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State ex rel. State v. Sims

Supreme Court of West Virginia

October 6, 2017

STATE OF WEST VIRGINIA EX REL. STATE OF WEST VIRGINIA, Petitioner
v.
HONORABLE DAVID J. SIMS, JUDGE OF THE CIRCUIT COURT OF OHIO COUNTY, WEST VIRGINIA AND ROBERT W. McFARLAND, Respondents AND STATE OF WEST VIRGINIA EX REL. STATE OF WEST VIRGINIA, Petitioner
v.
HONORABLE DAVID J. SIMS, JUDGE OF THE CIRCUIT COURT OF OHIO COUNTY, WEST VIRGINIA AND JAMES WILKERSON, Respondents

          Submitted: September 19, 2017

         PETITION FOR WRIT OF PROHIBITION WRIT GRANTED

          Patrick Morrisey Attorney General Robert L. Hogan Charleston, West Virginia Attorneys for Petitioner

          Matthew Brummond Public Defender Services Charleston, West Virginia Attorney for Respondent, Robert W. McFarland John M. Jurco St. Clairsville, Ohio Attorney for Respondent, James Wilkerson

         SYLLABUS

         1. When a defendant files a motion to correct a sentence under Rule 35(a) of the West Virginia Rules of Criminal Procedure, the prosecuting attorney is entitled to reasonable notice and an opportunity to be heard on the motion.

         2. A circuit court does not have jurisdiction to rule upon the merits of a motion for reduction of a sentence under Rule 35(b) of the West Virginia Rules of Criminal Procedure when the motion is filed outside the 120-day filing period set out under that rule.

          OPINION

          Davis, Justice

         This matter involves two consolidated petitions for writs of prohibition. In petition No. 17-0275, the State seeks to prohibit enforcement of an order of the Circuit Court of Ohio County that reduced the criminal sentence of James Wilkerson. In petition No. 17-0214, the State seeks to prohibit enforcement of an order of the Circuit Court of Ohio County that reduced the criminal sentence of Robert W. McFarland. After carefully reviewing the briefs, the arguments of the parties, the legal authority cited, and the record presented for consideration, we grant the writs.

         I. FACTUAL AND PROCEDURAL HISTORY

         The two consolidated petitions in this matter involve different underlying circumstances. Therefore, we will present separate factual and procedural histories.

         A. Petition No. 17-0275

         Petition No. 17-0275 involves the criminal prosecution of James Wilkerson. In November 2008, Mr. Wilkerson and a co-defendant, Brandon Myers, robbed and physically assaulted two thirteen-year-old boys. Mr. Wilkerson and Mr. Myers were jointly indicted on two counts of robbery in the first degree, two counts of assault during the commission of a felony, and one count of conspiracy to commit first degree robbery. Mr. Myers eventually pled guilty to lesser offenses and received an effective sentence of ten to thirty-six years confinement.[1] The case against Mr. Wilkerson was tried before a jury in July 2011. The jury convicted him of two counts of first degree robbery, one count of assault during the commission of a felony, and one count of conspiracy to commit first degree robbery. The trial court sentenced Mr. Wilkerson to forty years incarceration for each of the robbery convictions and ordered the sentences to be served consecutively-for an effective sentence of eighty years. The sentences for the remaining convictions were ordered to be served concurrent to each other and concurrent to the eighty-year robbery sentence.

         Mr. Wilkerson appealed his conviction. This Court affirmed the judgment in State v. Wilkerson, 230 W.Va. 366, 738 S.E.2d 32 (2013). In January 2014, Mr. Wilkerson filed a pro se motion under Rule 35(b) of the West Virginia Rules of Criminal Procedure seeking to have his sentence reduced. The trial court denied the motion as untimely.[2] In April 2014, Mr. Wilkerson filed a petition for a writ of habeas corpus in the circuit court. The circuit court denied the habeas petition in June 2016.[3] On July 7, 2016, Mr. Wilkerson filed another Rule 35(b) motion seeking to have his sentence reduced. The State was not given notice of the motion, nor was the state given an opportunity to be heard. On July 12, 2016, the circuit court granted the motion and ordered Mr. Wilkerson's two forty-year sentences for first degree robbery be served concurrently. The State filed an appeal of the order and argued that the Rule 35(b) motion was untimely and that the State was not afforded notice and an opportunity to be heard.[4] Mr. Wilkerson filed a motion to dismiss the appeal on the grounds that no legal authority existed for the State to file an appeal. This Court granted the motion to dismiss the appeal on January 25, 2017. Subsequently, the State filed the instant petition for a writ of prohibition on March 23, 2017.

