Rule 35(b) in West Virginia: No Entitlement to Appointed Experts and Concise Orders Can Suffice — State v. Jeffery

Introduction

In State of West Virginia v. Joey Keith Jeffery, No. 23-538 (Kanawha County 13-F-223), the Supreme Court of Appeals of West Virginia issued a memorandum decision on September 10, 2025, affirming the Circuit Court of Kanawha County’s denial of a motion to reduce sentence under Rule 35(b) of the West Virginia Rules of Criminal Procedure. The case arises from Mr. Jeffery’s 2014 convictions for kidnapping (life without mercy), malicious wounding, second-degree robbery, and assault during the commission of a felony.

On appeal, the self-represented petitioner advanced two principal claims: (1) the circuit court erred by not securing an expert medical witness to evaluate his health in support of leniency; and (2) the court’s order denying relief was inadequately reasoned because it lacked detailed findings of fact and conclusions of law. The State, represented by the Attorney General, argued for affirmance.

The Supreme Court held that Rule 35(b) does not entitle a movant to appointment of an expert, particularly where the movant neither requested one below nor cited any West Virginia authority supporting such an appointment in this context. It further held that, although Rule 35 does not explicitly require findings of fact and conclusions of law, the succinct order here—incorporating by reference the record and the arguments presented—was sufficient to permit meaningful appellate review.

Summary of the Opinion

• Standard of Review: The Court applied the three-pronged standard from State v. Head, 198 W. Va. 298, 480 S.E.2d 507 (1996): abuse of discretion for the Rule 35(b) ruling, clearly erroneous for factual findings, and de novo for legal questions and rule interpretation.
• Nature of Rule 35(b): A Rule 35(b) motion is “essentially a plea for leniency from a presumptively valid conviction” (Head), and appellate review is limited, absent abuse of discretion (State v. Goff, 206 W. Va. 516, 509 S.E.2d 557 (1998)).
• No Right to Appointed Expert: The petitioner cited no applicable authority for appointing a medical expert in support of a Rule 35(b) motion, did not request one below, and his reliance on federal capital cases (Ake v. Oklahoma and Barefoot v. Estelle) was inapposite.
• Adequacy of Order: Although Rule 35 does not explicitly require findings (State v. Redman, 213 W. Va. 175, 578 S.E.2d 369 (2003)), trial courts must provide enough to permit review (Fayette County Nat. Bank v. Lilly, 199 W. Va. 349, 484 S.E.2d 232 (1997)). The order’s reference to review of “the record, the circumstances, and the arguments set forth” sufficiently incorporated the relevant considerations.
• Outcome: Affirmed. No substantial question of law or prejudicial error; memorandum decision under W. Va. R. App. P. 21.

Case Background and Procedural Posture

• Convictions and Sentences: On February 2, 2014, a jury convicted Mr. Jeffery of kidnapping (life without mercy), malicious wounding (2–10 years), second-degree robbery (5–18 years), and assault during commission of a felony (2–10 years), imposed to run concurrently. He was resentenced July 24, 2014, to re-establish appeal deadlines after a mailing issue.
• Timely Rule 35(b) Filing: On July 22, 2014, within 120 days of the initial sentencing, he filed a motion to reduce his sentence pursuant to Rule 35(b). The motion remained pending for an extended period and was judicially reassigned in March 2023, when counsel was appointed. The circuit court allowed supplementation in June 2023, specifically noting that considering events outside the 120-day filing period would serve the ends of justice and not usurp the role of the parole board.
• Amended Motion: In August 2023, Mr. Jeffery supplemented his motion, emphasizing remorse, good institutional conduct, work history, significant health problems allegedly inadequately addressed in prison, and strong community support for reentry.
• Denial and Appeal: The circuit court denied relief on August 22, 2023, finding the “previously ordered sentence is proper.” Mr. Jeffery appealed, raising the expert-appointment and sufficiency-of-order issues. The Supreme Court affirmed.

