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No. 21-0490 – State v. Keefer

WOOTON, J., concurring, in part, and dissenting, in part:

I concur in the majority’s affirmance of the denial of petitioner’s Rule 35(b) 

motion. Without the necessity of a new point of law, it is clear that petitioner’s sentencing 

order states that her “sentencing date” was January 12, 2021. It is from that date that the 

Rule’s 120-day time limitation began to run and therefore her motion was untimely. For 

that reason, 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 unfairly disadvantaged. For these reasons, 

I respectfully dissent to the majority’s new syllabus point.

The majority premises its decision to issue an opinion and new point of law 

without Rule 20 oral argument on the language of Rule 18(a) of the West Virginia Rules 

of Appellate Procedure, which provides that oral argument is unnecessary where 1) the 

parties have waived oral argument or 2) the issue is adequately presented in the briefs and 

record and the “decisional process” would not be aided by oral argument. However, neither 

of those are decidedly present here. Although the State did indicate in its brief that oral 

argument was unnecessary, it included the caveat that the case was “appropriate for 

FILED

November 9, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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resolution by memorandum decision.” As is well-established, memorandum decisions 

carry no threat of a new point of law because it stands in contrast to “an opinion.” See Rule 

21(c) and (d) (providing that the memorandum decision must contain a “concise” statement 

of the reason for the decision and why it is suitable for “a memorandum decision instead 

of an opinion.”). Therefore, the State relented on oral argument under its presumption that 

a memorandum decision that resolved this case largely on the merits of the underlying Rule 

35(b) motion would issue.

As to the adequacy of the briefing, the majority’s position that the 120-day 

limitation should run from the date the sentence is orally pronounced is essentially 

untested. Critically, in its brief, the State effectively conceded error on this issue. Rather 

than arguing in support of the circuit court’s method of calculation—the method adopted 

by the majority in a new syllabus point—the State side-stepped the timeliness of the motion

and argued that the circuit court’s “error” was harmless because the motion itself was 

meritless. Presumably then, the State likewise believed that the calculation of the 120-day 

deadline should run from the entry of the sentencing order as posited by petitioner, contrary 

to the majority’s new holding. See W. Va. R. App. P. 10(d) (“If the respondent’s brief fails 

to respond to an assignment of error, the Court will assume that the respondent agrees with 

the petitioner’s view of the issue.”). Accordingly, the majority has adopted wholesale a 

position that was not advocated for by any party to the underlying case. As a result, this 
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issue of first impression lacks any true adversarial testing—a problem that could have at 

least been mitigated through oral argument.1

And while there would have been nothing improper about the Court’s 

undertaking of this issue of first impression upon oral argument, the matter was better 

addressed through rule amendment. Rarely does the Court have an opportunity to simply 

change that which is unclear; however, ambiguity in its own Rules can be easily clarified

through rule amendment. See Bennett v. Warner, 179 W.Va. 742, 372 S.E.2d 920 (1988), 

superceded by statute on other grounds as stated in Miller v. Allman, 240 W. Va. 438, 813 

S.E.2d 91 (2018) (“Under article eight, section three of our Constitution, the Supreme 

Court of Appeals shall have the power to promulgate rules for all of the courts of the State 

related to process, practice, and procedure, which shall have the force and effect of law.”); 

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 

1 Placing this case on the Rule 20 argument docket may also have yielded amicus 

curiae briefing by interested parties, which would further inform the Court of the 

implications of any ruling.
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that conflicts with these Rules is presumptively without force or effect.”). In fact, this is 

precisely how the federal system resolved the issue.2

 

The rule-making process allows all interested parties to comment during a 

public comment period and better informs the Court of the potential ramifications of any 

proposed changes. Certainly, the Court would benefit from practitioners and judges around 

the State enlightening it about the common practice and resulting implications of a potential 

change in how the Rule 35(b) 120-day deadline is calculated. As the Court has observed,

[t]he Judicial Reorganization Amendment, Article VIII, 

Section 3, of the Constitution, placed heavy responsibilities on 

this Court for administration of the state's entire court system. 

2 Regarding the 2004 amendment of Federal Rule of Criminal Procedure 35 to 

clarify the phrase “imposition of sentence,” the advisory committee note provides:

Originally, the language in Rule 35 had used the term 

“imposition of sentence.” The term “imposition of sentence” 

was not defined in the rule and the courts addressing the 

meaning of the term were split. The majority view was that the 

term meant the oral announcement of the sentence and the 

minority view was that it meant the entry of the judgment. See 

United States v. Aguirre, 214 F.3d 1122, 1124-25 (9th Cir. 

2000) (discussion of original Rule 35(c) and citing cases). 

During the restyling of all of the Criminal Rules in 2000 and 

2001, the Committee determined that the uniform term 

“sentencing” throughout the entire rule was the more 

appropriate term. After further reflection, and with the 

recognition that some ambiguity may still be present in using 

the term “sentencing,” the Committee believes that the better 

approach is to make clear in the rule itself that the term 

“sentencing” in Rule 35 means the oral announcement of the 

sentence. That is the meaning recognized in the majority of the 

cases addressing the issue.

