State of West Virginia v. Emily J. Keefer

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2022 Term
_____________
FILED
November 4, 2022
No. 21-0490 released at 3:00 p.m.
_____________ EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
State of West Virginia,
Plaintiff Below, Respondent,
V.
Emily J. Keefer,
Defendant Below, Petitioner.
________________________________________________
Appeal from the Circuit Court of Berkeley County
The Honorable Laura Faircloth, Judge
Criminal Action No. CC-02-2020-F-62
AFFIRMED
________________________________________________
Filed: November 4, 2022
Dylan K. Batten, Esq. Patrick Morrisey, Esq.
Public Defender Attorney General
Martinsburg, West Virginia Andrea Nease Proper, Esq.
Attorney for the Petitioner Assistant Attorney General
Charleston, West Virginia
Attorneys for the Respondent
JUSTICE BUNN delivered the Opinion of the Court.
JUSTICE WOOTON concurs in part, dissents in part, and reserves the right to file a
separate opinion.
SYLLABUS BY THE COURT
1. “Generally, an order is effective when a court announces it.” Syllabus
point 1, Moats v. Preston County Commission, 206 W. Va. 8, 521 S.E.2d 180 (1999).
2. “An 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.” Syllabus point 2, Moats v. Preston County Commission,
206 W. Va. 8, 521 S.E.2d 180 (1999).
3. “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).
4. 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.
i
Bunn, Justice:
Petitioner, Emily J. Keefer (“Ms. Keefer”), appeals an order of the Circuit
Court of Berkeley County, entered on May 19, 2021, denying her motion to reduce her
sentence pursuant to Rule 35(b) of the West Virginia Rules of Criminal Procedure. Rule
35(b) provides, in relevant part, that “[a] motion to reduce a sentence may be
made . . . within 120 days after the sentence is imposed[.]” Ms. Keefer claims the circuit
court erred by finding her motion was untimely when it was filed within 120 days of the
circuit court’s entry of its sentencing order. The circuit court calculated the 120-day period
for Ms. Keefer’s Rule 35(b) motion from the sentencing hearing, when the sentence was
verbally pronounced, and concluded that her motion was filed outside that time frame.
Upon review of the parties’ briefs, the record submitted on appeal, and the pertinent
authorities, we agree with the circuit court and conclude that a sentence is “imposed” for
purposes of Rule 35(b) when the sentence is verbally pronounced at a sentencing hearing.
Therefore, we affirm the denial of Ms. Keefer’s Rule 35(b) motion as untimely.
I.
FACTUAL AND PROCEDURAL HISTORY
Ms. Keefer was indicted by a Berkeley County Grand Jury in February 2020
for committing four felony offenses1 while she was employed as a corrections officer at
Ms. Keefer was indicted for one count of conspiracy to violate West
1
Virginia Code § 61-5-8(g)(1), which prohibits possession of contraband in jail by an
1
the Eastern Regional Jail and Corrections Facility. In accordance with a plea agreement
she entered with the State, Ms. Keefer agreed to plead guilty to one count of conspiracy to
violate West Virginia Code § 61-5-8(g)(1), which prohibits possession of contraband in
jail by an inmate, in violation of West Virginia Code § 61-10-31; and one count of
accepting a bribe in violation of West Virginia Code § 61-5A-3. In turn, the State agreed
to dismiss the remaining charges. Although the State retained the right to present certain
evidence pertinent to sentencing, it agreed to make no recommendation regarding the
sentence to be imposed. The circuit court accepted Ms. Keefer’s guilty plea on November
10, 2020.
A sentencing hearing was held on January 12, 2021, during which Ms. Keefer
requested home confinement or, in the alternative, concurrent sentences. The circuit court
denied both requests and imposed consecutive sentences of not less than one nor more than
five years for the conspiracy conviction, and not less than one nor more than ten years for
the bribery conviction, for an aggregate term of not less than two nor more than fifteen
years. The circuit court verbally pronounced the sentence during the hearing. Subsequently,
the sentence was memorialized in a “Final Sentencing Order” entered on January 19, 2021.
inmate, in violation of West Virginia Code § 61-10-31; one count of accepting a bribe in
violation of West Virginia Code § 61-5A-3; one count of conspiracy to violate West
Virginia Code § 60A-4-401(a)(ii), which prohibits possession with intent to deliver
buprenorphine, in violation of West Virginia Code § 60A-4-414; and one count of
transporting a controlled substance into jail in violation of West Virginia Code § 61-5-
8(c)(1).
2
The written order expressly stated that Ms. Keefer’s effective sentencing date was January
12, 2021.
