State of West Virginia v. Terry Lee Hughes ( 2023 )

FILED
February 14, 2023
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
STATE OF WEST VIRGINIA OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia,
Plaintiff Below, Respondent
vs.) No. 21-0587 (Nicholas County 17-F-33)
Terry Lee Hughes,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Terry Lee Hughes appeals the order of the Circuit Court of Nicholas County,
entered on June 29, 2021, denying his motion for reduction of sentence. 1 Upon our review, we
determine that oral argument is unnecessary and that a memorandum decision affirming the circuit
court’s order is appropriate. See W. Va. R. App. P. 21.
In 2017, the State indicted petitioner in the Circuit Court of Nicholas County on a single
count of first-degree murder. On August 14, 2019, during the second day of trial, the parties
reached a plea agreement, pursuant to which petitioner pled no contest to second-degree murder.
Petitioner also waived the preparation of a presentence investigation report. Accordingly, on that
same date, the circuit court found that “there is no reason not to proceed to sentencing.” The circuit
court sentenced petitioner to a determinate term of forty years of incarceration and remanded him
into custody “for the execution of the sentence.” 2 The circuit court later memorialized petitioner’s
sentence in a sentencing order entered on September 16, 2019, giving him 982 days of credit for
time served.
1
Petitioner is self-represented. The State of West Virginia appears by counsel Attorney
General Patrick Morrisey and Assistant Attorney General Lara K. Bissett.
2
West Virginia Code § 61-2-3 provides, in pertinent part, that second-degree murder “shall
be punished by a definite term of imprisonment in the penitentiary which is not less than ten nor
more than forty years.”
1
On January 8, 2020, petitioner filed a motion seeking to reduce his sentence, pursuant to
Rule 35(b) of the West Virginia Rules of Criminal Procedure, 3 arguing that the circumstances of
his case warranted a reduction of his forty-year sentence. The circuit court, by order entered on
June 29, 2021, denied petitioner’s motion finding that “the sentence is appropriate due to the
seriousness of the crime committed by [petitioner].” 4 It is from this order petitioner appeals.
This Court has previously held as follows:
“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 Criminal 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
law and interpretations of statutes and rules are subject to a de novo review.” Syl.
Pt. 1, State v. Head, 198 W. Va. 298, 480 S.E.2d 507 (1996).
Syl. Pt. 1, State v. Marcum, 238 W. Va. 26, 792 S.E.2d 37 (2016).
On appeal, we need not resolve the parties’ dispute as to whether the circuit court erred in
denying petitioner’s Rule 35(b) motion on its merits. “This Court may, on appeal, affirm the
judgment of the lower court when it appears that such judgment is correct on any legal ground
disclosed by the record, regardless of the ground, reason or theory assigned by the lower court as
the basis for its judgment.” Syl. Pt. 4, White v. Haines, 215 W. Va. 698, 601 S.E.2d 18 (2004)
(quoting Syl. Pt. 3, Barnett v. Wolfolk, 149 W. Va. 246, 140 S.E.2d 466 (1965)).
We recently held:
“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.” Syllabus point 2, State ex rel. State v. Sims, 239 W. Va. 764,
806 S.E.2d 420 (2017).
3
While petitioner titled his motion as seeking reconsideration of his sentence, Rule 35(b)
of the West Virginia Rules of Criminal Procedure provides, in pertinent part:
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 . . . . The court shall determine the motion within
a reasonable time. Changing a sentence from a sentence of incarceration to a grant
of probation shall constitute a permissible reduction of sentence under this
subdivision.
4
In addition to denying petitioner’s motion for reduction of sentence, the circuit court also
denied two other motions filed by petitioner. Petitioner does not challenge these denials on appeal.
2
A sentence is “imposed” for purposes of Rule 35(b) of the West Virginia
Rules of Criminal Procedure when the sentence is verbally pronounced at the
sentencing hearing. Accordingly, a motion to reduce a sentence under Rule 35(b)
is timely when it is filed within 120 days after the sentence is pronounced at a
sentencing hearing.
Syl. Pts. 3 and 4, State v. Keefer, No. 21-0490, ___ W. Va. ___, 880 S.E.2d 106 (Nov. 4, 2022). 5
The circuit court pronounced petitioner’s sentence at the August 14, 2019, sentencing
hearing. Petitioner filed his motion for reduction of sentence on January 8, 2020, which was 147
days after the pronouncement of his sentence. 6 Therefore, as petitioner failed to file his motion
within the 120-day time frame set forth in Rule 35(b), the circuit court did not have jurisdiction to
entertain the motion.
Even if the motion were timely filed, based upon our review of the record, we find that the
circuit court did not abuse its discretion in not holding a hearing on petitioner’s Rule 35(b) motion.
See State v. King, 205 W. Va. 422, 425, 518 S.E.2d 663, 666 (1999). We further find that the circuit
court’s finding, that petitioner’s forty-year sentence was appropriate due to the seriousness of his
crime, was sufficient to support the denial of the Rule 35(b) motion as it is clear from the record
that petitioner fails to cite any event that occurred after sentencing that would warrant a reduction
in his sentence. 7 Marcum, 238 W. Va. at 32, 792 S.E.2d at 43; see State v. Redman, 213 W. Va.
175, 180, 578 S.E.2d 369, 374 (2003) (rejecting that the argument that there were insufficient
findings to permit meaningful appellate review of the denial of a Rule 35(b) motion).
