State of WV v. Head
Annotate this Case
September 1996 Term
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No. 23404
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STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee,
v.
MICHAEL HEAD,
Defendant Below, Appellant
________________________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable Lyne Ranson, Judge
Criminal Action No. 90-F-88
REVERSED AND REMANDED
________________________________________________________________
Submitted: September 24, 1996
Filed: November 14, 1996
William C. Forbes, Esq. John H. Boothroyd, Esq.
Prosecuting Attorney for Kanawha County Assistant Public Defender
Mary Beth Kershner, Esq. Charleston, West Virginia
Assistant Prosecuting Attorney Attorney for the Appellant
Charleston, West Virginia
Attorneys for the Appellee
JUDGE RECHT sitting by temporary assignment delivered the Opinion of the Court.
JUSTICE CLECKLEY concurs and reserves the right to file a concurring opinion.
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.
Recht, Judge:See footnote 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.See footnote 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.See footnote 3 It is undisputed that the
appellant's August 30, 1991 motion was filed timely.See footnote 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 case in 1994.See footnote 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. 644, 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 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.See footnote 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 any of the following events:
(1) imposition of the sentence; (2) revocation of probation; (3) this Court's affirmance of a
judgment of a conviction or probation revocation; or (4) this Court's dismissal or rejection
of a petition for appeal of a conviction or probation.See footnote 7 The second part, contained in the
second sentence of the rule, requires the determination of a motion by the court "within a
reasonable time." Finally, the third part, contained in the last sentence of the rule, permits
a change of a sentence of imprisonment to a grant of probation.
Under the clear language of the rule, within 120 days of one of the measuring
events, a defendant who wishes to insure consideration of his request must file a motion for
reduction of his sentence.See footnote 8 Rule 35(b), by its express terms, does not require any other
action by a defendant for consideration of a motion for sentence reduction; rather, once a
motion is filed, Rule 35(b) shifts the burden to the court for a determination of "the motion
within a reasonable time."
In this case, the appellant filed his motion on August 30, 1991, which was
within 120 days of this Court's rejection of his petition for appeal on July 2, 1991. No other action by the appellant was required. The appellant was not required by Rule 35(b) to seek
an expedited hearing or to otherwise remind the circuit court of his motion. Although the
circuit court's order speculates that such tactics would have resulted in a more timely
consideration of the appellant's motion, that speculation is not supported by the record.
Indeed, the appellant's second motion for a sentence reduction, filed on June 16, 1994, also
languished.See footnote 9 The record contains no response to the three letters sent in 1994 by the
appellant to several judges of the Kanawha County Circuit Court, none of whom had been
assigned to the appellant's case.See footnote 10 The record indicates that the appellant's motion remained
undecided for over four years because of an administrative error. Because the appellant
timely filed his motion, thereby fulfilling his duty under Rule 35, he was not required to
remind the court of his motion. The appellant's failure to remind the trial court of his motion
cannot be considered to be an abandonment of his motion. 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. Based on the plain language of Rule 35(b) and the timely filing
of the motion for sentence reduction, we find that the circuit court erred in finding that the appellant had abandoned his motion by failing to make "any reasonable effort . . . to request
or obtain an expeditious ruling."
2. Jurisdiction
The circuit court also ruled that it lacked jurisdiction to consider the matter
because the passage of time was unreasonable. The jurisdiction question was the critical
issue in the circuit court's refusal to consider the appellant's motion on its merits. Rule
35(b) requires that the court "determine the motion within a reasonable time." The
"reasonable time" limitation of Rule 35(b) has generally been recognized as a policy decision
preventing a trial court's reconsideration of a sentencing decision so as to interfere with or
supersede the function of the parole board. The Fourth Circuit in U.S. v. Stollings, 516 F.2d 1287, 1289 (4th Cir. 1975), allowed a district court a reasonable time after the 120-day
period to decide a motion for sentence reduction. In Stollings, the motion was filed on 119th
day and was not decided until a few days later, and the Fourth Circuit, based on the purposes
underlying the rule, found that the district court retained jurisdiction for a limited period and
stated:
The time limitation appears to have as its dual purpose the
protection of the district court from continuing and successive
importunities and to assure that the district court's power to
reduce a sentence will not be misused as a substitute for the
consideration of parole by the Parole Board.