On March 22, 2021, Ms. Keefer filed an initial motion to reduce her sentence
pursuant to Rule 35(b) of the West Virginia Rules of Criminal Procedure. The circuit court
denied the motion on the merits by order entered on March 25, 2021. Ms. Keefer filed a
second Rule 35(b) motion to reduce her sentence on May 17, 2021. By order entered on
May 19, 2021, the circuit court found Ms. Keefer’s second motion was not timely as it was
filed more than 120 days after the sentencing hearing held on January 12, 2021. The circuit
court also held that had the motion been timely, it would still deny Ms. Keefer’s motion on
the merits.
This appeal followed, and Ms. Keefer raises the single question of whether
the period of “120 days after the sentence is imposed,” as set forth in Rule 35(b), is
calculated from the sentencing hearing at which the circuit court verbally pronounces the
sentence or from the date of the order memorializing the previously-announced sentence. 2
Ms. Keefer does not request oral argument of this case, “given the nature of the issue at bar
and given the fact that there does not appear to be a need for factual development.” The
State similarly opines that “oral argument is unnecessary because the facts and legal
2
Once the triggering event is established, Rule 45(a) of the West Virginia
Rules of Criminal Procedure governs computation of the time frame.
3
arguments are adequately presented in the briefs and the record in this case,” and suggests
the case “is appropriate for resolution by memorandum decision.” See W. Va. R. App. P.
21(a) (“At any time after a case is mature for consideration, the . . . Supreme Court may
issue a memorandum decision addressing the merits of the case.”). While we agree that
oral argument is unnecessary, we find this case is not appropriate for resolution by
memorandum decision due to the need to clarify the proper application of Rule 35(b).
Accordingly, in these very limited circumstances involving a purely legal question
addressing the proper application of a procedural rule of this Court, with adequately
presented facts and waiver of oral argument by the parties, we exercise our discretion to
issue a signed opinion without oral argument. See W. Va. R. App. P. 18(a) (acknowledging
that oral argument is unnecessary when “(1) all of the parties have waived oral argument;
or . . . (4) the facts and legal arguments are adequately presented in the briefs and record
on appeal, and the decisional process would not be significantly aided by oral argument.”).
II.
STANDARD OF REVIEW
We generally apply a three-part test when reviewing a circuit court’s decision
on a Rule 35(b) motion for reduction of a sentence.
“‘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
4
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).” Syllabus Point 1, State v. Collins, 238 W. Va.
123, 792 S.E.2d 622 (2016).
Syl. pt. 1, State v. Walker, 244 W. Va. 61, 851 S.E.2d 507 (2020). In this instance, the
relevant facts are undisputed, and we are presented with a purely legal query involving the
interpretation of a rule of procedure. “[O]ur review is plenary on . . . issues . . . pertaining
to the interpretation of state statutes and court rules.” State v. Davis, 236 W. Va. 550, 554,
782 S.E.2d 423, 427 (2015). See also Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va.
138, 459 S.E.2d 415 (1995) (“Where the issue on an appeal from the trial court is clearly a
question of law or involving an interpretation of a statute, we apply a de novo standard of
review.”). Based on this authority, we review de novo the issue presented concerning the
interpretation of Rule 35(b).
III.
DISCUSSION
Under the circuit court’s interpretation of Rule 35(b), a sentence is imposed
for purposes of the 120-day time frame when the defendant’s sentence is verbally
announced at the sentencing hearing. Ms. Keefer argues that this interpretation of Rule
35(b) is clearly erroneous. She contends that, because a circuit court speaks only through
its orders, the 120-day time frame does not begin until the sentencing order is entered. See,
5
e.g., State ex rel. Erlewine v. Thompson, 156 W. Va. 714, 718, 207 S.E.2d 105, 107 (1973)
(“A court of record speaks only through its orders[.]”). The State responds that, if the circuit
court’s application of the Rule 35(b) time frame was erroneous, such error was harmless
given the circuit court’s ruling that it would also deny the motion on the merits.
Ms. Keefer’s reliance on the principle that a court of record speaks only
through its orders is misplaced, because she takes that rule out of its proper context. Viewed
correctly, this legal tenet is largely based on the role of an appellate court as a court of
review that is limited to the record created below:
“It is essential that there has been a decision of an inferior
court, since an appellate court is, on appeal, a court of review
and not a court of first instance, exercising jurisdiction only in
reviewing the rulings of the trial court, and being limited to a
review of the judgment, order, or decree of the court from
which the appeal is taken.”
