880 S.E.2d 106
W. Va.2022Background
- Keefer pleaded guilty to two felonies in November 2020 pursuant to a plea agreement; sentencing occurred January 12, 2021.
- At the January 12 hearing the circuit court orally imposed consecutive terms (aggregate 2–15 years); a written Final Sentencing Order was entered January 19, 2021 (stating effective date January 12).
- Keefer filed a Rule 35(b) motion to reduce sentence on March 22, 2021 (denied on merits), then a second Rule 35(b) motion on May 17, 2021.
- The circuit court denied the May 17 motion as untimely on May 19, 2021, calculating the 120‑day Rule 35(b) period from the oral pronouncement on January 12, 2021.
- Keefer appealed, arguing the 120‑day period begins on entry of the written sentencing order; the State and the circuit court treated the oral pronouncement as the triggering event.
- The Supreme Court of Appeals of West Virginia affirmed, holding a sentence is "imposed" for Rule 35(b) when verbally pronounced at the sentencing hearing; timeliness is measured from that pronouncement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does the 120‑day Rule 35(b) period begin — oral pronouncement at sentencing or entry of the written sentencing order? | Keefer: court speaks only through written orders, so the 120 days should run from entry of the written sentencing order. | State/Circuit: the sentence is ‘‘imposed’’ when orally pronounced at the sentencing hearing; thus the 120 days run from the oral pronouncement; any error would be harmless. | The Court held a sentence is "imposed" when verbally pronounced at the sentencing hearing; Rule 35(b) timeliness runs from that pronouncement. |
Key Cases Cited
- Moats v. Preston Cnty. Comm'n, 206 W. Va. 8, 521 S.E.2d 180 (1999) (recognizes that, generally, an order is effective when announced and oral orders have legal force)
- State ex rel. State v. Sims, 239 W. Va. 764, 806 S.E.2d 420 (2017) (Rule 35(b) 120‑day period is jurisdictional and cannot be enlarged)
- United States v. DeVito, 99 F.R.D. 113 (D. Conn. 1983) (interpreting similar federal Rule 35(b) to trigger at oral pronouncement of sentence)
- United States v. Montoya, 48 F.4th 1028 (9th Cir. 2022) (supports that imposition of sentence occurs at oral pronouncement)