     IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                        September 2017 Term           FILED
                                                  October 6, 2017
                           _____________              released at 3:00 p.m.
                                                    RORY L. PERRY, II CLERK
                                                  SUPREME COURT OF APPEALS
                            No. 17-0214                OF WEST VIRGINIA
                           _____________

                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

____________________________________________________________________

               PETITION FOR WRIT OF PROHIBITION

                          WRIT GRANTED

____________________________________________________________________

                               AND
                           _____________

                            No. 17-0275
                           _____________

                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

  ____________________________________________________________________

                 PETITION FOR WRIT OF PROHIBITION

                            WRIT GRANTED

  ____________________________________________________________________

                            Submitted: September 19, 2017

                               Filed: October 6, 2017


Patrick Morrisey                             Matthew Brummond
Attorney General                             Public Defender Services
Robert L. Hogan                              Charleston, West Virginia
Charleston, West Virginia                    Attorney for Respondent,
Attorneys for Petitioner                     Robert W. McFarland

                                             John M. Jurco
                                             St. Clairsville, Ohio
                                             Attorney for Respondent,
                                             James Wilkerson

JUSTICE DAVIS delivered the Opinion of the Court.
                             SYLLABUS BY THE COURT




              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.




                                              i
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.


                                              1

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



              1
              Mr. Wilkerson was offered the same plea deal that Mr. Myers was given. Mr.
Wilkerson rejected the offer.
              2
               The State indicates that it did not receive notice of the Rule 35(b) motion, and
only learned of the matter after the trial court denied the motion.
              3
                  The denial of habeas relief is the subject of a pending appeal, No. 16-0689.

                                               2

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,




              4
               Before the State filed the instant petition for a writ of prohibition, the circuit
court amended the order and indicated that the reduction of the sentence was under Rule
35(a), not Rule 35(b).
              5
                  Two children were also in the home at the time.

                                               3

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




              6
              Mr. Holmes was charged separately and eventually convicted and sentenced
to 75 years imprisonment.
              7
                  The motion was denied by Judge Recht.

                                              4

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


              8
                  The motion was denied by the respondent, Judge Sims.
              9
               The order was entered by the respondent, Judge Sims. The order contained no
findings of fact and failed to cite any specific legal reason for granting the relief.
              10
                 In a supplemental response to the petition, Mr. McFarland informed this
Court that, while the petition was pending, he asked the Parole Board to place him on parole
based upon the circuit court’s order reducing his sentence. Mr. McFarland has indicated that
the Parole Board granted him parole. Mr. McFarland now asks this Court to prohibit the State
from challenging his release on parole in this proceeding. The State has responded that it is
not raising the issue of Mr. McFarland’s release on parole in this proceeding. However, the
State notes, and we agree, that Mr. McFarland’s release on parole does not moot our
resolution of the validity of the sentence reduction order. In view of our ultimate resolution
of the sentence reduction issue, the Parole Board may seek to rescind its order placing Mr.
McFarland on parole. See W. Va. C.S.R. § 92-2-4.1 (“The Board may rescind and issue a
Notice of Temporary Rescission of any grant of parole, . . . [i]f any information becomes
available to the Board which contravenes the evidence the Panel used to reach the parole
decision.”). See also Hawkins v. Freeman, 195 F.3d 732 (4th Cir. 1999) (finding no due
process violation in revoking defendant’s parole solely on the basis that he was erroneously
released on parole); Geer v. Riley, No. 8:09-1769-CMC-BHH, 2009 WL 3571541 (D.S.C.
Oct. 26, 2009) (revoking defendant’s parole two years after learning that he was erroneously
placed on parole); United States ex rel. Claybourn v. Illinois Dep’t of Corr., No. 00 C 7896,
2000 WL 1889679 (N.D. Ill. Dec. 28, 2000) (revoking defendant’s parole four months after
learning that he was erroneously placed on parole). We wish to make clear that we take no
position on the merits of any action by the Parole Board to rescind the parole order. See
                                                                                (continued...)

