WOOTON, J., concurring, in part, and dissenting, in part:
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.[1]
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.[2]
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 (W.Va. 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." (...