Wells v. Roberts, 167 W. Va. 580, 586, 280 S.E.2d 266, 270 (1981) (quoting City of
Huntington v. Chesapeake & Potomac Tel. Co., 154 W. Va. 634, 639, 177 S.E.2d 591, 595
(1970), and declining to address an issue that was not raised in the lower court). 3 The
3
See also Taylor v. W. Va. Dep’t of Health & Hum. Res., 237 W. Va. 549,
558, 788 S.E.2d 295, 304 (2016) (“We caution circuit courts, however, that the burden of
issuing an order which meets this Court’s requirements, which requirements are designed
to permit meaningful appellate review, ultimately remains on the circuit court. It is
incumbent on the trial court to determine if the submitted order accurately reflects the court
ruling given that it is well-established that ‘[a] court of record speaks only through its
orders [.]’ State ex rel. Erlewine v. Thompson, 156 W. Va. 714, 718, 207 S.E.2d 105, 107
(1973).”). We similarly have commented that
6
principle that a circuit court speaks through its orders has been applied in appeals where,
for example, there is a conflict between the order being appealed and an oral statement by
the lower court; 4 a circuit court judge has filed an improper response to an appeal;5 an issue
was not properly presented to and considered by a circuit court;6 good cause for a
[t]he importance of the careful compilation and maintenance
of complete and accurate records to our judicial system and
appellate process can scarcely be overemphasized. “A court of
record speaks only through its orders[.]” State ex rel. Erlewine
v. Thompson, 156 W. Va. 714, 718, 207 S.E.2d 105, 107
(1973) (citations omitted). Furthermore, “[c]ourts of record can
speak only by their records, and what does not so appear does
not exist in law.” Syllabus Point 3, Hudgins v. Crowder and
Freeman, Inc., 156 W. Va. 111, 191 S.E.2d 443 (1972).
State ex rel. Core v. Merrifield, 202 W. Va. 100, 116, 502 S.E.2d 197, 213 (1998) (per
curiam). See also Certegy Check Servs., Inc. v. Fuller, 241 W. Va. 701, 705, 828 S.E.2d
89, 93 (2019) (“A circuit court speaks through its written orders, which, as a rule, must
contain the requisite findings of fact and conclusions of law to permit meaningful appellate
review.” (quotations and citation omitted)).
4
In re A.C., No. 20-0441, 2020 WL 7259202, at *6 (W. Va. Dec. 10, 2020)
(memorandum decision) (observing that “‘where a circuit court’s written order conflicts
with its oral statement, the written order controls.’” (quoting Tennant v. Marion Health
Care Found., Inc., 194 W. Va. 97, 107 n.5, 459 S.E.2d 374, 384 n.5 (1995))).
5
In re I.S.A., 244 W. Va. 162, 165 n.7, 852 S.E.2d 229, 232 n.7 (2020)
(declining to consider on appeal a responsive pleading from the presiding circuit court
judge).
6
Stephens v. W. Va. Coll. of Grad. Stud., 203 W. Va. 81, 88, 506 S.E.2d 336,
343 (1998) (per curiam) (relying, in part, on principle that a court of record speaks only
through its orders in declining to address issue not raised in circuit court).
7
continuance was not established by a court order; 7 and a party sought to compel a circuit
court judge to testify regarding the manner in which an official proceeding had been
conducted. 8 Likewise, a stipulation or other non-record evidence may not be used to
contradict an order on appeal. See State ex rel. Mynes v. Kessel, 152 W. Va. 37, 52, 158
S.E.2d 896, 906 (1968) (finding that, absent fraud, mistake, or conflicts appearing in the
record, a stipulation cannot “be entertained or considered by this Court to contradict the
provisions of the orders. This Court has held in numerous cases that courts of record can
speak only by their record and what does not so appear does not exist in law.”).
Outside the context of appellate review, we have found in certain
circumstances that “[g]enerally, an order is effective when a court announces it.” Syl. pt.
1, Moats v. Preston Cnty. Comm’n, 206 W. Va. 8, 521 S.E.2d 180 (1999). Moats addressed
whether the county commission was “immune from suit and liability for damages . . . under
the West Virginia Governmental Tort Claims and Insurance Reform Act . . . by reason of
enforcing and executing [an] order of the mental hygiene commissioner” when the Sheriff
7
Powers v. Trent, 129 W. Va. 427, 427, 40 S.E.2d 837, 837 (1946) (holding,
at Syllabus point 2, that “[c]ourts of record can speak only by their record and what does
not so appear does not exist in law,” and declining to find on appeal that good cause for
continuance existed where no good cause was reflected in the appellate record).
