State v. Keefer

• Decision Date: 04 November 2022
• Docket Number: 21-0490
• Citation: 880 S.E.2d 106
• Parties: STATE of West Virginia, Plaintiff Below, Respondent, v. Emily J. KEEFER, Defendant Below, Petitioner.
• Court: West Virginia Supreme Court

880 S.E.2d 106

STATE of West Virginia, Plaintiff Below, Respondent,

v.Emily J. KEEFER, Defendant Below, Petitioner.

No. 21-0490

Supreme Court of Appeals of West Virginia.

Filed: November 4, 2022

Concurring and Dissenting Opinion of Justice Wooton November 9, 2022

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 offenses¹ 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.

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.² 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.").

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).³ 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;⁴ a circuit court judge has filed an improper response to an appeal;⁵ an issue was not properly presented to and considered by a circuit court;⁶ good cause for a continuance was not established by a court order;⁷ and a party sought to compel a circuit court judge to testify regarding the manner in which an official proceeding had been conducted.⁸ 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.").

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