Accordingly, we conclude that the circuit court did not abuse its discretion in denying petitioner’s
5
As we noted in State v. Keefer, No. 21-0490, ___ W. Va. ___, 880 S.E.2d 106 (Nov. 4,
2022), “[g]enerally, an order is effective when a court announces it.” Slip Op., at 8 (quoting Syl.
Pt. 1, Moats v. Preston Cnty. Comm’n, 206 W. Va. 8, 521 S.E.2d 180 (1999)). Moreover, “[a]n
oral order has the same force, effect, and validity in the law as a written order. In other words, the
actual physical possession of a written order is not required to effectuate said order.” Id., at 9(quoting Syl. Pt. 2, Moats, 206 W. Va. at 10, 521 S.E.2d at 182).
6
“Once the triggering event is established, Rule 45(a) of the West Virginia Rules of
Criminal Procedure governs computation of the time frame.” State v. Keefer, No. 21-0490, ___ W.
Va. ___, ___ n.2, 880 S.E.2d 106, ___ n.2 (Nov. 4, 2022).
7
In Syllabus Point 5 of Head, we held:
When considering [Rule] 35(b) motions, circuit courts generally should
consider only those events that occur within the 120-day filing period; however, as
long as the circuit court does not usurp the role of the parole board, it may consider
matters beyond the filing period when such consideration serves the ends of justice.
198 W. Va. at 299, 480 S.E.2d at 508.
3
Rule 35(b) motion for reduction of sentence.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: February 14, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice C. Haley Bunn
DISSENTING:
Justice William R. Wooton
Wooton, Justice, dissenting:
I respectfully dissent, as I believe that State v. Keefer, __ W. Va. __, 880 S.E.2d 106(2022), the precedent upon which the majority relies, was wrongly decided insofar as it
announced a new rule of law – one which disadvantaged a criminal defendant by reducing
the time within which a motion can be filed pursuant to Rule 35(b) of the West Virginia
Rules of Criminal Procedure – and applied it retroactively to the defendant/petitioner in
that case. 1 As I noted in my concurring and dissenting opinion,
it was both unnecessary and imprudent to issue a new point of
law to dispose of this matter without the benefit of oral
argument. Because Rule 35 is a court rule, clarifications or
changes of the rules which threaten to have widespread effect
are best undertaken through rule amendment after an
appropriate period of public comment. At a minimum, the
majority’s new point of law should have expressly been made
to operate prospectively only, lest countless defendants be
1
I concurred in the Court’s judgment in Keefer because under the particular facts
and circumstances of that case, the petitioner had actual notice that the 120-day time
limitation for filing his Rule 35(b) motion would begin to run on January 12, 2021. Keefer,
__ W. Va. at __, 880 S.E.2d at 113 (Wooton, J., concurring, in part, and dissenting, in part).
4
unfairly disadvantaged.
Keefer, __ W. Va. at __, 880 S.E.2d at 113 (Wooton, J., concurring, in part, and dissenting,
in part) (emphasis added).
Our precedents counsel that a new principle of law cannot be applied retroactively
if such application “would retard its operation . . . [and] would produce inequitable results.”
Syl. Pt. 5, in part, State v. Blake, 197 W. Va. 700, 478 S.E.2d 550 (1996). In the instant
case, it cannot be gainsaid that retroactive application of Keefer, a decision which was
issued some five months after the circuit court denied relief in the instant case, is
inequitable. At the time petitioner filed his Rule 35(b) motion, when the pendency of the
Keefer opinion was not on anyone’s radar as it had never been set for oral argument,
petitioner had every reason to believe that his motion, filed within 120 days of entry of the
circuit court’s sentencing order, was timely.
In retroactively applying a non-constitutional rule of criminal procedure which
disadvantages a criminal defendant, 2 this Court has placed itself outside well-established
jurisprudence in both state and federal courts. “[C]ourts that use case-specific
[retroactivity] analysis almost never find a newly declared state rule of criminal procedure
to be sufficiently important to the fact-finding process as to merit retroactive application to
criminal cases on direct review.” Andrew I. Haddad, Cruel Timing: Retroactive
Application of State Criminal Procedural Rules to Direct Appeals, 116 Colum. L. Rev.
1259, 1261 (2016) (emphasis added). Further, both in Keefer and in the instant case, the
majority appears wholly indifferent to the serious ex post facto concerns raised by its
retroactive application of a new rule “‘which in relation to the offense or its consequences,
alters the situation of a party to his disadvantage.’” State v. R.H., 166 W. Va. 280, 289, 273
S.E.2d 578, 584 (1980) (citation omitted), overruled on other grounds by State ex rel. Cook
v. Helms, 170 W. Va. 200, 292 S.E.2d 610 (1981). Finally, the result in this case is
particularly unfair in that the circuit court decided petitioner’s Rule 35 motion on the
merits. Nonetheless, the majority resolved the case on the basis of a brand-new procedural
rule that the parties never had the opportunity to argue, since the rule didn’t yet exist at the
time this appeal was perfected.
In my view, the Court’s decision today is, at best, manifestly unfair to the petitioner,
and at worst, violative of article III, section 4 of the West Virginia Constitution. For these
reasons, I respectfully dissent.
There can be no serious argument that shortening the time limit within which a
2
criminal defendant can seek any form of post-trial relief is not a disadvantage.
5