8
State ex rel. Kaufman v. Zakaib, 207 W. Va. 662, 671, 535 S.E.2d 727, 736
(2000) (“The prohibition against compelling the testimony of a judge is reflected in a long-
standing principle of our jurisprudence, namely, that a court speaks only through its
orders.”).
8
executing the order did not have possession of a written order. Id. at 12, 521 S.E.2d at 184.
The Court found there was immunity and held that “[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.” Syl. pt. 2, id.We have similarly recognized that “‘[o]ne may be charged with contempt for
violating a court’s order, of which he has actual knowledge, notwithstanding that at the
time of the violation the order had not yet been formally drawn up.’ Syllabus Point 2,
Hendershot v. Handlan, 162 W. Va. 175, 248 S.E.2d 273 (1978).” Syl. pt. 3, State ex rel.
Walker v. Giardina, 170 W. Va. 483, 294 S.E.2d 900 (1982). See also Syl. pt. 2, in part,
State v. Farmer, 173 W. Va. 285, 315 S.E.2d 392 (1983) (“[A] police officer may always
make a warrantless arrest for a felony committed in his presence or when there is an
outstanding warrant for the individual arrested, although the warrant may not be in the
possession of the arresting officer.”). Based on this Court’s precedent, the principle that a
court of record speaks only through its orders does not apply as broadly as Ms. Keefer
argues, and we find the rule has no application in determining the proper interpretation of
Rule 35(b). Having disposed of Ms. Keefer’s theory, we now analyze Rule 35(b).
The 120-day period set out in Rule 35(b) is jurisdictional: “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
9
filed outside the 120-day filing period set out under that rule.” Syl. pt. 2, State ex rel. State
v. Sims, 239 W. Va. 764, 806 S.E.2d 420 (2017). Furthermore, “Rule 45(b)(2) [of the West
Virginia Rules of Criminal Procedure] prohibits enlargement of that time period.” Id. at
771, 806 S.E.2d at 427. However, we have not definitively identified when the 120-day
period is triggered. According to Rule 35(b),
[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(b) (emphasis added). Given the forgoing language, to resolve Ms.
Keefer’s appeal we must determine when a “sentence is imposed” for purposes of Rule
35(b).
Several federal courts addressing when a sentence is imposed in contexts
other than federal Rule 35(b) have determined that a sentence is imposed when it is orally
pronounced. See, e.g., United States v. Montoya, 48 F.4th 1028, 1034 (9th Cir. 2022)
(explaining that “[t]he imposition of a sentence occurs at the sentencing hearing, so the
district court must orally pronounce a sentence”); United States v. Nix, No. 6:14-CR-06181
10
EAW, 2022 WL 1746775, at *3 (W.D.N.Y. May 31, 2022) (observing that, for purposes
of § 403(b) of the federal First Step Act of 2018, “‘a sentence is “imposed” when the district
court orally pronounces it’” (quoting United States v. Eldridge, 2 F.4th 27, 40 (2d Cir.
2021))); United States v. Pettaway, No. 4:06 CR 98, 2021 WL 5566158, at *11 (E.D. Va.
Nov. 29, 2021) (recognizing that “the Fourth Circuit has interpreted the plain language of
§ 401(c) and § 403(b) [of the First Step Act] . . . as being ‘triggered’ as soon as a district
court orally imposes a sentence, rejecting claims by defendants that a sentence is not
‘imposed’ until it has been reviewed on appeal and finalized”); Young v. United States, 943
F.3d 460, 463 (D.C. Cir. 2019) (acknowledging that, “[i]n standard usage, . . . a sentence
is ‘imposed’ when the district court passes sentence on a defendant”); United States v.
Davis, 924 F.3d 899, 905 n.4 (6th Cir. 2019) (commenting “we have strongly implied that
a sentence is imposed when it is orally pronounced”).
Additionally, we commonly look to corresponding federal rules for guidance
in interpreting our own procedural rules:
“when codified procedural rules . . . of West Virginia are
patterned after the corresponding federal rules, federal
decisions interpreting those rules are persuasive guides in the
interpretation of our rules.”
State v. Kaufman, 227 W. Va. 537, 553 n.33, 711 S.E.2d 607, 623 n.33 (2011) (citations
omitted). In other words,
[a]lthough we are not bound by the interpretation
federal courts placed on a former version of its Rule 35(b), we
11
find the decisions of those courts persuasive on the question of
jurisdiction. See State v. Sutphin, 195 W. Va. 551, 563, 466
S.E.2d 402, 414 (1995) (“[W]e have repeatedly recognized that
when codified procedural rules . . . of West Virginia are
patterned after the corresponding federal rules, federal
decisions interpreting those rules are persuasive guides in the
interpretation of our rules.” (citations omitted)).
