                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia,                                                         FILED
Plaintiff Below, Respondent                                                    October 1, 2013
                                                                           RORY L. PERRY II, CLERK
                                                                         SUPREME COURT OF APPEALS
vs) No. 12-1399 (Cabell County 11-F-318)                                     OF WEST VIRGINIA


Tiffany Lucas,

Defendant Below, Petitioner


                                MEMORANDUM DECISION

        Petitioner Tiffany Lucas’s appeal, filed by counsel A. Courtenay Craig, arises from an
order entered on October 16, 2012, in the Circuit Court of Cabell County that denied her motion
for reduction of sentence. The State of West Virginia, by counsel Laura Young, filed a summary
response.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        In September of 2011, petitioner and her co-defendant were each indicted on one count of
burglary, one count of conspiracy to commit burglary, one count of attempted first degree
robbery, and one count of conspiracy to commit first degree robbery. On March 28, 2012,
petitioner pled guilty, pursuant to Kennedy v. Frazier, 178 W.Va. 10, 357 S.E.2d 43 (1987), to
one count of burglary and one count of conspiracy. As part of the plea agreement, the remaining
charges against petitioner were dismissed. Petitioner was sentenced to a term of incarceration of
one to fifteen years for burglary and a concurrent term of incarceration of one to five years for
conspiracy to commit burglary. On August 1, 2012, petitioner filed a motion for reduction of
sentence pursuant to Rule 35(b) of the West Virginia Rules of Criminal Procedure. The circuit
court denied petitioner’s motion by order entered on October 16, 2012. It is from this order that
petitioner appeals.

       This Court has adopted the following standard of review for appeals from the denial of a
Rule 35 motion:

       “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 Crimingal Procedure, we apply a three-pronged standard of 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


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       law and interpretations of statutes and rules are subject to a de novo review.”
       Syllabus Point 1, State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).

Syl. Pt. 3, State v. Eilola, 226 W.Va. 698, 704 S.E.2d 698 (2010).

        On appeal, petitioner argues that the circuit court considered an impermissible factor in
sentencing her. She argues that the circuit court imposed a more severe sentence than it imposed
on her co-defendant because she elected to remain silent upon questioning by the circuit court.
Petitioner alleges that the circuit court inferred from her silence that she was more culpable and
sentenced her more severely, in violation of Mitchell v. U.S., 526 U.S. 314 (1999).1

         The Court finds that the circuit court did not abuse its discretion in denying petitioner’s
motion for reduction of sentence. This Court has held that, “[s]entences imposed by the trial
court, if within statutory limits and if not based on some [im]permissible factor, are not subject to
appellate review.” Syl. Pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982). We
have also stated:

       “Disparate sentences for codefendants are not per se unconstitutional. Courts
       consider many factors such as each codefendant's respective involvement in the
       criminal transaction (including who was the prime mover), prior records,
       rehabilitative potential (including post-arrest conduct, age and maturity), and lack
       of remorse. If codefendants are similarly situated, some courts will reverse on
       disparity of sentence alone.” Syllabus Point 2, State v. Buck, 173 W.Va. 243, 314
       S.E.2d 406 (1984).

Syl. Pt. 4, State v. Darmon, 213 W.Va. 8, 576 S.E.2d 253 (2002). The circuit court sentenced
petitioner within the limits of West Virginia Code §§ 61-3-11 and 61-10-31. Contrary to
petitioner’s argument, a review of the record as a whole demonstrates that the circuit court did
not impermissibly rely on petitioner’s silence during sentencing as the basis for her sentence.
        During the hearing on petitioner’s Motion to Reduce Sentence, the circuit court judge
clarified the basis for the sentence imposed. The circuit court explained that the evidence showed
that petitioner was the primary mover of the underlying offense. Petitioner was the elderly
victim’s cleaning lady, knew of his health issues, and had recently taken him to the bank thus she
knew he had money in the home. The co-defendant is petitioner’s cousin and did not have first­
hand knowledge of the victim’s situation. Petitioner drove her co-defendant to the victim’s house
and drove around the area while her co-defendant entered the house for the purpose of stealing.
We conclude that petitioner’s culpability was the basis for her sentence, thus the sentence was
not based upon an impermissible factor.

       For the foregoing reasons, we affirm.



1
 In response to invoking her privilege to remain silent, the circuit court stated, “Okay. Okay.
Then she shall pay for that.” This statement was made amid a discussion about which of the two
co-defendants was more culpable.


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                                        Affirmed.

ISSUED: October 1, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II

DISSENTING:

Justice Robin Jean Davis
Justice Menis E. Ketchum




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No. 12-1399 – State of West Virginia v. Tiffany Lucas


Ketchum, Justice, dissenting:

               The defendant exercised her constitutional right to remain silent at her sentencing.

The trial court punished her for remaining silent stating, “Then she will pay for that.”

               In Mitchell v. U.S., 526 U.S. 314 (1999), the Supreme Court held that a

sentencing court may not draw an adverse inference from a defendant’s silence. We should have

remanded this case for resentencing by a different judge.

               I dissent.




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