                                              5

                                              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


              10
                 (...continued)
Green v. Christiansen, 732 F.2d 1397, 1399 (9th Cir. 1984) (recognizing “that the
government has waived the right to reincarcerate when its agents’ actions are so affirmatively
improper or grossly negligent that it would be unequivocally inconsistent with fundamental
principles of liberty and justice to require a legal sentence to be served in its aftermath.”).

                                              6

              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


              11
                The State’s petition presented several additional arguments that attacked the
reasons given by the circuit court for reducing Mr. Wilkerson’s sentence. We will not address
those additional arguments on the merits in this proceeding. The additional arguments made
by the State should be considered and ruled upon in the first instance by the circuit court,
particularly when, as here, the State has presented four affidavits in support of its arguments
                                                                                  (continued...)

                                               7

contention that the circuit court did not have jurisdiction over Mr. McFarland’s Rule 35(b)

motion.12



                    A. The State’s Right to Notice and an Opportunity
                          to Be Heard on a Rule 35(a) Motion

               As previously noted, Mr. Wilkerson filed a Rule 35(b) motion, which the

circuit court converted into a Rule 35(a) motion in its second order.13 Consequently, our

analysis is under Rule 35(a). The State contends that this Court should prohibit enforcement

of the order reducing Mr. Wilkerson’s sentence, because it did not have notice that Mr.

Wilkerson filed the motion for sentence reduction, nor was it afforded an opportunity to be

heard in opposition to the motion.14 Mr. Wilkerson contends that the State is not entitled to


               11
                 (...continued)
against the sentence reduction. Upon remand, the State will have an opportunity to present
to the circuit court its reasons for opposing the motion. See Skaggs v. Eastern Associated
Coal Corp., 212 W. Va. 248, 256 n.3, 569 S.E.2d 769, 777 n.3 (2002) (“Because the circuit
court did not reach the merits of these [contentions] . . ., we decline to address them, and
leave them for the circuit court to address on remand.”).
               12
                The State also argued that it did not have notice and an opportunity to be
heard on Mr. McFarland’s Rule 35(b) motion. Insofar as the dispositive issue presented by
Mr. McFarland’s motion involves the jurisdiction of the circuit court, we need not address
the notice and opportunity to be heard argument as it relates to Mr. McFarland’s motion.
               13
              The State contends, and we agree, that the circuit court converted the motion
from Rule 35(b) to Rule 35(a), because the motion was untimely under Rule 35(b).
               14
                  Mr. Wilkerson has argued that the petition in this case should be dismissed
as untimely, because it was not filed until more than eight months after the circuit court’s
initial order. Insofar as the delay was attributed to the State’s erroneous, but good faith belief
                                                                                   (continued...)

                                                8

relief for three reasons. First, Mr. Wilkerson argues that he filed the motion pro se and

innocently and unknowingly failed to serve a copy on the State. Second, he argues that “Rule

35(a) does not set forth any requirement that a trial court give the State the opportunity to

defend an illegal sentence.” Third, Mr. Wilkerson contends that the State could have filed

a motion for reconsideration once it received the order reducing his sentence. For the reasons

to follow, we reject Mr. Wilkerson’s arguments.

              The text of Rule 35(a) provides as follows:

                     (a) Correction of Sentence. The court may correct
                     an illegal sentence at any time and may correct a
                     sentence imposed in an illegal manner within the


              14
                 (...continued)
that it could appeal that order, we decline to dismiss the petition. The State promptly filed
the petition after our dismissal of the erroneous appeal. We addressed a similar issue in State
ex rel. Smith v. Sims, 235 W. Va. 124, 772 S.E.2d 309 (2015), as follows:

              J.Y. urges this Court to dismiss this petition seeking a writ of
              prohibition as untimely. We decline to do so because the
              petitioner did in fact immediately file an appeal of the March 6,
              2014, dismissal order with this Court on March 19, 2014.
              However, by order dated September 17, 2014, this Court
              dismissed the appeal. . . . Following entry of our order, the
              petitioner promptly filed this petition for a writ of prohibition.

