STATE OF WEST VIRGINIA EX REL. STATE OF WEST VIRGINIA, Petitioner
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
HONORABLE DAVID J. SIMS, JUDGE OF THE CIRCUIT COURT OF OHIO COUNTY, WEST VIRGINIA AND JAMES WILKERSON, Respondents
Submitted: September 19, 2017
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
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.
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.
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.
FACTUAL AND PROCEDURAL HISTORY
consolidated petitions in this matter involve different
underlying circumstances. Therefore, we will present separate
factual and procedural histories.
Petition No. 17-0275
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. 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.
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. 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. 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. 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.
Petition No. 17-0214
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. 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. 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.
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). 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).
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. 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. 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
STANDARD OF REVIEW
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
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.
the foregoing in mind, we turn to the issues presented.
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. The second issue that we will address
concerns the State's ...