Sims, 239 W. Va. at 772-73, 806 S.E.2d at 428-29 (footnote omitted). But see id. at 772-73
n.22, 806 S.E.2d 428-29 n.22 (noting that this Court has previously declined to follow the
interpretation federal courts have given to a “reasonable period” under an earlier version
of federal Rule 35(b)).
We are persuaded by the interpretation a federal court has given to the phrase
“sentence is imposed” under a prior version of federal Rule 35(b) that is similar to our own
rule. See United States v. DeVito, 99 F.R.D. 113 (D. Conn. 1983). 9 The DeVito court
9
The version of federal Rule 35(b) at issue in DeVito, provided as follows:
(b) Reduction of Sentence. The court may reduce a
sentence within 120 days after the sentence is imposed, or
within 120 days after receipt by the court of a mandate issued
upon affirmance of the judgment or dismissal of the appeal, or
within 120 days after entry of any order or judgment of the
Supreme Court denying review of, or having the effect of
upholding, a judgment of conviction. The court may also
reduce a sentence upon revocation of probation as provided by
law. Changing a sentence from a sentence of incarceration to a
grant of probation shall constitute a permissible reduction of
sentence under this subdivision.
99 F.R.D. at 114 n.1 (quoting Fed. R. Crim. P. 35(b) (1979 amended version)).
12
concluded that a sentence is “imposed” under Rule 35(b) when it is orally pronounced and
explained that
the imposition of sentence for Rule 35 purposes occurs at the
oral pronouncement of sentence rather than upon the filing of
the judgment and commitment order. See Lam Man Chung v.
United States, 419 F. Supp. 1287, 1288-89 (S.D.N.Y. 1976).
To hold otherwise would be to conclude that the sentence,
although pronounced in court, is only actually imposed on the
defendant by the subsequent filing of “mere evidence” of the
only legally cognizable sentence. Moreover, Rule 43,
Fed. R. Crim. P., provides further support for the view that
under Rule 35 a sentence is imposed when orally pronounced
in court in the presence of the defendant rather than upon the
filing of the judgment and commitment order. Rule 43(a)
provides that “the defendant shall be present . . . at the
imposition of sentence, except as otherwise provided by this
rule” (emphasis supplied). Generally, the defendant must be
and is present in court when a judge orally pronounces a
sentence. Also, generally, the defendant is not and would not
be present when the judgment and commitment is filed.
Therefore[,] the imposition of sentence envisioned in Rule 43
must be the judge’s oral pronouncement of the sentence in
court and not the filing of the judgment and commitment order.
See Lam Man Chung, supra, at 1288-89. The Court thus finds
that the same moment of imposition that is contemplated in
Rule 43 is referred to in Rule 35 in the phrase, “after the
sentence is imposed.”
Id. at 115-16 (footnote omitted). 10 Notably, Rule 43(a) of the West Virginia Rules of
Criminal Procedure likewise mandates “[t]he defendant shall be present . . . at the
imposition of sentence, except as otherwise provided by this rule.” See also Syl. pt. 5, in
10
The current amended version of Rule 35 of the Federal Rules of Criminal
Procedure clarifies that “[a]s used in this rule, ‘sentencing’ means the oral announcement
of the sentence.” F. R. Crim. P. 35(c).
13
part, State v. Byers, ___ W. Va. ___, 875 S.E.2d 306 (2022) (“A defendant has a due
process right to be present at the imposition of sentence pursuant to Rule 43(a) of the West
Virginia Rules of Criminal Procedure, West Virginia Code § 62-3-2 (1923), and both
Article III, Section 10 of the West Virginia Constitution and the Fifth Amendment of the
United States Constitution.”). As the DeVito court pointed out, a defendant is not likely to
be present when a sentencing order is entered, thus Rule 43(a) must envision “the
imposition of sentence” to be the pronouncement of the sentence at the sentencing hearing.
Reading Rule 35(b) in a manner consistent with Rule 43(a), the phrase “sentence is
imposed” necessarily also refers to the verbal announcement of the sentence at the
sentencing hearing.
In view of the foregoing authority and discussion, we now hold that 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. Applying this
holding to the facts of this case, we find no error in the circuit court’s ruling that Ms.
Keefer’s second motion seeking to reduce her sentence was not timely because it was filed
more than 120 days after her sentencing hearing.
14
IV.
CONCLUSION
For the reasons explained above, we affirm the May 19, 2021 order of the
Circuit Court of Berkeley County, denying Ms. Keefer’s Rule 35(b) motion for reduction
of a sentence as untimely.
Affirmed.
15