131 Cal.App.2d 603 (1955)
281 P.2d 343
WARD MANUFACTURING COMPANY (a Corporation), Respondent,
v.
E.V. MILEY, Appellant.
Docket No. 20455.
Court of Appeals of California, Second District, Division Three.
March 18, 1955.
*604 John D. Chinello for Appellant.
Philip T. Lyons for Respondent.
ASHBURN, J. pro tem.,[*]
Defendant appeals from an order denying his motion for change of venue from Los Angeles County to Fresno County. The action is a transitory one and *605 defendant established without contradiction the fact of his residence in Fresno County where he does business under the fictitious name E.V. Miley's Sierra Refrigeration and Fixtures. The motion was made upon two grounds: First, that defendant was a resident of Fresno County and, second, that the obligation, if any, was incurred in that county.
The complaint, filed in Los Angeles County, is in two counts. The first is an action on account stated and the second is a common count for goods sold and delivered. Appellant argues that the court denied his motion upon the theory that the plaintiff has a right to try the case where filed if one of the causes of action is based upon a contract which was made or to be performed in that county regardless of the status of the other cause of action; that the reverse of that proposition is established law. The record does lend some support to this argument. The minute order reads: "Motion denied  Found that the contract in the first cause of action was entered into and was to be performed in Los Angeles County."
[1] It is settled law that a defendant who would be entitled to a change of venue on one contractual cause of action if it were the only one, remains entitled to such change regardless of joinder of one or more other causes in which he would not be entitled to a transfer. (Goossen v. Clifton, 75 Cal. App.2d 44, 48 [170 P.2d 104]; Erwin v. Cee-Tee Const. Co., 114 Cal. App.2d 364, 370 [250 P.2d 287].) [2] But faulty reasoning, though disclosed by the record, does not destroy a correct ruling. (Hayutin v. Rudnick, 115 Cal. App.2d 138, 141 [251 P.2d 707].) So we must examine the question of whether both causes of action were in such condition as to warrant a trial in Los Angeles County over defendant's objection.
Section 395, Code of Civil Procedure, which fixes defendant's residence as a proper venue in the ordinary transitory action contains this sentence: "When a defendant has contracted to perform an obligation in a particular county, either the county where such obligation is to be performed, or in which the contract in fact was entered into, or the county in which the defendant, or any such defendant, resides at the commencement of the action, shall be a proper county for the trial of an action founded on such obligation, and the county in which such obligation is incurred shall be deemed to be the county in which it is to be performed unless there is a special contract in writing to the contrary."
*606 The first count alleges that plaintiff is a corporation engaged in business in Los Angeles and "That on the 30th day of June, 1953, at Los Angeles, California an account was stated between the plaintiff and the defendants, and upon such statement a balance of $5,697.20 was found due to plaintiff from the defendants." Also: "That the defendant agreed to pay to the plaintiff said balance of $5,697.20 but has not paid the same or any part thereof." The second count says: "That on the 30th day of June, 1953, the defendants were indebted to plaintiff in the sum of $5,697.20 on an account for goods and merchandise consisting of freezers and refrigeration equipment sold and delivered by plaintiff to defendants, at their request, in the City of Los Angeles; that no part thereof has been paid, and there is now due plaintiff thereon from defendants, the sum of $5,697.20 with interest thereon from June 30, 1953."
[3] First we consider the situation existing with respect to the first cause of action. It is the common count and sufficient as a pleading in this state. (Doyle v. McPherson, 36 Cal. App.2d 81, 83 [97 P.2d 249].) [4a] The complaint fixes prima facie the proper place for trial. Lakeside Ditch Co. v. Packwood Canal Co., 50 Cal. App. 296, 306 [195 P. 284]: "The presumption is, in the absence of an affirmative showing in that particular, that the county in which the title of the action shows that it is brought is, prima facie, the proper county where the court in which the action is brought has jurisdiction of the subject matter thereof." [5] This rule has been reiterated many times and with the corollary that the averments of the complaint are to be deemed true upon a motion for change of venue, at least to the extent that they are not controverted. (See Coley v. Hecker, 206 Cal. 22, 24 [272 P. 1045]; Mills v. Dickson, 129 Cal. App. 728, 730 [19 P.2d 278]; Liera v. Los Angeles Fin. Co., 99 Cal. App.2d 254, 258 [221 P.2d 737]; Freedman v. Imperial Cattle Co., 112 Cal. App.2d 593, 596 [246 P.2d 986]; White v. Kaiser-Frazer Corp., 100 Cal. App.2d 754, 758 [224 P.2d 833]; Connell v. Bowes, 49 Cal. App.2d 542, 544 [122 P.2d 71]; Peterson v. Sherman, 68 Cal. App.2d 706, 711 [157 P.2d 863]; Neet v. Holmes, 19 Cal.2d 605, 607 [122 P.2d 557].) This first cause of action alleges that the account was stated in Los Angeles County. [4b] And the burden of overthrowing the prima facie venue showing made thereby rested upon the moving defendant; his residence in Fresno County was not enough; he had to show that the contract was not made or to be performed in the *607 county where the action was pending. (Rowe v. Policy Holders Life Ins. Assn., 131 Cal. App. 339, 342 [21 P.2d 443]; Yellow Mfg. Accept. Corp. v. Stoddard, 93 Cal. App.2d 301, 303 [208 P.2d 1040]; Hearne v. De Young, 111 Cal. 373, 376 [43 P. 1108]; Walker v. Wells Fargo Bank etc. Co., 8 Cal.2d 447, 449-450 [65 P.2d 1299]; Konig v. Associated Almond Growers, 37 Cal. App.2d 360, 364 [99 P.2d 678]; Pacific Bal Industries v. Northern Timber, Inc., 118 Cal. App.2d 815, 826 [259 P.2d 465]; County of Modoc v. Madden, 136 Cal. 134, 137 [68 P. 491]; 25 Cal.Jur. § 42, p. 909; 1 Witken California Procedure, § 249, p. 768.) The rule in this regard is the same as to individuals and corporations.
Whether that burden was carried successfully by appellant in the instant case turns largely upon the nature of an account stated. [6] "An account stated constitutes a new contract, either express or implied, for which a previous indebtedness furnishes the consideration. Any action thereafter must be brought on the new agreement, which establishes prima facie without further proof the accuracy of the supporting items, which may not be inquired into or surcharged in the absence of allegation of fraud, mistake, or illegality. The creditor must recover on the account stated or not at all, and recovery cannot be had upon the original items on which it is based." Cited cases fully support the text just quoted from 1 California Jurisprudence 2d, section 56, pages 387, 388. They are exemplified by Auzerais v. Naglee, 74 Cal. 60, 63, 64 [15 P. 371]; Gardner v. Watson, 170 Cal. 570, 574 [150 P. 994]; Lacy Mfg. Co. v. Gold Crown Mining Co., 52 Cal. App.2d 568, 577 [126 P.2d 644]. [7] The sufficiency of defendant's showing also depends upon whether his affidavit was directed to the cause of action alleged, the account stated; for the affidavits must be confined to the case made by the complaint and neither party can shift the issue to some other theory of action; specifically, neither party was free to go into the background facts which furnish the consideration for the stated account and would disappear from view upon the trial of that major issue. (Sims v. Mains, 131 Cal. App. 307, 310, 311 [21 P.2d 447]; Sloan v. Court Hotel, 72 Cal. App.2d 308, 313, 314 [164 P.2d 516]; Meadows v. Emett & Chandler, 99 Cal. App.2d 496, 498-499 [222 P.2d 145].)
Defendant supported his motion by one affidavit, made by himself. It does not mention the alleged account stated. After setting forth residential facts it avers a conversation had in *608 Fresno in November 1952 (not the date alleged in the complaint, which was June 30, 1953), with plaintiff's sales manager in which defendant "orally agreed to sell to your affiant, and your affiant orally agreed to purchase from said plaintiff, certain merchandise consisting of open face refrigerated meat cases, subject to certain terms and conditions and contingencies then and there agreed upon." To this is added the following: "That subsequently said refrigerated meat cases were delivered by the plaintiff above named to your affiant, and all as subject to the terms and conditions orally agreed upon during the month of November, 1952; that said agreement concerning the purchase of said merchandise, and the obligations thereby incurred, if any, was entirely transacted in the County of Fresno, State of California, and said agreement in its entirety was oral, and not in writing.