Id. at 132 n.5, 772 S.E.2d at 317 n.5. See also State ex rel. David Allen B. v. Sommerville,
194 W. Va. 86, 89 n.6, 459 S.E.2d 363, 366 n.7 (1995) (“So long as the act sought to be
prohibited has not occurred, the relief sought in this case will not be considered to be time
barred.”); State ex rel. W. Virginia Truck Stops, Inc. v. McHugh, 160 W. Va. 294, 299, 233
S.E.2d 729, 732 (1977) (“The mere expiration of time is not the controlling factor in
determining whether the petitioner proceeded in prohibition in a timely manner. There must
be an intervening change of position of the respondent induced by the inaction of the
petitioner.”).

                                              9

                      time period provided herein for the reduction of
                      sentence.

It is quite clear that Rule 35(a) does not expressly require that the State be given notice and

an opportunity to be heard. However, the absence of explicit language in Rule 35(a)

affording the State the right to notice and an opportunity to be heard is not controlling. We

resolved a similar issue in State ex rel. Reed v. Douglass, 189 W. Va. 56, 427 S.E.2d 751

(1993).



              In Reed, the defendant filed a motion under Rule 32.1(b) of the West Virginia

Rules of Criminal Procedure seeking early release from probation. The defendant served a

copy of the motion, which included a date that the motion would be heard by the circuit

court, on the State. However, before the date of the hearing the circuit court entered an order

releasing the defendant from probation. The State subsequently filed a petition for writ of

prohibition with this Court seeking to preclude enforcement of the order. In that proceeding,

the State argued that it was entitled to both notice and an opportunity to be heard before the

circuit court resolved the motion. This Court initially observed that Rule 32.1(b) did not

expressly provide for the State to be given notice and an opportunity to be heard.15 However,

the Court found that, in light of other rules, it was clear that notice and an opportunity to be

heard was required. The opinion addressed the matter as follows:


              15
                The rule was subsequently amended to expressly provide for notice and an
opportunity to be heard.

                                              10

[U]nder Rule 49(a) of the West Virginia Rules of Criminal
Procedure, the parties in a criminal proceeding are required to
serve written motions on each other. Under Rule 32(a)(1) of the
West Virginia Rules of Criminal Procedure, when sentencing is
initially considered by the court, “[t]he attorney for the state
shall have an equivalent opportunity [as the defendant and
counsel] to speak to the court.”

       Moreover, Rule 32(c)(3)(C) of the West Virginia Rules
of Criminal Procedure, which relates to the presentence
investigation and report to the court, provides that any material
in the report “which [is] disclosed to the defendant and his
counsel shall be disclosed to the attorney for the state.” . . .

       ....

       Under the provisions of the West Virginia Rules of
Criminal Procedure, we conclude that Rule 49(a), which
requires notice to be served on the other party, Rule 32(c)(3)(C),
which grants to the prosecuting attorney the right to review
presentence information, and Rule 32(a)(1), which grants to the
prosecuting attorney the right to address the court regarding
sentencing, carry the implied right on the part of the prosecuting
attorney to be heard where a defendant seeks a favorable
modification of the terms of probation. . . .

       Consequently, we hold that when a defendant moves to
obtain a favorable modification of the terms of probation under
Rule 32.1(b) of the West Virginia Rules of Criminal Procedure,
the prosecuting attorney is entitled to reasonable notice of the
motion for modification and an opportunity to be heard.

        The respondent judge's failure to accord an opportunity
to the prosecuting attorney to be heard and entry of the order
without a hearing were acts beyond his legitimate powers and
are, therefore, subject to prohibition. . . .




                               11

Reed, 189 W. Va. at 57-59, 427 S.E.2d at 752-54 (footnote omitted). The decision in Reed

controls our resolution of whether notice and opportunity to be heard is required under Rule

35(a).