Detailed Analysis

Precedents Cited and Their Influence

• State v. Head, 198 W. Va. 298, 480 S.E.2d 507 (1996)
  Head provides the foundational framework for reviewing Rule 35 motions: abuse of discretion for the ultimate decision; clearly erroneous for factual findings; de novo for legal questions. Importantly, Head characterizes a Rule 35(b) motion as a plea for leniency flowing from a valid conviction, underscoring the limited role of appellate courts and the broad discretion of sentencing courts when considering post-sentencing mitigation, rehabilitation, or changed circumstances.
• State v. Goff, 206 W. Va. 516, 509 S.E.2d 557 (1998)
  Goff reinforces the deferential posture: as a general rule, Rule 35 motions are not reviewable absent abuse of discretion. That principle guards against converting a leniency proceeding into a second direct appeal of the sentence.
• State v. Redman, 213 W. Va. 175, 578 S.E.2d 369 (2003)
  Redman clarifies that Rule 35 does not explicitly require findings of fact and conclusions of law. However, it must still be read alongside the general principle—drawn from Lilly—that trial court rulings should permit meaningful appellate review. Here, the Court held that the circuit court’s references to having reviewed the record and the arguments sufficed to meet that threshold.
• Fayette County Nat. Bank v. Lilly, 199 W. Va. 349, 484 S.E.2d 232 (1997)
  Though a civil case, Lilly’s insistence that trial court rulings ordinarily include findings adequate to allow meaningful appellate review informs Rule 35(b) practices. The Court applied that principle flexibly here, effectively authorizing incorporation by reference when the record and motion materials make clear what was considered.
• United States v. Martin, 916 F.3d 389 (4th Cir. 2019)
  Martin involved federal sentence-modification under 18 U.S.C. § 3582(c)(2)—a statutory scheme with its own requirements and a well-developed appellate jurisprudence insisting on adequate explanations tied to the federal § 3553(a) factors. The West Virginia Supreme Court correctly found Martin inapposite: West Virginia’s Rule 35(b) is not the state analog of § 3582(c)(2), and the West Virginia Rules do not impose the same explanatory demands.
• Ake v. Oklahoma, 470 U.S. 68 (1985), and Barefoot v. Estelle, 463 U.S. 880 (1983) (superseded in part by statute)
  These cases address constitutional entitlements to expert assistance in capital cases—Ake at the guilt phase where sanity is a significant factor, and Barefoot at capital sentencing. The Court properly held that such capital-case due process concerns do not carry over to a discretionary, post-sentencing request for leniency under Rule 35(b), where liberty interests have already been adjudicated and the conviction is presumptively valid.

Legal Reasoning

1. No right to an appointed medical expert in Rule 35(b) proceedings
   The petitioner argued that a medical expert was “determinative” for his leniency request. The Court identified two fatal flaws:
   • Absence of authority: The petitioner cited no West Virginia authority supporting appointment of an expert for a Rule 35(b) motion.
   • Preservation: The record did not show that he ever requested such an appointment in the circuit court. Failure to request relief below ordinarily forecloses appellate review.
   Because Rule 35(b) proceedings are not focused on adjudicating factual guilt or constitutional deprivation but on discretionary sentencing leniency, the constitutional expert-appointment doctrines from Ake and Barefoot do not apply. Moreover, the circuit court had before it medical records submitted by the petitioner and stated it reviewed the record and arguments. The Supreme Court found no abuse of discretion in denying relief.
2. Adequacy of the circuit court’s succinct order
   The petitioner contended that the order lacked detailed findings. The Court balanced two principles:
   • Rule 35 does not explicitly require findings (Redman),
   • Trial court rulings generally must contain enough to permit meaningful appellate review (Lilly).
   The order specifically stated the court had reviewed “the record, the circumstances, and the arguments set forth” and concluded “the previously ordered sentence is proper.” Given that the motion and record comprehensively set out the petitioner’s mitigation (remorse, work history, programming, medical issues, and support network), the reference functioned as an incorporation by reference of those materials. The Supreme Court concluded that, in context, this satisfied the “meaningful review” requirement.
3. Overall posture: Abuse-of-discretion review of a plea for leniency
   Rule 35(b) motions are reviewed deferentially. The trial judge is uniquely positioned to weigh the original offense conduct, the sentencing objectives (punishment, deterrence, incapacitation, rehabilitation), and any post-sentencing developments, including health and institutional conduct. The Court reiterated the longstanding view that unless the record suggests arbitrary or capricious decision-making, denials of Rule 35(b) relief will be affirmed.