"That the subject matter and basis of the First Cause of Action of Plaintiff's complaint and the subject matter of the Second Cause of Action of plaintiff's complaint, is, and each of them, are based upon transactions which occurred entirely in the County of Fresno, State of California, being the County of your affiant's residence." Not a word about an account stated; the affidavit is devoted entirely to the consideration for it if there was such statement of account. The complaint allegation that there was one is not controverted in any fashion. [8] It was not the function of the trial judge to consider the merits of plaintiff's plea. (Freedman v. Imperial Cattle Co., 112 Cal. App.2d 593, 596 [246 P.2d 986]; White v. Kaiser-Frazer Corp., supra, 100 Cal. App.2d 754, 758.) So far as the first count is concerned the motion was correctly denied for the reasons above stated. But there is another ground upon which the ruling should be upheld.
The parties joined in canvassing the facts that lay back of the first count. Defendant's affidavit was opposed by those of Brent C. Cochran (sales manager of plaintiff) and Jack Cairns (employee of plaintiff). Appellant's counsel seems to assume that those affidavits were not to be considered upon his motion because they were served and filed as part of the supporting papers upon defendant's countermotion to retain the case in Los Angeles for convenience of witnesses, which motion was premature, no answer having been filed, and was denied. The record shows however that the two motions were heard on the same day. [9] It is the general rule that courts take judicial notice of the records in the cause before them at the moment (18 Cal.Jur.2d § 53, p. 471; Willson v. Security-First *609 Nat. Bank, 21 Cal.2d 705, 711 [134 P.2d 800]), and it is to be presumed in support of the ruling that this was done. (See Nuckolls v. Bank of California, Nat. Assn., 7 Cal.2d 574, 578 [61 P.2d 927]; Vaughn v. Jonas, 31 Cal.2d 586, 601 [191 P.2d 432]; 4 Cal.Jur.2d § 559, p. 426.) [10] Indeed, a reviewing court will take judicial notice of matters properly the subject thereof even if it appears that the trial judge did not do so. (Varcoe v. Lee, 180 Cal. 338, 341-342 [181 P. 223]; Greif v. Dullea, 66 Cal. App.2d 986, 998 [153 P.2d 581]; Rogers v. Cady, 104 Cal. 288, 290 [38 P. 81, 43 Am.St.Rep. 100].)
The ensuing discussion will apply to both counts for the affidavits cover two transactions whose amounts aggregate the sum of $5,967.20 for which each cause of action seeks recovery. Defendant's affidavit relates specifically to only one conversation which he places in the month of November 1952 and in the county of Fresno. He says that Brent Cochran, sales manager representative of plaintiff, "orally agreed to sell to your affiant, and your affiant orally agreed to purchase from said plaintiff, certain merchandise consisting of open face refrigerated meat cases, subject to certain terms and conditions and contingencies then and there agreed upon." What those terms or conditions or contingencies were he does not say. Whether they provided for delivery and payment in Los Angeles we do not know  so far as his affidavit is concerned. He also says: "That subsequently said refrigerated meat cases were delivered by the plaintiff above named to your affiant, and all as subject to the terms and conditions orally agreed upon during the month of November, 1952;" Delivered where? In Los Angeles? Pursuant to what terms and conditions  payment on delivery in Los Angeles? For one who has the burden of proof he is noticeably vague. And he does not help his proof any by adding these conclusions "that said agreement concerning the purchase of said merchandise, and the obligations thereby incurred, if any, was entirely transacted in the County of Fresno, State of California"; also "That the subject matter and basis of the First Cause of Action of Plaintiff's complaint, and the subject matter of the Second Cause of Action of plaintiff's complaint, is, and each of them, are based upon transactions which occurred entirely in the County of Fresno, State of California, being the County of you affiant's residence." For conclusions they are, no more and no less.
*610 The opposing affidavit of said Brent C. Cochran, sales manager for plaintiff, says that on November 25, 1952, he, at his office in Los Angeles, received a telephone call from defendant Miley, who then ordered six pieces of refrigeration equipment at a price of $5,157, f.o.b. Los Angeles and that same "was ordered to be picked up at Los Angeles, California by the customer's truck." Also that he, Cochran, made out a "Sales and Shipping Order" and forwarded same to Miley in Fresno. A copy of the order is attached and it contains this notation "via Cust. Truck." The affiant further states that the merchandise was in fact delivered at Los Angeles "to B & B Trucking Company for delivery to Mr. Miley at Fresno, California." This affidavit is factual and was met by no counter-affidavit, no sort of refutation except the generalities above quoted.
[11] The law is that a contract made by telephone is entered into at the place where the recipient of the call is at the time he accepts the offer. Restatement of Conflict of Laws, section 326, comment c, page 405: "Acceptance by telephone. When an acceptance is to be given by telephone, the place of contracting is where the acceptor speaks his acceptance." (Cf. Bank of Yolo v. Sperry Flour Co., 141 Cal. 314, 315 [74 P. 855, 65 L.R.A. 90]; Trinity Universal Ins. Co. v. Mills, 293 Ky. 463 [169 S.W.2d 311, 314]; Traders Oil Mill Co. v. Arnold Bros. Gin Co., (Tex.Civ.App.) 225 S.W.2d 1011, 1013; Pearson v. Electric Service Co. of Pensacola, 166 Kan. 300 [201 P.2d 643, 645]; Cousins v. Harrison, 33 Ala. 199 [30 So.2d 393, 394]; United States v. Bushwick Mills (C.C.A.2d), 165 F.2d 198, 202; 17 C.J.S. § 356, p. 814; 1 Williston on Contracts, rev. ed. § 82, p. 237; § 97, p. 312.) This fixes Los Angeles County as the place of contract. [12] And the agreement that the merchandise was to be delivered to customer's truck at Los Angeles fixes that county as the place for performance. [13] The fact that the price was fixed f.o.b. Los Angeles had no controlling significance. It merely indicates that title was to pass and the contract thus to be performed in that county. (See Woodbine v. Van Horn, 29 Cal.2d 95, 107 [173 P.2d 17]; Southern Pac. Co. v. Hyman-Michaels Co., 63 Cal. App.2d 757, 764 [147 P.2d 692].)
There was no error in the ruling that plaintiff had a right to trial of the first count in Los Angeles County.
[14] The affidavit of Jack Cairns, in opposition to the motion, deals with the occurrence of June 1, 1953. He says that he received on that day, at his office in Los Angeles, a *611 letter from defendant addressed to plaintiff saying "Please send immediately 1  W.M.F. 30-2."; that he prepared a "Sales and Shipping Order" and mailed same to defendant in Fresno; it carries the notation "via Truck"; that on June 12, 1953, the merchandise was delivered in Los Angeles to Pacific Freight Lines for shipment to Miley at Fresno "Freight Collect." The sales and shipping order, mailed to defendant, was the last act necessary to acceptance and completion of the contract. It having occurred in Los Angeles, and the mailed order having been accepted by a document mailed in Los Angeles, that became the place of contract. It is well settled that this is the law. (Bank of Yolo v. Sperry Flour Co., supra, 141 Cal. 314, 315; Rawson v. J.C. Forkner Fig Gardens, Inc., 206 Cal. 4, 6 [272 P. 1057]; Johnson v. Banta, 87 Cal. App.2d 907, 909 [198 P.2d 100]; Taylor v. J.B. Hill Co., 67 Cal. App.2d 581, 582 [154 P.2d 926]; 11 Cal.Jur.2d § 68 at p. 155; 1 Witkin on California Procedure, § 231, p. 742.) None of the facts set forth in this affidavit is denied. It fixes Los Angeles as the place of contracting and inferentially as the place of performance.
[15] It was for the trial judge to resolve any conflicts in the evidence; when he has done so the reviewing court will not interfere. (Hayutin v. Rudnick, supra, 115 Cal. App.2d 138, 140; Schreiber v. Hooker, 114 Cal. App.2d 634, 640 [251 P.2d 55].)
Defendant is not entitled to trial of either cause of action in the county of Fresno.
The ruling is correct. The order denying change of venue is affirmed.
Wood (Parker), Acting P.J., and Vallée, J., concurred.
NOTES
[*]   Assigned by Chairman of Judicial Council.