              As previously noted, Rule 35(a) does not expressly provide for the State to

receive notice and have an opportunity to be heard. However, as Reed pointed out, Rule

49(a) of the West Virginia Rules of Criminal Procedure requires written motions be served

on all parties.16 See also State v. Dorisio, 189 W. Va. 788, 795, 434 S.E.2d 707, 714 (1993)

(noting that Rule 49(a) requires that “[w]ritten motions . . . shall be served upon each of the

parties[.]”).17 Further, as noted in Reed, Rule 32(c)(3) requires the court to give the State an




              16
                   Rule 49(a) provides as follows:

                               (a) Service: When Required – Written
                        motions other than those which are heard ex parte,
                        written notices, designations of record on appeal,
                        and similar papers shall be served upon each of
                        the parties.
              17
                See also United States v. Esekhigbe, Crim. No. H-05-0354-1, 2012 WL
2361733, at *1 n.1 (S.D. Tex. June 20, 2012) (“Defendant filed a subsequent pro se amended
motion, but failed to serve the Government. Consequently, the amended motion is not before
the Court.”); Morgan v. State, 359 Ark. 168, 177, 195 S.W.3d 889, 895 (2004) (“The record
reveals that Appellant attempted to file several pro se motions, but was not allowed to do so
because of his failure to serve the State with copies of the motions.”); State v. Bohanna, No.
16-CA-81, 2017 WL 3207976 at *2 (Ohio Ct. App. July 27, 2017) (“[T]he trial court . . .
denied Appellant’s motion for leave, as a blanket motion, finding Appellant had not served
the motion(s) upon any other party in the case, pursuant to Criminal Rule 49.”).

                                               12

opportunity to be heard before a defendant is sentenced.18 See also Seward v. Hane, 882

N.W.2d 874, at *4 (Iowa Ct. App. 2016) (“[T]he State . . . was entitled to notice and an

opportunity to be heard.”); State v. Heinz, 146 Ohio St. 3d 374, 380, 56 N.E.3d 965, 972

(2016) (“[A]s the state’s legal representative, the prosecuting attorney is entitled to proper


              18
                   Rule 32(c)(3) provides as follows:

                     (3) Imposition of Sentence. – Before imposing sentence,
              the court must:

                      (A) verify that the defendant and defendant's counsel
              have read and discussed the presentence report made available
              under subdivision (b)(6)(A). If the court has received
              information excluded from the presentence report under
              subdivision (b)(5) the court in lieu of making that information
              available must summarize it in writing, if the information will
              be relied on in determining sentence. The court must also give
              the defendant and the defendant's counsel a reasonable
              opportunity to comment on that information;

                     (B) afford defendant's counsel an opportunity to speak on
              behalf of the defendant;

                     (C) address the defendant personally and determine
              whether the defendant wishes to make a statement and to present
              any information in mitigation of sentence;

                     (D) afford the attorney for the state an opportunity
              equivalent to that of the defendant's counsel to speak to the
              court; and

                     (E) if sentence is to be imposed for a crime of violence
              or sexual abuse, address the victim personally if the victim is
              present at the sentencing hearing and determine if the victim
              wishes to make a statement or present any information in
              relation to the sentence.

                                               13

notice and an opportunity to appear and be heard at proceedings in which the state is a

party[.]”). In light of our decision in Reed and the requirements of Rule 32(c)(3) and Rule

49(a), we now hold that 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.



              The record is quite clear in showing that the State did not receive notice and

an opportunity to be heard on Mr. Wilkerson’s motion to reduce his sentence. Consequently,

prohibition is appropriate to preclude enforcement of the circuit court’s order reducing Mr.

Wilkerson’s sentence. On remand, the circuit court must afford the State an opportunity to

be heard on the merits of Mr. Wilkerson’s converted Rule 35(a) motion.



