State of West Virginia v. James Wilkerson ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia,
Plaintiff Below, Respondent FILED
December 7, 2020
vs.) No. 19-0471 (Ohio County 09-F-10) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
James Wilkerson,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner James Wilkerson, by counsel John M. Jurco, appeals the order of the Circuit
Court of Ohio County, entered on April 17, 2019, denying his “motion for relief from sentence.”
Respondent State of West Virginia, appears by counsel Patrick Morrisey and Benjamin F. Yancey
III.
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 affirming the order of the circuit court is appropriate under Rule 21 of
the Rules of Appellate Procedure.
In 2011, Petitioner James Wilkerson, described in his brief as a person of color, was
sentenced to a determinate term of forty years of incarceration in the West Virginia State
Penitentiary for each of his two convictions of robbery in the first degree, for an effective term of
eighty years, along with concurrent terms of two to ten years for his conviction of assault and one
to five years for his conviction of conspiracy. Mr. Wilkerson committed these crimes when he was
twenty years old, together with an eighteen-year-old codefendant described by Mr. Wilkerson as
Caucasian. The codefendant entered a midtrial Alford 1 plea to two counts of robbery in the second
degree, prior to Mr. Wilkerson’s trial, and was sentenced to two consecutive terms of five to
eighteen years of incarceration in the West Virginia State Penitentiary.
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See North Carolina v. Alford, 400 U.S. 25 (1970) and Kennedy v. Frazier, 178 W. Va.
10, 12, 357 S.E.2d 43, 45 (1987) (“The Supreme Court held that there is no bar to imposing a
prison sentence upon an accused who is unwilling to admit guilt but who is willing to waive trial
and accept the sentence. An accused may voluntarily, knowingly and understandingly consent to
the imposition of a prison sentence even though he is unwilling to admit participation in the crime,
if he intelligently concludes that his interests require a guilty plea and the record supports the
conclusion that a jury could convict him”).
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We upheld Mr. Wilkerson’s criminal conviction in State v. Wilkerson, 230 W. Va. 366,
738 S.E.2d 32 (2013). In that case, the Court described how Mr. Wilkerson and his codefendant,
in equal measure, approached two male victims at a playground in Wheeling and repeatedly
punched and kicked the victims to unconsciousness. The victims surrendered a wallet and a cell
phone to their attackers. The victims each were thirteen years old.
We revisited the circumstances of Mr. Wilkerson’s incarceration in Wilkerson v. Ballard,
No. 16-0689, 2017 WL 5513613 (W. Va. Nov. 17, 2017) (memorandum decision)(affirming the
denial of Mr. Wilkerson’s petition for writ of habeas corpus) and State ex rel. State v. Sims, 239
W. Va. 764, 806 S.E.2d 420 (2017)(remanding the circuit court’s order granting Mr. Wilkerson’s
first Rule 35 motion to allow the State an opportunity to be heard). The matter is before us now on
the circuit court’s denial, by order entered on April 17, 2019, of Mr. Wilkerson’s second Rule 35
motion, which challenged his sentence as illegally disproportionate to that of his codefendant’s. 2
Petitioner argued to the circuit court that his codefendant received a more favorable sentence based
on his race. In denying this motion, the circuit court found that Mr. Wilkerson’s sentence was
disparate from the codefendant, but not unlawfully so. The court recognized that Mr. Wilkerson
chose to proceed to trial and was then convicted of four out of the five counts on which he was
indicted, as opposed to his codefendant’s two convictions, which were pled to lesser offenses. The
2
Mr. Wilkerson did not include a copy of his motion in the appendix record on appeal.
According to the circuit court’s order, Mr. Wilkerson filed the motion on January 12, 2018. In his
brief, Mr. Wilkerson refers to the motion as one for “relief” from sentence. The circuit court refers
to the motion as one to “reduce” the sentence pursuant to Rule 35(a). Rule 35 provides:
(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 time period
provided herein for the reduction of sentence.
(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. Changing a sentence from a sentence of incarceration to a grant of probation
shall constitute a permissible reduction of sentence under this subdivision.
W. Va. R. Crim. P. 35. Respondent refers to the motion as a Rule 35(a) motion and has not called
the timeliness of the motion into question. Because the circuit court specifically refers to the
legality of Mr. Wilkerson’s sentence, we proceed with the understanding that the matter before us
is the denial of a Rule 35(a) motion. We also note that Mr. Wilkerson filed the Rule 35 motion that
is now before us after we remanded the circuit court’s granting of his earlier-filed Rule 35(b)
motion, converted by the circuit court to a Rule 35(a) motion, to allow the State an opportunity to
be heard. See Sims, 239 W. Va. at 769, 806 S.E.2d at 425.
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court also recognized that Mr. Wilkerson was arrested for a separate offense after the robbery of
the two boys, but before his trial.
In his appeal, Mr. Wilkerson asserts a single assignment of error. He argues that the circuit
court erred in denying his motion because, he explains, his sentence violates the cruel and unusual
punishment and equal protection provisions of the West Virginia and United States Constitutions.
We consider petitioner’s assignment of error under the following directive:
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).
Having reviewed the facts presented to us under this standard, we find no error in the circuit
court’s denial of petitioner’s Rule 35 motion. The circuit court adequately explained that it
employed the principle that
[d]isparate 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.
Syl. Pt. 2, State v. Buck, 173 W. Va. 243, 314 S.E.2d 406 (1984). Though the evidence suggests
that Mr. Wilkerson was no more culpable than his codefendant in the heinous attack of thirteen-
year-old boys, Mr. Wilkerson and his codefendant are not similarly situated. The circuit court set
forth multiple valid bases for its conclusion, but we emphasize a single decisive factor: Mr.
Wilkerson’s convictions included two counts of robbery in the first degree, while his codefendant
pled guilty to two counts of robbery in the second degree, a lesser offense. Concentrating on this
point, we find that petitioner’s “claim of disparate sentencing is untenable given the guilty pleas
and subsequent convictions to two separate and distinct offenses by [petitioner] and the
codefendant. . . .” State v. Watkins, 214 W. Va. 477, 481, 590 S.E.2d 670, 674 (2003).
For the foregoing reasons, we affirm.
Affirmed.
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ISSUED: December 7, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
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