                                                                     F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                    January 18, 2006
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                      Clerk of Court

 MICHAEL HAYWARD,

          Plaintiff-Appellant,
                                                        No. 04-1520
 v.
                                                    (D.C. No. 04-Z-1328)
                                                         (Colorado)
 WARDEN BRILL, Warden; N.P.
 WEDERSKI; N.P. HILL,

          Defendants-Appellees.

                          ORDER AND JUDGMENT *

Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.

      Michael Hayward, a former Colorado state prisoner proceeding pro se, 1

brought a civil rights action pursuant to 42 U.S.C. § 1983, alleging that various

      *
       After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
      1
       Mr. Hayward was incarcerated when he initially filed this action, but he
was released shortly after initiating this appeal. Because he is proceeding pro se,
we construe his pleadings liberally. Haines v. Kerner, 404 U.S. 519, 520-21
(1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
prison officials and medical staff violated his Eight and Fourteenth Amendment

rights by failing to provide him with adequate medical treatment. The district

court dismissed the case without prejudice for failing to exhaust administrative

remedies. We review such a dismissal under a de novo standard, and we affirm.

See Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002).

      The Prison Litigation Reform Act (PLRA) commands that “[n]o action shall

be brought with respect to prison conditions under section 1983 of this title, or

any other Federal law, by a prisoner confined in any jail, prison, or other

correctional facility until such administrative remedies as are available are

exhausted.” 42 U.S.C. § 1997e(a). In his complaint, Mr. Hayward acknowledged

he had not exhausted administrative remedies. The district court issued a show

cause order, noting that pursuant to Steele v. Fed. Bureau of Prisons, 355 F.3d

1204, 1210 (10th Cir. 2003), Mr. Hayward was not only required to exhaust his

available remedies prior to bringing his § 1983 suit but was also required to

provide supporting information with the complaint as evidence of exhaustion.

Because Mr. Hayward failed to do either, the court ordered him to explain why

his complaint should not be dismissed for failure to exhaust administrative

remedies. In response, Mr. Hayward indicated that two days before filing his

show cause answer, he filed a final step three grievance with the prison and was

awaiting a response. He requested the court to grant him an extension so he could

                                         -2-
exhaust his remedies and proceed with his case. The court denied his request and

dismissed the action without prejudice.

      We can not say the district court erred in dismissing Mr. Hayward’s case.

“[The PLRA’s] statutory exhaustion requirement . . . is mandatory, and the

district court was not authorized to dispense with it.” Beaudry v. Corr. Corp. of

Am., 331 F.3d 1164, 1168 n.5 (10th Cir. 2003). If Mr. Hayward has indeed

exhausted his administrative remedies, he may be entitled to file another

complaint. But any present status of exhaustion does not undermine Mr.

Hayward’s own concession that he had not exhausted his administrative remedies

prior to filing his initial action. See McKinney v. Carey, 311 F.3d 1198, 1199

(9th Cir. 2002) (“§ 1997e(a) requires exhaustion before the filing of a complaint

and . . . a prisoner does not comply with this requirement by exhausting available

remedies during the course of the litigation”) (citing cases).

      We GRANT Mr. Hayward’s request to proceed in forma pauperis on

appeal and AFFIRM.