                     B. Jurisdictional Time Limitation in Rule 35(b)

              The State contends that Mr. McFarland’s Rule 35(b) motion was untimely;

therefore, the circuit court lacked jurisdiction to reduce his sentence.19 Mr. McFarland argues


              19
                 Mr. McFarland filed his Rule 35(b) motion on December 17, 2014. However,
the circuit court’s order erroneously stated that it was granting relief based upon a Rule 35
motion filed by Mr. McFarland on May 19, 2010. The record clearly shows that Judge Recht
entered a final order on June 7, 2010, that denied Mr. McFarland relief under Rule 35(a) and
Rule 35(b). Therefore, the circuit court could not base its ruling on the May 19, 2010,
motion, because it was previously resolved on the merits by Judge Recht. In fact, in this
proceeding Mr. McFarland has not argued that he sought relief under the May 19, 2010,
motion. It is obvious to this Court that the circuit court was attempting to circumvent the
                                                                                (continued...)

                                              14

that the time limitation in Rule 35(b) is not jurisdictional; therefore, the circuit court had

authority to grant him relief under the rule.20 We disagree with Mr. McFarland.



              We begin by examining the text of the relevant rules. Rule 35(b) provides in

part as follows:




              19
                (...continued)
time limitation set out under Rule 35(b) by reviving a motion that already had been resolved
and final. Consequently, our analysis of Mr. McFarland’s Rule 35(b) motion will be based
upon the motion he filed on December 17, 2014.
              20
                Mr. McFarland has also argued that this Court does not have authority to
create procedural rules that are jurisdictional. According to Mr. McFarland, only the
legislature can enact procedural rules that are jurisdictional. Mr. McFarland has not cited to
any authority holding that this Court’s constitutional rule-making authority is limited to
creating non-jurisdictional rules. See Syl. pt. 5, State v. Wallace, 205 W. Va. 155, 517 S.E.2d
20 (1999) (“The West Virginia Rules of Criminal Procedure are the paramount authority
controlling criminal proceedings before the circuit courts of this jurisdiction; any statutory
or common-law procedural rule that conflicts with these Rules is presumptively without force
or effect.”); Syl. pt. 1, Stern Brothers, Inc. v. McClure, 160 W.Va. 567, 236 S.E.2d 222
(1977) (“Under Article VIII, Section 8 [and Section 3] of the Constitution of West Virginia
(commonly known as the Judicial Reorganization Amendment), administrative rules
promulgated by the Supreme Court of Appeals of West Virginia have the force and effect of
statutory law and operate to supersede any law that is in conflict with them.”). It is true that
many of the time periods in rules promulgated by this Court are not jurisdictional. See, e.g.,
Syl. pt. 3, Crea v. Crea, 222 W. Va. 388, 664 S.E.2d 729 (2008) (“Rule 28(a) of the West
Virginia Rules of Practice and Procedure for Family Court is not jurisdictional and may be
extended for good cause.”). However, this does not mean that we do not have authority to
promulgate rules with time periods that are jurisdictional. See, e.g., Syl. pt. 3, Roberts v.
Consolidation Coal Co., 208 W. Va. 218, 539 S.E.2d 478 (2000) (“‘The requirement of Rule
59(b) of the Rules of Civil Procedure that a motion for a new trial shall be served not later
than ten days after entry of the judgment is mandatory and jurisdictional. The time required
for service of such a motion cannot be extended by the court or by the parties.’ Syllabus
point 1, Boggs v. Settle, 150 W. Va. 330, 145 S.E.2d 446 (1965).”).

                                              15

                      (b) Reduction of sentence. – A motion to reduce a
              sentence may be made, or the court may reduce a sentence
              without motion within 120 days after the sentence is imposed or
              probation is revoked, or within 120 days after the entry of a
              mandate by the supreme court of appeals upon affirmance of a
              judgment of a conviction or probation revocation or the entry of
              an order by the supreme court of appeals dismissing or rejecting
              a petition for appeal of a judgment of a conviction or probation
              revocation. The court shall determine the motion within a
              reasonable time. . . .

