State v. Head
State v. Head
Opinion of the Court
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 85(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.
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
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 pf 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) (’’[sjentences imposed by the trial court, if within statutory limits and if not based on some ([imjpermissible 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
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 affir-mance 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 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.
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.
In this ease, 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
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 11^135-36 (2d ed.l993)(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); Diggs v. U.S., 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).
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
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.
. 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.
. 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.
.The critical factor underlying our decision in this case is that the appellant’s August 30, 1991 motion for sentence reduction was timely filed.
. 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.
.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.
. 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, 197 W.Va. 729, 201, 478 S.E.2d 579, 583 (1996)(per curiam)(applying the 1985 Rule 35(b) sui generis).
. We note that Rule 35(b) also permits a court to act sua sponte within the 120-day period.
.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).
. 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.
. 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
Concurring Opinion
concurring:
I note only one significant area of difference from the majority’s otherwise admirable eiqplication of this elusive subject.
The majority states that “[a] motion made under Rule 35(b) 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.... The abuse of discretion standard on Rule 35 motions continues the deference we have traditionally accorded trial courts in matters of sentencing.” The majority concedes that our appellate review under Rule 35(b) is circumscribed. Although the majority suggests that the standard of review is an abuse of discretion, which was characterized by us recently as less than appellant friendly, by adopting this standard without elaboration it has another effect which is not salutary. For we cannot lose sight that the abuse of discretion standard has many faces and, in our application of the standard, it can range anywhere from careful scrutiny to almost no scrutiny. I concur to emphasize that in the context of Rule 35(b) it should be the latter. Let me explain.
At the time a Rule 35(b) motion is filed, a final sentence order has been entered. Independently of Rule 35(b), the sentencing order itself is subject to appellate review, both as to its constitutionality and its compliance with the West Virginia Rules of Criminal Procedure and the applicable statutory provisions. But, we also describe the stándard of review used to review the final sentencing order as an abuse of discretion. It creates a paradox to foist another “abuse of discretion” standard on a circuit court whose response may very well be “the sentence I impose during trial was appropriate.” See, United States v. DeCologero, 821 F.2d 39, 41 (1st Cir. 1987) (holding that the function of the pre-guidelines Rule 35(b) of the federal rules was merely “to allow the district court to decide if, on further reflection, the sentence seems unduly harsh”); accord, United States v. Smith, 650 F.2d 206, 208 (9th Cir. 1981).
The tenor of my comments here are consistent with the manner in which federal appellate courts understood the degree of deference that was to be accorded federal district court rulings on motions to reduce sentences, prior to the adoption of the Federal Sentencing Guidelines and the alteration of Rule 35(b) under the federal rules. In United States v. Lewis, 743 F.2d 1127, 1129 (5th Cir. 1984), it was said that a district court’s ruling under Rule 35(b) would be reversed “ ‘only for illegality or gross abuse of discretion.’ ” Quoting, United States v. Rollerson, 491 F.2d 1209, 1213 (5th Cir. 1974) (emphasis added). See, United States v. Stump, 914 F.2d 170, 172 (9th Cir. 1990) (gross abuse of discretion standard); United States v. Distasio, 820 F.2d 20, 24 (1st Cir. 1987) (gross abuse of discretion standard). In an unpublished opinion, the court in United States v. Rosch, 70 F.3d 1275, 1995 WL 695973 (7th Cir. 1995) held that: “The court has almost unlimited discretion under Rule 35(b) to reduce a sentence, and its ruling will not be disturbed except for dear abuse of discretion.” (Citations omitted) (emphasis added). This is the nature of the deference we must accord circuit courts on the issue of a reduction in sentence.
The present case is an excellent example of what type abuse of discretion claim we should review. I agree with the majority’s opinion that the error committed in this instance is one of law, and it squarely falls within the purview of our appellate authority to correct. It is fundamental law that a “court by definition abuses its discretion when it makes an error of law.” Koon, — U.S. at -, 116 S.Ct. at 2047 (citation omitted). However, we should not let this case send a signal that this Court will readily
. Prior to 1987, Rule 35(b) of the Federal Rules of Criminal Procedure was identical to our current Rule 35(b). The change in the federal provision was done to reflect the adoption of the Federal Sentencing Guidelines.
. Even at the trial phase the trial court has great discretion. Because credibility and demeanor play a crucial role in determining whether a person is genuinely contrite, and because the sentencing judge has the unique opportunity of observing the defendant and evaluating his or her desirability for leniency in a live context, all rulings and findings of the trial court are entitled to great respect and should not be disturbed unless it is without foundation.
. Indeed, in Koon v. United States, - U.S. -, -, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392 (1996), for sentencing under the Guidelines the United States Supreme Court abolished "de novo” review and established a "unitary abuse of discretion standard.” As the Fourth Circuit stated in United States v. Hairston, 96 F.3d 102, 106-107 (4th Cir. 1996), “[t]his review for abuse of discretion, however, includes a legal analysis ... ‘[a] court by definition abuses it discretion when it makes an error of law,' our overall review is thus for abuse of discretion.” (Citation omitted).
Reference
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- STATE of West Virginia, Plaintiff Below, Appellee, v. Michael HEAD, Defendant Below, Appellant
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