                                       ENTERED FOR THE COURT

                                       Stephanie K. Seymour
                                       Circuit Judge

                                          -3-


132 S.E.2d 880 (1963)
260 N.C. 352
STATE of North Carolina
v.
Robert James BLACKMON.
No. 146.
Supreme Court of North Carolina.
October 30, 1963.
*881 Atty. Gen. T. W. Bruton, Deputy Atty. Gen. Harry W. McGalliard, for the State.
Hollowell & Stott, Gastonia, for defendant appellant.
DENNY, Chief Justice.
The only question presented on this appeal is whether or not a sentence of not less than twenty years nor more than thirty years on a plea of guilty to the charge of unlawful possession of implements of housebreaking, constitutes cruel and unusual punishment within the meaning of Article I, Section 14, of the Constitution of North Carolina.
The appellant does not challenge the validity of the sentence imposed in Case No. 4866. Hence, it is affirmed.
The question posed on this appeal does, however, require a consideration of the sentence imposed in Case No. 4867, in light of several of our former decisions and the provisions of G.S. § 14-2 and G.S. § 14-3, which limit punishment not to exceed ten years. These statutes read as follows:
"14-2 * * * Every person who shall be convicted of any felony for which no specific punishment is prescribed by statute shall be imprisoned in the county jail or State prison not exceeding two years, or be fined, in the discretion of the court, or if the offense be infamous, the person offending shall be imprisoned in the county jail or State prison not less than four months nor more than ten years, or be fined.
"14-3 * * * All misdemeanors, where a specific punishment is not prescribed shall be punished as misdemeanors at common *882 law; but if the offense be infamous, or done in secrecy and malice, or with deceit and intent to defraud, the offender shall, except where the offense is a conspiracy to commit a misdemeanor, be guilty of a felony and punished by imprisonment in the county jail or State prison for not less than four months nor more than ten years, or shall be fined."
The foregoing statutes, in almost the identical language set forth above, were codified in the Code of North Carolina, 1883, as sections 1096 and 1097. These sections were carried forward in the Revisal of 1905 as sections 3292 and 3293. They appeared in the Consolidated Statutes of 1919 as sections 4172 and 4173.
One who is convicted or pleads guilty to the charge of the unlawful possession of burglary tools or implements of housebreaking "shall be guilty of a felony (according to the provisions of G.S. § 14-55) and punished by fine or imprisonment in the State's prison, or both, in the discretion of the court."
In the case of State v. Driver, 78 N.C. 423, decided in 1878, the defendant had pleaded guilty to an indictment charging him with an assault and battery upon his wife. The defendant was sentenced to a term of five years in the county jail, and then to give a bond with sureties in the sum of $500.00 to keep the peace for five years longer. Justice Reade, in speaking for the Court, said: "We have examined our Rev.Code which was prior to our penitentiary system and to our Constitution of 1868, when imprisonment was altogether in the county jails, and unless we have inadvertently overlooked some crime, there was none the punishment whereof was for so long a time. In many cases the punishment was specified; in others it was not to be less than so and so; in others, not exceeding so and so; and in others, at the discretion of the court; these last being generally small offenses where it was not usual to punish much; and to cover all cases of felony where the punishment was not specific, there was the following provision: `Every person who shall hereafter be convicted of any felony for which no specific punishment shall be prescribed by statute, and which is now allowed the benefit of clergy, shall be imprisoned at the discretion of the court, not exceeding two years; or if the offense be infamous, the court may also sentence the convict to receive one or more public whippings, to stand in the pillory, or pay a fine, regard being had to the circumstances of each case.' Rev.Code, ch. 34, sec. 27."
Section 9 of Chapter 167 of the Public Laws of North Carolina, 1868-69, was enacted in lieu of the Revisal Code, Chapter 34, Section 27, and read as follows: "Every crime or offence whatever, heretofore punishable by the laws of North Carolina when the present Constitution went into effect, with public whipping or other corporeal punishment, shall hereafter, in lieu of such corporeal punishment, be punished by imprisonment in the State's prison (or County jail), for not less than four months nor more than ten years."
Justice Reade in the Driver case quoted with approval from the decision in which Lord Devonshire was tried by the Court of the King's Bench and fined thirty thousand pounds. 11 State Trials, 1354. The case was later considered by the House of Lords, and in its opinion it said: "It is so very evident as not to be made a question whether in those things which are left to the discretion of the judges, that the law has set them bounds and limits, which, as God says to the waves of the sea, `Hitherto shalt thou go, and no farther.' * * * But if the judge may commit the party to prison till the fine be paid, and withal set so great a fine as is impossible for the party to pay, then it will depend upon the judge's pleasure whether he shall ever have his liberty, and thus every man's liberty is wrested out of the dispose of the law and is stuck under the girdle of the judges." This Court held in the Driver case that the court below was without power to sentence *883 the defendant to a term of imprisonment in excess of thirty days.
In State v. Rippy (1900), 127 N.C. 516, 37 S.E. 148, the defendant was indicted for rape and entered a plea of guilty upon the third count in the bill of indictment for "unlawfully and carnally knowing and abusing" an innocent female between the ages of ten and fourteen years. The solicitor, with the sanction of the court, accepted the plea. This offense was created by Chapter 295, Laws of 1895, now codified as G.S. § 14-26, which provided that the offense "shall be punished by fine or imprisonment in the state prison, at the discretion of the court." The sentence imposed was ten years in the State's Prison. Clark, J., later C. J., writing the opinion for the Court, held the sentence imposed was clearly within the punishment authorized. He further held: "There is nothing to show that this discretion reposed by the statute in the judge was abused." Continuing, the writer of the opinion said: "The only exception in the transcript is that Code, § 1096, provides that persons convicted of felonies for which `no specific punishment is prescribed by statute' shall be imprisoned in the county jail or penitentiary not exceeding two years, and be fined, in the discretion of the court. But the penalty prescribed by chapter 295, Laws 1895, is specific,fully as much so as that laid down in Code, § 1096, and is different in kind. The former authorizes fine or imprisonment in the penitentiary at the discretion of the court. The latter, a fine in the discretion of the court, and imprisonment in jail or the penitentiary, not exceeding two years, etc. These sections (1096 and 1097 [(now G.S. § 14-2 and § 14-3)]) apply only where an act is prohibited or is made unlawful, without specifying the nature of the punishment * * *. The quantum of punishment, whenever mentioned in The Code, is either `in the discretion of the court,' or `not exceeding,' etc. It cannot be said that all the crimes in The Code therefore fall within the scope of secs. 1096 and 1097, because `no specific punishment' is prescribed. The punishment is specific (i. e. specified as fine, or imprisonment in jail or in state's prison), though the extent of the specified punishment is left in the discretion of the court, or in its discretion not exceeding a limit stated."
The trouble in connection with the question now before us began with the Rippy case. The controversy before the Court in that case was whether the two- or the ten-year maximum applied. The Court disposed of the question presented for determination in that case when it held that the ten-year sentence imposed was within the punishment authorized. However, the writer of the opinion continued by way of dictum and said that punishment by fine or imprisonment, or both, in the discretion of the court, is specific, and hence, section 1096 of the Code (now G.S. § 14-2) did not apply.
Thereafter, using as sound reasoning the dictum in the Rippy case, this Court in State v. Swindell (1925), 189 N.C. 151, 126 S.E. 417, held that G.S. § 14-2 had no application in Swindell's case because punishment by fine or imprisonment, or both, in the discretion of the court, was specific punishment, and that a sentence of thirty years in the State's Prison, at hard labor, was authorized by C.S. 4209 (now G.S. § 14-26), and was not in violation of Article I, Section 14, of the Constitution of North Carolina. In State v. Cain, 209 N.C. 275, 183 S.E. 300, this Court upheld a sentence of not less than 25 nor more than 30 years for violation of the statute under which the present defendant was indicted, on authority of the Swindell case.
In the case of State v. Dunn, 208 N.C. 333, 180 S.E. 708, Clarence Dunn, son of the defendant, while using the defendant's car, struck and killed a person, and thereafter the defendant was indicted and convicted as an accessory after the fact for "`aiding, assisting, procuring and counseling the said Clarence Dunn to flee from the scene of said felony,'" etc. C.S. 4201 *884 (now G.S. § 14-18), prior to the enactment of Chapter 249 of the Laws of 1933, read as follows: "If any person shall commit the crime of manslaughter he shall be punished by imprisonment in the county jail or State prison for not less than four months nor more than twenty years." The following proviso was added to C.S. 4201 on 10 April 1933: "Provided, however, that in cases of involuntary manslaughter, the punishment shall be in the discretion of the court, and the defendant may be fined or imprisoned, or both."
The defendant contended on appeal from a sentence to work on the roads for six months, that the proviso added by the Legislature in 1933 was designed to make involuntary manslaughter a misdemeanor instead of a felony, and that, therefore, the Recorder's Court in Richmond County had jurisdiction, and hence, no indictment could lie in the Superior Court. This Court said, speaking through Brogden, J.: "This contention, however, cannot be maintained * * * (T)he proviso did not purport to create a new crime, to wit, that of involuntary manslaughter. * * * Indeed, the court is of the opinion, and so holds, that the proviso was intended and designed to mitigate the punishment in cases of involuntary manslaughter and to commit such punishment to the sound discretion of the trial judge."
Even so, if we are to continue the Swindell and Cain cases as authoritative on the question under consideration, a sentence for involuntary manslaughter can be imposed in excess of that allowed by G.S. § 14-18 for manslaughter.
Likewise, G.S. § 14-54 provides: "If any person, with intent to commit a felony or other infamous crime therein, shall break or enter either the dwelling house of another otherwise than by a burglarious breaking; or any storehouse, shop, warehouse, bankinghouse, countinghouse or other building where any merchandise, chattel, money, valuable security or other personal property shall be; or any uninhabitated house, he shall be guilty of a felony, and shall be imprisoned in the State's prison or county jail not less than four months nor more than ten years."
Therefore, if the punishment to be imposed in the discretion of the court, as provided in G.S. § 14-55, for the possession of the implements of housebreaking, is not limited by the provisions of G.S. § 14-2, then we have the anomalous situation of upholding the imposition of a sentence in the State's Prison three times as long as could be legally imposed for the actual commission of the crime of housebreaking under G.S. § 14-54. We have come to the conclusion that the Legislature never intended to authorize any such disparity.
Therefore, the cases of State v. Swindell, supra, and State v. Cain, supra, are overruled. Likewise, so much of the opinion in State v. Richardson, 221 N.C. 209, 19 S.E.2d 863, as holds where there is a provision in a statute to the effect that punishment shall be in the discretion of the court and the defendant may be fined or imprisoned, or both, that this is equivalent to a "specific punishment" within the meaning of G.S. § 14-2 and is not controlled thereby, is modified to the extent herein indicated.
The judgment entered in Case No. 4867 in the court below is set aside and this cause is remanded to the Superior Court of Gaston County for sentence in accord with this opinion, within the limits prescribed by G.S. § 14-2.
Error and remanded.
PARKER, Justice (dissenting).
Even if I concede that what was said by the Court in State v. Rippy, 127 N.C. 516, 37 S.E. 148, quoted in the majority opinion, is dictum, yet it became law by reason of the decision of this Court in State v. Swindell, 189 N.C. 151, 126 S.E. 417, which was rendered by a strong and unanimous Court. The opinion in the *885 Swindell case was filed on 18 February 1925. On 22 January 1936 the Court filed its opinion in State v. Cain, 209 N.C. 275, 183 S.E. 300, holding that the decision in the Swindell case is determinative of this appeal. The decision in the Cain case was rendered by a strong and unanimous Court. Of the five judges who decided the Swindell case, two were not members of the Court that decided the Cain case, but had been replaced by two distinguished judges. On 29 April 1942 the opinion in State v. Richardson, 221 N.C. 209, 19 S.E.2d 863, was filed, which states: "Is a provision in a criminal statute `that the punishment shall be in the discretion of the Court and the defendant may be fined or imprisoned or both', the prescribing of a `specific punishment' within the meaning of Section 4172 of the Consolidated Statutes of North Carolina? The answer is in the affirmative. State v. Rippy, 127 N.C. 516, 37 S. E. 148; State v. Swindell, 189 N.C. 151, 126 S.E. 417." This decision was rendered by a strong and unanimous Court of seven judges, of which four of the associate justices afterwards became chief justice. Of the seven judges who decided the Richardson case, only Chief Justice Stacy participated in the decision in the Swindell case. Of the seven judges who decided the Richardson case, only Chief Justice Stacy and Justices Schenck and Devin participated in the Cain decision. Subsequent to the decision in the Cain case, the membership of the Court was increased from five to seven. The decisions in the Swindell, Cain, and Richardson cases were participated in by eleven members of this Court, five of whom have been chief justice and one of whom is the present distinguished chief justice of this Court. In addition, the so-called dictum in the Rippy case was written by Justice Walter Clark, afterwards for over twenty years chief justice of this Court and one of the most learned legal scholars who ever sat on the bench in this State, and concurred in by a unanimous Court.
The Court held in the Swindell case in 1925 and in the Cain case in 1936, adopting as law what was said in the Rippy case in 1900, and repeating it again in the Richardson case in 1942, that a provision in a criminal statute "that the punishment shall be in the discretion of the court and the defendant may be fined or imprisoned or both" is the prescribing of a "specific punishment" within the meaning of what is now G.S. § 14-2, and the General Assembly has met in Raleigh and gone many times since and has not seen fit to disagree with our interpretation of the language of the statute.
I do not agree with the following statement in the majority opinion: "Therefore, if the punishment to be imposed in the discretion of the court, as provided in G. S. § 14-55, for the possession of the implements of housebreaking, is not limited by the provisions of G.S. § 14-2, then we have the anomalous situation of upholding the imposition of a sentence in the State's Prison three times as long as could be legally imposed for the actual commission of the crime of housebreaking under G.S. § 14-54. We have come to the conclusion that the Legislature never intended to authorize any such disparity.
"Therefore, the cases of State v. Swindell, supra, and State v. Cain, supra, are overruled. Likewise, so much of the opinion in State v. Richardson, 221 N.C. 209, 19 S.E.2d 863, as holds where there is a provision in a statute to the effect that punishment shall be in the discretion of the court and the defendant may be fined or imprisoned, or both, that this is equivalent to a `specific punishment' within the meaning of G.S. § 14-2 and is not controlled thereby, is modified to the extent herein indicated."
G.S. § 14-54 is concerned with breaking into or entering houses other than burglariously. G.S. § 14-55 is concerned with preparation to commit burglary or other housebreakings. There is a vast difference between burglary and housebreaking, and *886 I am sure the General Assembly realized this when it enacted what is now G.S. § 14-55, authorizing more severe punishment than G.S. § 14-54. See the drastic punishment prescribed for burglary, as defined in G.S. § 14-51, set forth in G.S. § 14-52.
I do not agree in the overruling of our former decisions in the Swindell and Cain cases, and in the modification of the Richardson case. There is no assurance but that in the years ahead, when all, or most, of the present members of the Court are gone, a future Court of learned judges will decide that the majority opinion here is erroneous and will overrule it, and hold that the Swindell and Cain cases, and what is said in the Rippy and Richardson cases, are correct and sound law. If a change is to be made, in my opinion it should be done by the General Assembly. I vote to affirm the judgment below on the authority of the Swindell and Cain cases.


