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 firsthand 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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