The 120-day limitation on filing a motion under Rule 35(b) is addressed in Rule 45(b)(2) of

the West Virginia Rules of Criminal Procedure as follows:

                    (b) Enlargement. – When an act is required or allowed to
              be done at or within a specified time, the court for cause shown
              may at any time in its discretion:

                     ....

                     (2) Upon motion made after the expiration of the
              specified period, permit the act to be done if the failure to act
              was the result of excusable neglect; but the court may not extend
              the time for taking any action under Rules 29, 33, 34 and 35,
              except to the extent and under the conditions stated in them.

(Emphasis added).



              It is clear that Rule 35(b) imposes a 120-day limitation on filing a motion under

it, and Rule 45(b)(2) prohibits enlargement of that time period. We have previously upheld

circuit court rulings denying motions under Rule 35(b) as being untimely filed. See Barritt

v. Painter, 215 W. Va. 120, 122, 595 S.E.2d 62, 64 (2004) (“[T]he Appellant’s [Rule 35(b)]

motion was untimely and properly denied by the lower court.”); See also State v. Stephens,

                                             16

No. 15-0291, WL 765746, at *2 (W. Va. Feb. 26, 2016) (mem. dec.) (“[P]etitioner’s January

27, 2015, motion was untimely filed under Rule 35(b), which requires that a motion for a

reduction of sentence be filed within 120 days after imposition of the same.”); State v. Cline,

No. 14-1098, 2015 WL 3694312, at *2 (W. Va. June 15, 2015) (mem. dec.) (“Petitioner

missed the deadline to file a motion for reduction of sentence by approximately ninety

days.”); State v. Harris, No. 13-1073, 2014 WL 4693602, at *2 (W. Va. Sept. 22, 2014)

(mem. dec.) (“Further, it is clear that petitioner's motion for reduction of sentence was

untimely.”); State v. Redman, No. 13-0225, 2014 WL 1272553, at *3 (W. Va. Mar. 28, 2014)

(mem. dec.) (“Petitioner’s attempt to reduce his sentence based on these factors failed to

meet the time limits found in Rule 35(b) and the circuit court was correct in failing to

consider them.”); Cook v. Plumley, No. 12-1348, 2013 WL 6184030, at *2 (W. Va. Nov. 26,

2013) (mem. dec.) (“[P]etitioner’s probation was revoked in April of 2005, but his Rule

35(b) motion to reduce his sentence that is the subject of the present appeal was not filed

until September of 2011, well beyond the 120-day limitation required by the statute and our

case law.”); State v. Brooks, No. 12-0454, 2013 WL 2300973, at *2 (W. Va. May 24, 2013)

(mem. dec.) (“Rule 35(b) of the West Virginia Rules of Criminal Procedure clearly states that

a motion for reduction of sentence must be made within 120 days after sentence is imposed.

It is undisputed that petitioner failed to meet this deadline, and the circuit court was correct

to deny the motion as untimely, to the extent petitioner sought a reduction of sentence.”);

Mugnano v. Ballard, No. 11-0464, 2012 WL 3030871, at *2 (W. Va. June 29, 2012) (mem.


                                              17

dec.) (“this Court concludes that the circuit court did not abuse its discretion in denying Mr.

Mugnano’s Rule 35(b) motion as untimely filed[.]”). However, we have not been previously

called upon to decide whether the time period in Rule 35(b), read in conjunction with Rule

45(b)(2), is a jurisdictional limitation. As an issue of first impression, we turn to federal

decisions that have squarely addressed the issue.



              Federal courts have addressed the jurisdiction issue in the context of similar

prior versions of federal Rule 35(b) and federal Rule 45(b).21 In United States v. Hill, 826

F.2d 507 (7th Cir. 1987), the Seventh Circuit succinctly addressed the issue as follows:

              Rule 35(b) grants only 120 days in which to file, and
              Fed. R. Crim. P. 45(b) forbids the enlargement of this period.
              The 120-day period is jurisdictional. . . . Under a former version
              of Rule 35(b), the 120 days was a limit on the judge’s power to
              reduce the sentence. . . . Now only the filing deadline is
              jurisdictional. Either way, Rule 45(b) establishes that the
              deadline is inflexible. . . . Hill missed the deadline, and missing
              a jurisdictional deadline deprives the court of power to act. . . .