          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                 September 2014 Term
                                  _______________                           FILED
                                                                    November 6, 2014
                                                                       released at 3:00 p.m.
                                    No. 13-0779                      RORY L. PERRY II, CLERK
                                                                   SUPREME COURT OF APPEALS
                                  _______________                       OF WEST VIRGINIA

                             STATE OF WEST VIRGINIA,

                              Plaintiffs Below, Respondent

                                          v.

                                CINDY V. ALLMAN,

                              Defendant Below, Petitioner

       ____________________________________________________________

                   Appeal from the Circuit Court of Harrison County

                       The Honorable James A. Matish, Judge

                            Criminal Action No. 10-F-79-3

                                     AFFIRMED

       ____________________________________________________________

                              Submitted: October 1, 2014

                               Filed: November 6, 2014

Jonathan Fittro, Esq.                          Patrick Morrisey, Esq.
Clarksburg, West Virginia                      Attorney General
Counsel for the Petitioner                     Laura Young, Esq.
                                               Assistant Attorney General
                                               Shannon F. Kiser
                                               Assistant Attorney General
                                               Charleston, West Virginia
                                               Counsel for the Respondent

JUSTICE BENJAMIN delivered the Opinion of the Court.
                            SYLLABUS BY THE COURT

             “‘The Supreme Court of Appeals reviews sentencing orders . . . under a

deferential abuse of discretion standard, unless the order violates statutory or

constitutional commands.’ Syl. Pt. 1, in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d

221 (1997).” Syl. pt. 1, State v. James, 227 W. Va. 407, 710 S.E.2d 98 (2011).

                                            i
Benjamin, Justice:

              This case comes before us pursuant to the appeal by Cindy V. Allman of

the July 1, 2013 order of the Circuit Court of Harrison County, wherein Ms. Allman was

sentenced to life imprisonment without the possibility of parole. Ms. Allman asserts that,

in return for her guilty plea to a single count of felony murder, the prosecutor agreed to

recommend to the circuit court that she be granted eligibility for eventual parole from the

required life sentence. Although the prosecutor complied with the agreement, the court

declined to accept the State’s recommendation. On appeal, Ms. Allman contends that the

circuit court did not adequately justify its decision to depart from the plea agreement and

recommendation. This Court has before it all materials of record, the parties’ respective

briefs, and the argument of counsel. Based upon our review of this matter and for the

reasons set forth herein, we affirm the circuit court’s sentencing order.

                                             I.

                 FACTUAL AND PROCEDURAL BACKGROUND

              At about 4:30 a.m. on October 25, 2009, Ms. Allman, having used heroin

and cocaine earlier in the evening, stood with Jeffery Taylor just outside the home of

Terry K. Lewis, while Alexander Bosley waited in a nearby vehicle. The group was in

search of money and valuables. Ms. Allman and Mr. Taylor entered the Lewis residence

through the unlocked front door, then armed themselves with knives they found in the

kitchen. Shortly thereafter, Mr. Taylor confronted Mr. Lewis in the bedroom, where Mr.