         B. Petition No. 17-0214

         Petition No. 17-0214 involves the criminal prosecution of Robert W. McFarland. The record indicates that in October 2008, Mr. McFarland and a co-defendant, Eric Holmes, broke into the home of Jonathan Ward and Kelly Mitchell.[5] Mr. Ward was beaten with the butt of a shotgun and the home was robbed. The police captured Mr. McFarland and Mr. Holmes shortly after the robbery. Mr. McFarland was indicted on one count of robbery in the first degree, one count of assault during the commission of a felony, malicious assault, and one count of conspiracy.[6] Mr. McFarland eventually entered a guilty plea to attempted robbery in the first degree, and agreed not to challenge the sentence that was imposed. The circuit court accepted the plea and on July 10, 2009, sentenced Mr. McFarland to 70 years imprisonment.

         Even though the plea agreement prohibited Mr. McFarland from challenging the sentence, he filed a petition for appeal with this Court. The petition was refused on January 28, 2010. On May 19, 2010, Mr. McFarland filed a motion to reduce his sentence under Rule 35(b). In an order entered on June 8, 2010, the circuit court denied the motion under Rule 35(a) and Rule 35(b).[7] Mr. McFarland thereafter filed a petition for habeas corpus relief in the circuit court. The circuit court denied habeas relief by orders entered on September 9, 2011, and on August 8, 2012. Mr. McFarland appealed the denial of habeas relief. This Court affirmed the denial in McFarland v. Ballard, No. 12-1105, 2013 WL 3184657 ( W.Va. June 24, 2013).

         In August 2013, Mr. McFarland filed a pro se motion in circuit court for a reduction of his sentence. The circuit court treated the motion as a Rule 35(b) motion and denied the same on October 1, 2013.[8] On December 17, 2014, Mr. McFarland filed another Rule 35(b) motion with the circuit court. The State contends that it did not receive notice and an opportunity to be heard on the motion. On February 2, 2017, the circuit court entered an order reducing Mr. McFarland's sentence to 35 years.[9] This order purportedly was based upon Mr. McFarland's Rule 35(b) motion that was filed on May 19, 2010, and resolved by Judge Recht on June 8, 2010. The State subsequently challenged the order reducing the sentence though the instant petition for a writ of prohibition.[10]

         II. STANDARD OF REVIEW

         Both of the consolidated cases in this matter seek a writ of prohibition to prevent enforcement of resentencing orders by the circuit court. There are limited circumstances in which the State may request a writ of prohibition in a criminal matter. We have held that

The State may seek a writ of prohibition in this Court in a criminal case where the trial court has exceeded or acted outside of its jurisdiction. Where the State claims that the trial court abused its legitimate powers, the State must demonstrate that the court's action was so flagrant that it was deprived of its right to prosecute the case or deprived of a valid conviction. In any event, the prohibition proceeding must offend neither the Double Jeopardy Clause nor the defendant's right to a speedy trial. Furthermore, the application for a writ of prohibition must be promptly presented.

Syl. pt. 5, State v. Lewis, 188 W.Va. 85, 422 S.E.2d 807 (1992), superseded by statute on other grounds as recognized by State v. Butler, 239 W.Va. 168, 799 S.E.2d 718 (2017). In Syllabus point 4 of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996), we set forth the following standard for issuance of a writ of prohibition:

In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.

         With the foregoing in mind, we turn to the issues presented.

         III.

         DISCUSSION

         In order to resolve the petitions presented in this matter we need only address the merits of two issues. First, in the case of Mr. Wilkerson the dispositive issue is whether the State was entitled to notice and an opportunity to be heard before the circuit court ruled upon his Rule 35 motion.[11] The second issue that we will address concerns the State's ...


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