, 2004
    ...Arbaugh seeks appellate relief. II. STANDARD OF REVIEW The standard of review in this case is found in syllabus point 1 of State v. Head, 198 W.Va. 298, 480 S.E.2d 507 In reviewing the findings of fact and conclusions of law of a circuit court concerning an order on a motion made under Rule......
  • Request a trial to view additional results

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