                                              1

Lewis had been sleeping along with his eight-year-old grandson. Mr. Taylor stabbed Mr.

Lewis, who stumbled into the hallway screaming and looking for help. There Mr. Lewis

encountered Ms. Allman, from whom he received additional stab wounds. The wounds

Mr. Lewis sustained from each attack proved to be independently fatal.

              About three weeks afterward, on November 15, 2009, the police received a

telephone call from Mr. Taylor’s estranged girlfriend. The woman disclosed what she

knew concerning the killing, which led to the arrests of Ms. Allman, Mr. Taylor, and Mr.

Bosley. The grand jury returned an indictment on May 4, 2010, charging each of the

three arrestees with felony murder and with conspiracy to commit burglary. The trio

entered into separate agreements with the State to plead guilty to the murder charge, in

exchange for dismissal of the conspiracy charge and for the prosecutor recommending at

sentencing that each be deemed eligible for parole after serving fifteen years of a life

term. See W. Va. Code § 61-2-1 (1991) (explaining that murder “in the commission of,

or attempt to commit . . . burglary . . . is murder of the first degree”); W. Va. Code § 62

3-15 (1994) (mandating sentence of life imprisonment for first-degree murder and

instructing that if an accused pleads guilty to that charge, “the court may, in its discretion

. . . provide that such person shall be eligible for parole . . . in the same manner and with

like effect as if such person had been found guilty by the verdict of a jury and the jury

had recommended mercy, except that . . . such person shall not be eligible for parole until

he or she has served fifteen years”).

                                              2

              The circuit court accepted the defendants’ respective pleas after hearings

conducted in accordance with Rule 11 of the West Virginia Rules of Criminal Procedure.

See infra Part III. The probation officer prepared presentence investigation reports, and

each of the three defendants came before the court for sentencing on October 28, 2010.

At the conclusion of that hearing, the court rejected the State’s recommendation for

mercy and, by order of November 24, 2010, sentenced all three defendants to life without

the possibility of parole. Ms. Allman moved for reconsideration, and she also filed a

complaint against her lawyer with the Office of Disciplinary Counsel. The court held

Ms. Allman’s motion in abeyance pending resolution of the disciplinary complaint and

pending appellate proceedings initiated by Mr. Taylor.1

              On June 19, 2013, the circuit court conducted a second sentencing hearing

pertaining solely to Ms. Allman. By order of July 1, 2013, the court reimposed the

original sentence of life imprisonment without the possibility of parole. Ms. Allman

appealed the sentencing order on August 1, 2013, and, though filed one day late, the

appeal was permitted to proceed for good cause shown, in accordance with this Court’s

       1
         Mr. Taylor filed his own motion for reconsideration, but, on January 6, 2011,
before obtaining a ruling, he petitioned this Court for appeal. On October 20, 2011, we
entered an order dismissing the petition without prejudice to being refiled once the circuit
court has disposed of the reconsideration motion.

                                             3

order of August 5, 2013. See W. Va. R. App. P. 5(b) (directing that the notice of appeal

be filed “[w]ithin thirty days of entry of the judgment being appealed,” although the time

period may be extended beyond the thirty-day window “for good cause shown”).

                                            II.

                               STANDARD OF REVIEW

              Ms. Allman does not contend that she was sentenced unconstitutionally or

in violation of any statute. We therefore review the sentencing order merely to ensure

that the circuit court did not abuse its discretion by denying Ms. Allman the possibility of

parole for the duration of her life imprisonment. See syl. pt. 1, State v. James, 227 W.

Va. 407, 710 S.E.2d 98 (2011) (“‘The Supreme Court of Appeals reviews sentencing

orders . . . under a deferential abuse of discretion standard, unless the order violates

statutory or constitutional commands.’ Syl. Pt. 1, in part, State v. Lucas, 201 W.Va. 271,

496 S.E.2d 221 (1997).”).

                                            III.

                                       ANALYSIS

              The plea agreement stipulated that it was governed by “Rule 11(e)(1)(B) of

the West Virginia Rules of Criminal Procedure,” and it further indicated that Ms. Allman

had been made “fully aware that the Court is not bound by any recommendations made

                                             4

by the State.”2 Ms. Allman’s “Type B” agreement—so labeled to correspond with the

pertinent subparagraph of Rule 11(e)(1)—stands in contrast to “Type C” plea agreements

negotiated pursuant to the succeeding subparagraph. In a Type C arrangement, the

parties reach a mutual agreement “that a specific sentence is the appropriate disposition

of the case.” W. Va. R. Crim. P. 11(e)(1)(C). We have previously explained that if a

defendant has entered into a Type C plea agreement with the State, “the trial court may

either accept or reject the entire agreement, but it may not accept the guilty plea and

impose a different sentence than that agreed upon.” State ex rel. Forbes v. Kaufman, 185

W. Va. 72, 76, 404 S.E.2d 763, 767 (1991).

              Ms. Allman acknowledges that her Type B plea agreement did not legally

bind the circuit court. She nonetheless suggests that a sentencing order should evidence

the court’s thorough contemplation of the Type B agreement and must give the State’s

recommendation more than mere lip service. Otherwise, says Ms. Allman, the agreement

has no value except to the extent that it happens to be predictive of the court’s

predisposition.   Before rejecting a prosecutorial recommendation that the defendant

       2
         The referenced rule provides specifically that the State, in exchange for a
defendant’s guilty plea, may “[m]ake a recommendation or agree not to oppose the
defendant’s request[] for a particular sentence, with the understanding that such
recommendation or request shall not be binding upon the court.” W. Va. R. Crim. P.
11(e)(1)(B).

                                             5

eventually be considered for parole, Ms. Allman posits, a circuit court must make a

specific finding that the plea agreement fails to serve the interests of justice.

              At the initial sentencing hearing, the circuit court made clear that it “is

always mindful of plea agreements,” and it recited that the agreement in Ms. Allman’s

case “calls for the State to recommend that [she] be eligible for parole after having served

fifteen years.” In the corresponding order, the court explained that it “did consider the

mitigating factors of the defendant’s age, lack of parental supervision or help, and history

of substance abuse, physical abuse, [and] sexual abuse.” The court nonetheless declined

to recommend that Ms. Allman be eligible for parole “based upon her representations in

the presentence investigation report, [her] lack of work history yet ability . . . to go from

one fix to the next, and the burglary of a home in the nighttime resulting in the stabbing

death of the homeowner in front of his minor grandchild.”3 Emphasizing this last factor

in particular, the court remarked that the boy’s presence during the attack on his

grandfather “would cry out for a jury . . . not to grant any mercy.”

       3
         The circuit court elaborated from the bench that Ms. Allman’s statements to her
probation officer attempted “to mitigate [her] role[] in the events of that night and . . . put
the blame on the other individuals.” Ms. Allman’s excuses, the court reasoned, rendered
it “very questionable” that she had accepted responsibility for her actions.

