SER State of West Virginia v. Hon. David J. Sims, Judge
239 W. Va. 764
| W. Va. | 2017Background
- Two consolidated petitions by the State seeking writs of prohibition to vacate circuit-court orders reducing sentences for James Wilkerson and Robert McFarland.
- Wilkerson: convicted of two first-degree robberies (40 years each, consecutive for 80 years). He filed a pro se Rule 35(b) motion; the court converted it to Rule 35(a) and reduced the two 40-year sentences to concurrent without giving the State notice or an opportunity to be heard.
- McFarland: pleaded to attempted first-degree robbery and was sentenced to 70 years in 2009; he filed multiple Rule 35(b) motions over the years. The circuit court reduced his sentence in 2017 based on a 2014 Rule 35(b) filing that was well outside the 120-day limit in Rule 35(b).
- Procedural posture: State sought prohibition arguing (1) lack of notice/opportunity to be heard on Wilkerson’s Rule 35(a) correction, and (2) lack of circuit-court jurisdiction to act on McFarland’s untimely Rule 35(b) motion.
- Supreme Court of Appeals granted both writs: (a) Wilkerson’s resentencing is barred until the State is afforded notice and a hearing; (b) McFarland’s 2014 Rule 35(b) motion was untimely, so the circuit court lacked jurisdiction and its reduction order was prohibited.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the State must receive notice and an opportunity to be heard before a court grants relief under Rule 35(a) | State: Rule 35(a) proceedings require the prosecuting attorney reasonable notice and opportunity to be heard | Wilkerson: Rule 35(a) contains no express notice requirement; he filed pro se and failed to serve the State; State could seek reconsideration after the order | Held: The State is entitled to reasonable notice and an opportunity to be heard on Rule 35(a) motions (court relied on Rule 49(a), Rule 32(c)(3), and Reed) |
| Whether the 120-day filing limit in Rule 35(b) is jurisdictional | State: The 120-day limit is jurisdictional; the court cannot extend it under Rule 45(b)(2) | McFarland: The time limit is not jurisdictional; court could grant relief despite lateness | Held: The 120-day limit in Rule 35(b) is jurisdictional; a court lacks jurisdiction to rule on an untimely Rule 35(b) motion |
Key Cases Cited
- State ex rel. Reed v. Douglass, 189 W. Va. 56, 427 S.E.2d 751 (1993) (prosecuting attorney entitled to reasonable notice and opportunity to be heard on motions for favorable modification)
- State v. Lewis, 188 W. Va. 85, 422 S.E.2d 807 (1992) (standards for State to seek writ of prohibition in criminal cases)
- State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996) (five-factor test for issuing writ of prohibition where tribunal exceeded legitimate powers)
- United States v. Addonizio, 442 U.S. 178 (1979) (time period for filing under federal Rule 35(b) is jurisdictional)
- United States v. Hill, 826 F.2d 507 (7th Cir. 1987) (120-day filing period for Rule 35(b) is jurisdictional and cannot be extended)