Procedural Nuances Worth Noting

• Timeliness and supplementation: The original motion was filed within 120 days of sentencing, as Rule 35(b) requires. Years later, the circuit court allowed supplementation and expressly considered events “outside the 120-day filing period,” noting that doing so would serve the ends of justice and “would not usurp the role of the parole board.” The Supreme Court did not disturb that approach here. This reflects the understanding that, where a timely Rule 35(b) motion remains pending, courts may consider subsequent developments, provided they do not convert Rule 35(b) into a substitute for parole.
• Memorandum decision: The Court proceeded under W. Va. R. App. P. 21, concluding that the appeal presented no substantial question of law and no prejudicial error. Although a memorandum decision, it is a clear reaffirmation of governing principles about Rule 35(b) practice.

Impact and Practical Implications

• Appointments of experts in Rule 35(b) proceedings: Defendants should not expect court-appointed experts to develop mitigation for a Rule 35(b) motion, absent a specific statutory or rule-based entitlement. Where health is at issue, movants should marshal medical records, affidavits, and other documentary evidence. If a movant believes expert testimony is necessary, the request should be made in the circuit court and supported by on-point West Virginia authority; otherwise, the argument is unlikely to be preserved.
• Drafting orders denying Rule 35(b) relief: Trial courts need not issue lengthy findings, but should include language showing actual consideration of the motion, the record, and the pertinent circumstances. Incorporation by reference—as occurred here—can satisfy the “meaningful review” function. That said, more detailed orders remain a best practice, particularly when unique mitigation is presented or when a movant raises discrete legal arguments about the scope of the court’s authority.
• Reliance on federal analogies: Federal § 3582(c) decisions (like Martin)—which often require individualized explanations tied to § 3553(a) factors—do not control Rule 35(b) practice in West Virginia. Parties should ground their arguments in West Virginia precedent.
• Scope of Rule 35(b) vs. parole: Rule 35(b) provides a judicial avenue for leniency shortly after sentencing, not an ongoing review mechanism analogous to parole. Courts may consider post-sentencing conduct when a timely motion remains pending, but they should avoid “usurping the role of the parole board.” In cases involving life without mercy, parole eligibility is not at issue, which narrows—but does not eliminate—the range of leniency arguments available.
• Preservation of issues: The Court’s observation that the petitioner did not request an expert below highlights a recurring lesson: preservation matters. Litigants should make necessary requests at the circuit court level and cite West Virginia authority to support them.