                                               6

              The circuit court’s statements leave no room to surmise that it

misunderstood what the plea agreement provided. The court manifestly was aware that

the State had recommended parole eligibility, and it undoubtedly realized that it could

accept that recommendation. Moreover, Ms. Allman does not contend that she entered

into the plea agreement involuntarily, or without being advised competently, or that she

failed to comprehend the extent of the court’s discretion.4

              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.’” State v. Redman, 213 W. Va. 175, 178, 578 S.E.2d 369, 372 (2003)

(quoting syl. pt. 3, in part, Fayette Cnty. Nat’l Bank v. Lilly, 199 W. Va. 349, 484 S.E.2d

232 (1997)). Here, the circuit court spoke plainly. Though perhaps not invoking the

precise words that Ms. Allman may have preferred, the sentencing order unquestionably

reflects that the court carefully weighed the interests of justice in this particular instance

against the general systemic interest in permitting the parties to a negotiated plea

agreement to realize their expectations regarding its effect. From all indications, the

       4
        The law is familiar with those types of sentencing defects, and methodologies
have been established to correct such errors when they occur. See, e.g., State v. Yoak,
202 W. Va. 331, 335, 504 S.E.2d 158, 162 (1998) (remanding for reconsideration of
sentence based on circuit court’s erroneous conclusion that it lacked authority to direct
home confinement); State ex rel. Clancy v. Coiner, 154 W. Va. 857, 865, 179 S.E.2d 726,
731 (1971) (granting collateral relief and vacating petitioners’ convictions and sentences
on ground that guilty pleas were falsely induced and therefore involuntary).

                                              7

court’s rejection of the State’s recommendation was an appropriate exercise of its

legitimate discretion, with no evidence of predisposition.

              The Type B plea agreement in this case allocated to Ms. Allman the risk

that she and her counsel would overestimate the circuit court’s inclination to be

persuaded by the prosecution’s recommendation. That is how agreements are supposed

to work. Had Ms. Allman been in a stronger bargaining position (that is, had the conduct

surrounding her offense not “cried out” for a jury to withhold mercy), she might have

been able to negotiate a Type C plea arrangement that the court would have been

constrained to either take or leave.

              In Williams v. New York, 337 U.S. 241 (1949), the Supreme Court of the

United States reviewed a death sentence imposed on the defendant for a murder

committed during a burglary. The trial court, relying on information contained in the

presentencing report, rejected the jury’s recommendation that the defendant be sentenced

to life in prison. Justice Black, writing for the Court, rebuffed the defendant’s assertion

of a due process violation, reminding us that “there is possibility of abuse wherever a

judge must choose between life imprisonment and death.”          Id. at 251.    The Court

observed further “that no federal constitutional objection would have been possible if the

judge here had sentenced appellant to death because appellant’s trial manner impressed

the judge that appellant was a bad risk for society, or if the judge had sentenced him to

                                             8

death giving no reason at all.” Id. at 252. Justice Black characterized the discretion

afforded the trial court as an “awesome power,” id., vividly illustrating the vast extent to

which society relies on sentencing judges to wield that discretion with solemnity and due

deliberation. Ms. Allman’s circumstances are materially indistinguishable from those

confronted by the Supreme Court sixty-five years ago in Williams. We can discern no

abuse of the circuit court’s discretion herein.

                                             IV.

                                      CONCLUSION

              Pursuant to the foregoing, we affirm the circuit court’s order sentencing

Ms. Allman to life imprisonment without parole.

                                                                                Affirmed.

                                              9


       In the United States Court of Federal Claims
                                   OFFICE OF SPECIAL MASTERS
                                        Filed: January 23, 2019
                                        (Not to be published)

    * * * * * * * * * * *               *
                                      * *    *
                                        *
 JOSEPH MORAN,                          *
                                        *      No. 16-0538V
              Petitioner,               *
                                        *
 v.                                     *      Special Master Oler
                                        *
 SECRETARY OF HEALTH                    *      Interim Attorneys’ Fees and Costs;
 AND HUMAN SERVICES,                    *      Duplicative Billing;
                                        *      Administrative Tasks; Expert Costs.
              Respondent.               *
                                        *
 * * * * * * * * * * * * * *
Andrew Donald Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner.

Althea Walker Davis, U.S. Department of Justice, Washington, DC, for Respondent.

                   DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1

Oler, Special Master:

          On May 2, 2016, Joseph Moran (“Petitioner”) filed a petition for compensation in the
    National Vaccine Injury Compensation Program (“the Program”), 2 alleging that he developed
    rheumatoid arthritis (“RA”) caused or significantly aggravated by his receipt of an influenza (“flu”)
    vaccination on October 17, 2013. ECF No. 1 at 1. Petitioner now requests an award of interim
    attorneys’ fees and costs.

1
  Because this unpublished decision contains a reasoned explanation for the action in this case, I intend to
post this decision on the United States Court of Federal Claims’ website, in accordance with the E-
Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44
U.S.C. § 3501 note (2012)). In accordance with Vaccine Rule 18(b), a party has 14 days to identify and
move to delete medical or other information, that satisfies the criteria in 42 U.S.C. § 300aa-12(d)(4)(B).
Further, consistent with the rule, a motion for redaction must include a proposed redacted decision. If, upon
review, I agree that the identified material fits within the requirements of that provision, I will delete such
material from public access.
2
 National Childhood Vaccine Injury Act of 1986 (“Vaccine Act”), Pub. L. No. 99-660, 100 Stat. 3755.
Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph
of 42 U.S.C. §300aa (2012).
                                                       1
           I.      The Instant Motion

          On June 13, 2018, Petitioner filed an application for interim attorneys’ fees and costs (“Interim
    Motion”), requesting $30,398.00 in attorneys’ fees for her counsel of record, Andrew D. Downing
    of Van Cott & Talamante, PLLC (“VCT”), and $21,199.68 in attorneys’ costs, for a total of
    $51,597.68. See Interim Motion, ECF No. 40 at 1; see also Ex. A at 38, 67, attached as ECF No. 40-
    1 (hereinafter referred to as “Ex. A”).3 A review of the Interim Motion does not reflect that Petitioner
    herself has borne any out-of-pocket expenses up to this point in the litigation. See generally Interim
    Motion.

           Respondent filed a response to Petitioner’s Interim Motion on June 27, 2018. Respondent’s
    Response, ECF No. 41. Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13
    contemplates any role for [R]espondent in the resolution of a request by a petitioner for an award of
    attorneys’ fees and costs.” Id. at 1. Respondent adds, however, that he is “satisfied that the statutory
    requirements for an award of attorney’s fees and costs are met in this case.” Id. at 2. Additionally,
    he “respectfully recommends that [I] exercise [my] discretion and determine a reasonable award" for
    interim attorneys’ fees and costs. Id. at 3.

         For the reasons discussed below, I hereby GRANT IN PART Petitioner’s Interim Motion,
    awarding $25,838.30 in attorneys’ fees and $20,153.18 in costs, for a total of $45,991.48.

           II.     Legal Standard for Interim Attorneys’ Fees and Costs
       The Federal Circuit has held that an award of interim attorneys’ fees and costs is
permissible under the Vaccine Act. Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372
(Fed. Cir. 2010); Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008). The
Federal Circuit has stated, “Congress made clear that denying interim attorneys' fees under the
Vaccine Act is contrary to an underlying purpose of the Vaccine Act.” Cloer v. Sec’y of Health &
Human Servs., 675 F.3d 1358, 1361-62 (Fed. Cir. 2012).