516 F.2d at 1289. See Franklin D. Cleckley, Handbook on West Virginia Criminal
Procedure II-435-36 (2d ed. 1993)(the policy behind Rule 35 is (1) to protect the court from repetitious motions and (2) to protect "against usurpations by the sentencing court of function
properly performed by the board of parole").
However, many courts have not looked to the purposes of the time limitation
imposed by Rule 35(b), but simply have looked to the amount of delay to determine whether
a "reasonable" time had passed. See U.S. v. Idone, 38 F.3d 693 (3rd Cir. 1994)(twenty-five
months considered unreasonable); U.S. v. Diggs, 740 F.2d 239 (3rd Cir. 1984)(two and a
half years considered unreasonable); U.S. v. Taylor, 768 F.2d 114 (6th Cir. 1985)(eighteen
months considered unreasonable); U.S. v. Kajevic, 711 F.2d 767 (7th Cir. 1983), cert.
denied, 464 U.S. 1047, 104 S. Ct. 721, 79 L. Ed. 2d 182 (1984)(questioning any delay beyond
the 120-day limitation).See footnote 11
We note that the pre-1985 federal Rule 35 spoke in terms of having the
sentencing court take action within the 120-day period. In 1985, a provision similar to the
second sentence of our Rule 35(b) was added allowing the court to "determine the motion
within a reasonable time." Because a strict application of the pre-1985 federal Rule 35
would have resulted in "manifest unfairness" (Diggs v. U.S., 740 F.2d at 245), the federal courts implied a "reasonable period" after the 120-day period to allow the sentencing court
to consider the motion. Because of the limited period specified in the pre-1985 federal Rule
35(b), federal courts have narrowly interpreted what constitutes a "reasonable period."
However, at least one court has questioned this narrow interpretation when the excessive
delay is caused by administrative error. In U.S. v. Hernandez, 975 F.2d 706, 709 n.5 (10th
Cir. 1992), the Tenth Circuit Court said:
We are reluctant to conclude that a district court by inaction on
a timely filed motion can deprive itself of jurisdiction. Because
of our conclusion that the district court properly denied Rule
35(b) relief we do not here rule on the timeliness question,
although we note that the district court explained the delay
resulted from the motion having been "mislaid or put aside or
lost."
Given the history of federal Rule 35(b), we find the federal interpretations of their former
Rule 35(b) have limited persuasive value in determining a "reasonable period" under our
Rule 35(b). We, similar to U. S. v. Hernandez, are reluctant to allow error by a sentencing
court to deprive a defendant of a consideration of the merits of his motion for sentence
reduction. Rather, under our Rule 35(b), 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 approach is consistent with the language of the rule.
In this case, the delay was caused by an administrative error of the circuit
court. The appellant's Rule 35(b) motion was timely filed, but no action was taken on his
motion for over four years. For the purposes of Rule 35(b), a defendant should not be
penalized by a court's failure to act. A delay caused solely by a court's administrative error should not constitute unreasonable delay for the purposes of Rule 35(b). "Were it otherwise,
the defendant would be twice penalized: once because the court failed to act on his motion
for . . . [almost four] years; and once again because the court's own inaction bars Rule 35
relief." Diggs, 740 F.2d at 250 (Gibbon, J., dissenting). In order to avoid penalizing a
defendant, we find that when a trial court fails to act on a defendant's timely filed Rule 35(b)
motion by reason of an administrative error, any resultant delay cannot, as a matter of law,
be an unreasonable delay barring Rule 35(b) relief. Because the delay in this case was
caused by administrative error, the circuit court erred in finding that it lacked jurisdiction to
consider the appellant's timely filed Rule 35(b) motion, and we remand the appellant's
motion for further consideration.
On remand, because of the extraordinary delay in this case, which was not
caused by the appellant, the circuit court should not limit its consideration to the now stale
facts and events of 1991. In this case, the policy concerns underlying Rule 35(b) are not
violated by a broader inquiry because the appellant, serving his sixty-year term, has not yet
come before the parole board for its evaluation. The circuit court need not worry that
considering facts and events which occurred during the delay will interfere with any activity
of the parole board because the parole board has not acted. When considering Rule 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. See U.S. v. Taylor, 768 F.2d 114, 118 n. 4 (6th Cir. 1985) ("district judge is not required to close his eyes to developments favorable to the movant's request"); U.S.
v. Colvin, 644 F.2d 703, 705 (8th Cir. 1981), quoting, U.S. v. Ellenbogen, 390 F.2d 537, 543
(2nd Cir.), cert. denied, 393 U.S. 918, 89 S. Ct. 241, 21 L. Ed. 2d 206 (1968)(district court can
"reconsider the sentence in the light of any further information about the defendant or the
case which may have been presented to him in the interim").