Id. 826 F.2d at 508 (internal citations omitted). It has been said that “the 120-day limit for

filing a Rule 35(b) motion is jurisdictional and cannot be waived or extended.” Silano v.

United States, 621 F. Supp. 1103, 1105 (E.D.N.Y. 1985). See also United States v.

Addonizio, 442 U.S. 178, 189, 99 S. Ct. 2235, 2242-43, 60 L. Ed. 2d 805 (1979) (“Federal



              21
                The current version of federal Rule 35(b) is now substantively different from
our rule. The current version of federal Rule 45(b), while worded differently, is substantively
the same as our rule.

                                              18

Rule Crim. Proc. 35 now authorizes district courts to reduce a sentence within 120 days after

it is imposed or after it has been affirmed on appeal. The time period, however, is

jurisdictional and may not be extended.”); United States v. Hudson, 9 F.3d 104 (5th Cir.

1993) (“As Hudson does not allege that his sentence was illegal, Rule 35(b)’s jurisdictional

time limit on such claims bars them.”); United States v. Jay, 979 F.2d 849 (4th Cir. 1992)

(“The 120-day limit of Rule 35(b) is jurisdictional.”); United States v. Foley, 983 F.2d 1073

(7th Cir. 1992) (“The limit established by Rule 35(b) was jurisdictional.”); United States v.

Stump, 914 F.2d 170, 172 (9th Cir. 1990) (“The time limit prescribed by Rule 35 is

jurisdictional, and unless the 120 day requirement is met, the court has no jurisdiction or

power to alter sentence.” (internal quotations and citation omitted)); In re United States, 898

F.2d 1485, 1486 (11th Cir. 1990) (“The time period is jurisdictional; consequently, a court

may not extend the 120-day period and is without jurisdiction to entertain a Rule 35(b)

motion filed after the period expires.”), superseded by rule on other grounds as recognized

by United States v. Orozce, 160 F.3d 1309, 1313 (1998); United States v. Smith, 839 F.2d

175, 182 (3d Cir. 1988) (“[W]e do not consider whether Smith failed to meet the 120-day

requirement of Rule 35(b), which is jurisdictional and cannot, under any circumstances, be

extended by order of the court.”); United States v. Gomez-Soto, No. CR-82-0561-SC, 1994

WL 507719, at *1 (N.D. Cal. Aug. 29, 1994) (“The time limit prescribed by Rule 35(b) is

jurisdictional, and unless the 120 day requirement is satisfied, the court has no jurisdiction

or power to alter the sentence.”), aff’d in part, vacated in part, 68 F.3d 481 (9th Cir. 1995);


                                              19

United States v. Howard, No. Crim. 92-00074-01-SD, 1994 WL 258630, at *2 n.4 (D.N.H.

Jan. 20, 1994) (“The 120-day time limitation of former Rule 35(b) is jurisdictional and may

not be extended.”); United States v. Urdaneta, 771 F. Supp. 28, 35 (E.D.N.Y. 1991) (“Under

Rule 35(b) as it provided prior to November 1, 1987, a motion to reduce a sentence could be

made within 120 days after the sentence was imposed or probation was revoked, a time

period which is jurisdictional, and may not be extended.”); Sparks v. United States, Nos. 91 C

851 & 89 CR 149-5, 1991 WL 83562, at *1 (N.D. Ill. May 10, 1991) (“In its letter this Court

told Sparks accurately that it had no jurisdiction under Fed.R.Crim.P. (Rule) 35(b) to grant

such relief because his request had come far outside of the jurisdictional 120-day time

limit[.]”); United States v. Young, No. 86-386, 1991 WL 55819, at *6 (E.D. La. Apr. 8, 1991)