Fed. R. Crim. P. 35 advisory committee’s note to the 2004 amendment, in part.
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The mandate of the people, so expressed, commands the 

members of the Court to be alert to the needs and requirements 

of the court system throughout the state.

State ex rel. Bagley v. Blankenship, 161 W.Va. 630, 644-45, 246 S.E.2d 99, 107 (1978); 

see also State v. Sheffield, ___ W. Va. ___, ___ n.11, 875 S.E.2d 321, 331 n.11 (W. Va. 

2022) (observing that significant changes to the West Virginia Rules of Criminal Procedure 

“cannot be made in the context of a judicial opinion; rather, it must occur through our 

normal rule-making process.”). It is simply unnecessary to adopt this new reading of the 

Rule through an opinion, without oral argument or adversarial briefing, in order to 

implement this interpretation of the Rule or to affirm the result reached in the instant case.

The danger in approaching the issue in this manner is demonstrated by the 

underlying case itself. Under the majority’s reasoning, petitioner is foreclosed from 

seeking a reduction in her sentence because of this Court’s new interpretation of its own 

rule of criminal procedure. By applying its new syllabus point to petitioner, the majority 

has enacted a retroactive change to the law. However, the majority fails to analyze the 

propriety of a retroactive change to a non-constitutional rule of criminal procedure which 

definitively disadvantages defendants by shortening the period of time in which they may 

file Rule 35(b) motions. See Andrew I. Haddad, Cruel Timing: Retroactive Application of 

State Criminal Procedural Rules to Direct Appeals, 116 Colum. L. Rev. 1259, 1261 (2016) 

(“[C]ourts that use [a] case-specific [retroactivity] analysis almost never find a newly 

declared state rule of criminal procedure to be sufficiently important to the fact-finding 
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process as to merit retroactive application to criminal cases on direct review.” (footnotes 

omitted)).

This Court has held that, “a judicial decision in a criminal case is to be given 

prospective application only if: (a) It established a new principle of law; (b) its retroactive

application would retard its operation; and (c) its retroactive application would produce 

inequitable results.” Syl. Pt. 5, State v. Blake, 197 W.Va. 700, 478 S.E.2d 550 (1996). 

Because the majority failed to adopt its new syllabus point prospectively only, any 

defendant who relied on the date of his or her sentencing order, rather than the earlier 

hearing date, to dictate when a Rule 35(b) motion was due will now be procedurally barred 

from seeking a reduction of sentence under this case. This runs contrary to this Court’s 

precedent in the treatment of changes to procedural rules. See Blake, 197 W. Va. at 713, 

478 S.E.2d at 563 (“[B]ecause Neuman clarified applicable procedural law only, and not 

substantive or constitutional law, it should be given prospective application only.”); State 

v. Byrd, 163 W. Va. 248, 253, 256 S.E.2d 323, 325 (1979), holding modified by State ex 

rel. Aaron v. King, 199 W. Va. 533, 485 S.E.2d 702 (1997) (“The subject matter of the rule 

not rising to a constitutional dimension such rule will be applied to this case and 

prospectively only.”). 

Perhaps more importantly, because this new ruling negatively affects 

defendants’ ability to seek relief from their penalties by potentially shortening their time 

frame for filing, its retroactivity raises potential ex post facto concerns. See U. S. Const. 
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art. I, § 10, cl. 1; W. Va. Const. art. III, § 4; see also State v. R. H., 166 W. Va. 280, 289, 

273 S.E.2d 578, 584 (1980), overruled on other grounds by State ex rel. Cook v. Helms, 

170 W. Va. 200, 292 S.E.2d 610 (1981) (“[P]rocedural changes can be ex post facto 

depending on their effect on the accused.” (citing U. S. v. Henson, 486 F.2d 1292 (D. C.

Cir.1973))). This Court has observed that 

the ex post facto prohibition extends to any alteration, even one 

labeled procedural, “which in relation to the offense or its 

consequences, alters the situation of a party to his 

disadvantage.” It has also been stated that no substantial right 

which the law gives an accused at the time of the commission 

of the offense to which his guilt relates can be taken away from 

him ex post facto, merely by calling it a law of procedure.

Id. at 289, 273 S.E.2d at 584 (emphasis added) (citations omitted).

The potential widespread impact of the majority’s new rule and its failure to 

ameliorate that impact by making its new syllabus point prospective only compels me to 

dissent to the majority opinion. Although I agree that petitioner’s Rule 35(b) motion was 

untimely because her sentencing date was clearly stated in the order, I believe it would 

have been more judicious to implement a clarification to Rule 35 through our rule-making 

process. Accordingly, I respectfully concur, in part, and dissent, in part.