For the above stated reasons, we reverse the decision of the Circuit Court of
Kanawha County and remand this case for proceedings consistent with this opinion.
Reversed and remanded.
Footnote: 1
The Honorable Arthur M. Recht resigned as Justice of the West Virginia Supreme
Court of Appeals effective October 15, 1996. The Honorable Gaston Caperton, Governor
of the State of West Virginia, appointed him Judge of the First Judicial Circuit on that same
date. Pursuant to an administrative order entered by this Court on October 15, 1996, Judge
Recht was assigned to sit as a member of the West Virginia Supreme Court of Appeals
commencing October 15, 1996 and continuing until further order of this Court.Footnote: 2
Although Judge Ranson's denial of the appellant's motion for reduction of sentence
is the subject of this appeal, John Hey, a former circuit court judge in Kanawha County,
presided at trial and sentenced the appellant.Footnote: 3
Although Rule 35(b) of the West Virginia Rules of Criminal Procedure was amended,
effective September 1, 1996, to clarify when an action by this Court commences the running
of the 120-day period for filing a motion for sentence reduction, that amendment does not
impact this case and therefore, we will cite to the new rule. See State v. Thornton, ___ W.
Va. ___, ___ S.E.2d ___ (No. 23345 Oct. 15, 1996). Under Rule 35(b)(1996) of the West
Virginia Rules of Criminal Procedure, "[a] motion to reduce a sentence may be made. .
.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 dismissing or rejecting a petition for appeal of a judgment of a conviction
or probation revocation." See infra p. 6 for the complete text of Rule 35(b)(1996).Footnote: 4
The critical factor underlying our decision in this case is that the appellant's August
30, 1991 motion for sentence reduction was timely filed. Footnote: 5
The grounds for relief asserted in all three documents (the two motions and the
amended motion), were essentially the same with the appellant urging that his character was
such that a reduction was warranted and that a 60-year sentence was excessive. The only
real difference among the documents was the claim of an additional record of good behavior,
represented by the passage of time.Footnote: 6
Before the 1996 amendment, Rule 35(b) of the West Virginia Rules of Criminal
Procedure read:
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 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 of Appeals denying review of, or having the
effect of upholding, a judgment of 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.
Footnote: 7
See State v. Thornton, supra (discussing the events which commenced the 120-day
period under Rule 35(b)(1985); State ex rel. Massey v. Hun, ___ W. Va. ___, ___, ___
S.E.2d ___, ___, Slip op. at 9-10 (No. 23647 Oct. 16, 1996)(per curiam)(applying the 1985
Rule 35(b) sui generis).Footnote: 8
We note that Rule 35(b) also permits a court to act sua sponte within the 120-day
period. Footnote: 9
The appellant's June 16, 1994 motion was not timely filed and consideration of that
motion is barred by Rule 35(b). However, his August 2, 1995 motion was an amendment to
and related back to his timely filed August 30, 1991 motion. Consideration of the appellant's
amended motion is not barred by the 120-day limitation of Rule 35(b). Footnote: 10
We note that Judge Ranson was not assigned to this case until August 19, 1994, and
none of the appellant's letters was sent to her. See supra note 2, noting case assignment. Footnote: 11
The current Rule 35 of the Federal Rules of Criminal Procedure differs substantially
from our Rule 35. A pre-1985 version of federal Rule 35 authorized "district courts to
reduce a sentence within 120 days after it is imposed or after it has been affirmed on appeal.
The time period is jurisdictional and may not be extended." U.S. V. Addonizio, 442 U.S. 178, 189, 99 S. Ct. 2235, 2242, 60 L. Ed. 2d 805, 814 (1979). However, several courts
including the 4th Cir. in Stollings, supra, found the sentencing court has limited authority to
reduce a sentence beyond the 120-day period where the rule 35(b) motion was timely filed.
See U.S. v. Janiec, 505 F.2d 983, 984-85 n. 3 (3rd Cir. 1974), cert. denied, 420 U.S. 948, 95 S. Ct. 1332, 43 L. Ed. 2d 427 (1975). In 1985, federal Rule 35(b) was amended to specify that
the district court "shall determine the motion within a reasonable time."
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