(“It is well established that [t]he 120-day time limit stated in Rule 35(b) is jurisdictional and

cannot under any circumstances be extended by the court.” (internal quotations and citation

omitted)); United States v. Sinclair, 702 F. Supp. 477, 479 (D. Del. 1989) (“A Rule 35(b)

motion must be made within 120 days from the imposition of sentence or its affirmance on

appeal. The 120-day time period is jurisdictional and cannot be extended by order of a

court.”); United States v. Williams, No. 79-13, 1988 WL 2146, at *1 (E.D. Pa. Jan. 12, 1988)

(“The time limits of Rule 35(b) are jurisdictional. If the motion is untimely under the rule and

the sentence is a lawful one, the court is powerless to act.”); United States v. Dickenson, 673

F. Supp. 2, 3 (D. Me. 1987) (“The import of the jurisdictional content of the Rule 35

requirement is that the Court loses jurisdiction over the sentence for purposes of modification


                                               20

pursuant to the Rule if a timely motion for modification of the sentence is not filed within

the 120-day period specified.”); United States v. Nevarez-Diaz, 648 F. Supp. 1226, 1229

(N.D. Ind. 1986) (“It is well settled that the 120-day time limit of Rule 35(b) is jurisdictional

in nature and, as such, cannot be extended by the sentencing court.”); United States v. Lee,

382 F. Supp. 292, 295 (S.D.W. Va. 1974) (“The 120-day time limitation stated in Rule 35

is jurisdictional and cannot, under any circumstances, be extended by order of the court.”).



              Although we are not bound by the interpretation federal courts placed on a

former version of its Rule 35(b), we find the decisions of those courts persuasive on the

question of jurisdiction.22 See State v. Sutphin, 195 W.Va. 551, 563, 466 S.E.2d 402, 414

(1995) (“[W]e have repeatedly recognized that when codified procedural rules . . . of West

Virginia are patterned after the corresponding federal rules, federal decisions interpreting

those rules are persuasive guides in the interpretation of our rules.” (citations omitted)).

Consequently, we hold that 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.


              22
               We have previously declined to follow federal courts in resolving a different
issue under Rule 35(b). See State v. Head, 198 W. Va. 298, 304, 480 S.E.2d 507, 513 (1996)
(“Given the history of federal Rule 35(b), we find the federal interpretations of their former
Rule 35(b) have limited persuasive value in determining a ‘reasonable period’ under our Rule
35(b).”).

                                               21

              In the instant proceeding, the record shows that Mr. McFarland’s petition for

appeal of his original sentencing order was refused by this Court on January 28, 2010. Under

the terms of Rule 35(b), Mr. McFarland had 120 days from the date of the denial of his

petition for appeal to file a motion for reduction of his sentence. However, the Rule 35(b)

motion that Mr. McFarland relied upon to obtain relief was filed on December 17, 2014,

nearly four years after his petition for appeal was denied. This motion clearly was untimely.

Therefore, the circuit court was without jurisdiction to rule on the merits of the motion.

Consequently, prohibition is appropriate to prevent enforcement of the circuit court’s order

reducing Mr. McFarland’s original sentence.



                                             IV.


                                      CONCLUSION


              The petition for a writ of prohibition in case No. 17-0275 is granted. The

circuit court is prohibited from enforcing its order reducing the criminal sentence of Mr.

Wilkerson. This case is remanded for the circuit court to give the State notice of a hearing

and an opportunity to be heard on the motion to correct Mr. Wilkerson’s sentence. In case

No. 17-0214, the petition for a writ of prohibition is granted. The circuit court is prohibited

from enforcing its order reducing the criminal sentence of Mr. McFarland. Finally, this case

is remanded with instructions to dismiss Mr. McFarland’s Rule 35(b) motion as untimely

filed.


                                              22

     Writs granted.




23