Complex Concepts Simplified

• Rule 35(b) motion: A request made within 120 days after sentencing (or within other limited timeframes specified by the rule) asking the sentencing judge to reduce the sentence. It is not a re-litigation of guilt or a typical legal error appeal, but a plea for leniency considering circumstances such as rehabilitation, health, or other equitable factors.
• Standards of review:
  • Abuse of discretion: The appellate court will reverse only if the lower court’s decision was arbitrary, capricious, or irrational.
  • Clearly erroneous: Factual findings will stand unless the appellate court has a firm conviction that a mistake has been made.
  • De novo: Questions of law are reviewed anew, without deference.
• “Life without mercy”: In West Virginia, for certain offenses the jury may recommend “mercy” (parole eligibility after a prescribed period) or not. “Life without mercy” means no parole eligibility under the life sentence. Concurrent finite terms may exist, but the life term without mercy controls parole eligibility on that count.
• Memorandum decision under Rule 21: The Supreme Court’s streamlined disposition used when the case presents no substantial legal question and no prejudicial error. It affirms existing law rather than forging new precedent.
• Distinguishing federal sentence-modification: 18 U.S.C. § 3582(c)(2) allows federal courts to reduce sentences when the Sentencing Commission retroactively lowers a guideline range. West Virginia’s Rule 35(b) is a court-rule-based leniency mechanism, not a statutory sentence recalibration regime. Different obligations and explanatory burdens apply.
• Ake/Barefoot expert-appointment rights: These are capital-case due process decisions ensuring expert assistance when mental health is a significant factor at trial or capital sentencing. They do not extend to discretionary, post-sentencing sentence-reduction requests like Rule 35(b).

What the Court Did Not Decide

• The Court did not announce a categorical rule that all terse orders are adequate; rather, it found this order adequate because it explicitly referenced the record and the motion’s arguments, which in this case comprehensively set forth the mitigation and health claims.
• The Court did not address the outer bounds of considering post-sentencing conduct when a timely Rule 35(b) motion remains pending; it simply did not disturb the circuit court’s allowance of supplementation here.
• The Court did not decide whether, or to what extent, a judge can alter specific verdict-dependent sentencing attributes (such as a jury’s “mercy” determination) under Rule 35(b); that issue was not presented or analyzed.

Practice Pointers

• For defense counsel and movants:
  • File Rule 35(b) motions within 120 days and develop a robust record: medical records, programming certificates, disciplinary history, letters of support, and reentry plans.
  • If expert opinion is truly necessary, move for appointment in the circuit court and support the motion with applicable West Virginia authority; do not rely on inapposite federal or capital-case precedents.
  • Request the court to acknowledge in its order the specific factors presented if you foresee an appeal on the sufficiency of the order; while not required, such detail may help on review.
• For prosecutors:
  • Emphasize the deferential standard and the “plea for leniency” characterization of Rule 35(b).
  • Distinguish federal § 3582(c) jurisprudence and underscore that Rule 35(b) is not a mechanism to revisit jury-determined features (e.g., mercy) or to supplant parole considerations.
• For trial judges:
  • While extended findings are not obligatory, consider including a short paragraph noting the categories of material reviewed (e.g., offense circumstances, institutional conduct, medical evidence, support letters), which will typically satisfy “meaningful review.”
  • When considering post-sentencing conduct on a long-pending, timely Rule 35(b) motion, briefly explain how that consideration does not intrude on the parole board’s role.

Conclusion

The Supreme Court’s memorandum decision in State v. Jeffery reaffirms core principles governing Rule 35(b) practice in West Virginia. First, there is no entitlement to court-appointed experts to support a discretionary plea for leniency under Rule 35(b), especially where such relief was not requested in the circuit court and is unsupported by West Virginia authority. Second, while Rule 35 does not explicitly mandate findings and conclusions, an order that demonstrates the court’s consideration of “the record, the circumstances, and the arguments set forth” can suffice to permit meaningful appellate review.

Against the highly deferential abuse-of-discretion standard, and given the nature of Rule 35(b) as a limited mechanism for post-sentencing leniency, the Court found no error in the circuit court’s denial. The decision provides clear guidance to litigants and courts: develop the mitigation record thoroughly, preserve requests and legal arguments at the trial level, avoid reliance on inapposite federal sentencing jurisprudence, and ensure that orders—however succinct—reflect consideration of the materials presented. In doing so, Jeffery promotes clarity and efficiency in West Virginia’s sentence-reduction practice while maintaining appropriate boundaries between judicial leniency and the functions of parole.

Citation

State v. Jeffery, No. 23-538 (W. Va. Sept. 10, 2025) (memorandum decision), affirming the Kanawha County Circuit Court’s August 22, 2023 order denying Rule 35(b) relief.