        In Avera, the Federal Circuit stated, “[i]nterim fees are particularly appropriate in cases
where proceedings are protracted and costly experts must be retained.” 515 F.3d at 1352. Likewise,
in Shaw, the Federal Circuit held that “where the claimant establishes that the cost of litigation has
imposed an undue hardship and there exists a good faith basis for the claim, it is proper for the
special master to award interim attorneys' fees.” 609 F.3d at 1375. However, Avera did not
exclusively define when interim fees are appropriate; rather, it has been interpreted to allow
special masters discretion. See Kirk v. Sec’y of Health & Human Servs., No. 08-241V, 2013
WL 775396, at *2 (Fed. Cl. Spec. Mstr. Mar. 13, 2009); Bear v. Sec’y of Health & Human
Servs., No. 11-362V, 2013 WL 691963, at *4 (Fed. Cl. Spec. Mstr. Feb. 4, 2013). Even though
it has been argued that a petitioner must meet the three Avera criteria -- protracted proceedings,
costly expert testimony, and undue hardship -- special masters have instead treated these criteria as
possible factors in a flexible balancing test. Avera, 515 F.3d at 1352; Al-Uffi v. Sec’y of Health

3
  Petitioner’s claim originated while Petitioner’s attorney, Mr. Downing, was employed at Hennelly and
Steadman (“H&S”). See Interim Motion, ECF No. 40 at 3; see also Ex. A at 67. After the merger of H&S
with VCT, VCT continued the invoicing of the matter. As a result, Petitioner has submitted a second
invoice from H&S for the initial period during which Mr. Downing was employed by that firm. Id.
                                                      2
& Human Servs., No. 13-956V, 2015 WL 6181669, at *7 (Fed. Cl. Spec. Mstr. Sept. 30, 2015).

        The undue hardship inquiry looks at more than just financial involvement of a petitioner; it
also looks at any money expended by petitioner’s counsel. Kirk, 2013 WL 775396, at *2
(finding “the general principle underlying an award of interim fees was clear: avoid working a
substantial financial hardship on petitioners and their counsel.”). As his Interim Motion points out,
by the time an entitlement hearing may be scheduled in this case, Petitioner, and his counsel, will
have been litigating this claim for more than two years4. ECF No. 40 at 4. Thus, I find it reasonable
to award interim attorneys’ fees and costs at this juncture to avoid undue hardship for Petitioner’s
counsel.

            III.   Reasonable Attorneys’ Fees

        If interim fees are deemed appropriate, a petitioner is eligible for an interim award of
reasonable attorneys’ fees and costs if the special master finds that a petitioner brought his/her
petition in good faith and with a reasonable basis. §15(e)(1); Avera, 515 F.3d at 1352; Shaw, 609
F.3d 1372 (Fed. Cir. 2010); Woods, 105 Fed. Cl. at 154; Friedman v. Sec’y of Health & Human
Servs., 94 Fed. Cl. 323, 334 (Fed. Cl. 2010); Doe 21 v. Sec’y of Health & Human Servs., 89 Fed. Cl.
661, 668 (Fed. Cl. 2009); Bear, 2013 WL 691963, at *5; Lumsden v. Sec’y of Health & Human Servs.,
No. 97-588V, 2012 WL 1450520 at *4 (Fed. Cl. Spec. Mstr. March 28, 2012). Respondent did not
raise any objection to the good faith or reasonable basis for the claim. As there is no other reason to
deny the award of interim fees and costs, I will award Petitioner’s reasonable interim attorneys’ fees
and costs in this instant decision.

        While Respondent did not contest the billing rate or specific entries, the special master has
the discretion to reduce awards sua sponte, independent of enumerated objections. Sabella v. Sec’y
of Health & Human Servs., 86 Fed. Cl. 201, 208-09 (Fed. Cl. 2009); Savin v. Sec’y of Health &
Human Servs., 85 Fed. Cl. 303 (Fed. Cl. 2008), aff’d, No. 99-537V, 2008 WL 2066611 (Fed. Cl.
Spec. Mstr. Apr. 22, 2008).

                   a. Requested Hourly Rates5
       Petitioner requests compensation for her attorneys, Mr. Andrew Downing and Mr. Justin N.
Redman. Petitioner requests the following hourly rates for work performed by each attorney from
2014 to 2018:

               Mr. Downing          Mr. Redman
     2014      $350.00              n/a
     2015      $350.00              $195.00
     2016      $350.00              n/a
     2017      $375.00              n/a

4
    On November 11, 2018, Petitioner filed a Motion for Decision on the Record. ECF No. 47.
5
 Petitioner’s invoice includes requested hourly rates by year for attorneys and paralegals at VCT. Ex. A at
38. Mr. Downing’s hourly rate for work performed while at H&S is included in the attached H&S invoice.
Id. at 66.
                                                      3
   2018    $385.00               n/a

Petitioner also requests that paralegals of VCT, Ms. Danielle P. Avery (“Ms. Avery” or “DPA”) and
Mr. Robert W. Cain (“Mr. Cain” or “RWC”), be compensated for work performed from 2014-2018
at rates varying from $100.00 per hour to $135.00 per hour, based on the year and the individual
paralegal. See Interim Motion at 2.

                b. Hourly Rates Awarded

                         i. Mr. Downing
        Mr. Downing’s requested hourly rates for work performed between 2014-2017 have been
previously found to be reasonable by Special Master Gowen in his reasoned decision, Bales, on behalf
of J.B.A. v. Sec’y of Health and Human Servs., No. 15-882V, 2017 WL 2243094 (Fed. Cl. Spec. Mstr.
Apr. 26, 2017). Given that the hourly rates discussed in that case have been awarded on numerous
occasions, these identical rates for 2014-2017 will be awarded in full in this instant application. See
Bognar v. Sec’y of Health and Human Servs., No. 16-726V, 2017 WL 1376437 (Fed. Cl. Spec. Mstr.
Mar. 22, 2017); Semanisin v. Sec’y of Health and Human Servs., No. 15-1395V, 2017 WL 1398567
(Fed. Cl. Spec. Mstr. Mar. 21, 2017). Mr. Downing’s request for an increase in his hourly rate for
2018 also appears to be reasonable and has been awarded by this Court in several instances. See
Nicholas Zumwalt, on behalf of his minor child, L.Z. v. Sec’y of Health and Human Servs., No. 16-
994V, 2018 WL 6975184 (Fed. Cl. Spec. Mstr. Nov. 27, 2018); Otto v. Sec’y of Health and Human
Servs., No. 16-1144V, 2018 WL 5782873 (Fed. Cl. Spec. Mstr. Oct. 5, 2018). Thus, I find Mr.
Downing’s hourly rates for 2014-2018, as submitted by Petitioner, to be reasonable and will award
them as requested.

                         ii. Mr. Justin N. Redman

       Mr. Justin N. Redman’s requested hourly rate for 2015 has also been previously found
reasonable and awarded by other Special Masters and will be awarded in full in this present case.

                         iii. Paralegal rates

        VCT’s paralegal hourly rates range, listed above, has been previously awarded in Bales, and
I similarly find it to be reasonable in this case. Bales, 2017 WL 2243094, at *4.

                         iv. Summary of Hourly Rates Awarded

       In light of the above, the hourly rates to be awarded in this instant application are as follows:

           Mr. Downing           Mr. Redman
   2014    $350.00               n/a
   2015    $350.00               $195.00
   2016    $350.00               n/a
   2017    $375.00               n/a
   2018    $385.00               n/a
                                                  4
       Accordingly, Petitioner’s requested hourly rates for Mr. Downing, his associates, and
paralegals are awarded in full.

                  c. Reduction of Billable Hours6
        Based on my review of the billing records submitted with Petitioner’s Interim Motion (see
generally Ex. A), I find that the VCT firm billed hours that I consider “excessive, redundant, or
otherwise unnecessary.” Saxton v. Sec’y of Health and Human Servs., 3 F.3d at 1521 (Fed. Cir.
1993). For example, the time entries submitted with Petitioner’s Interim Motion reflects that
attorneys and/or paralegals of VCT billed for performing administrative tasks such as updating
internal files and electronically filing documents.7 Moreover, many of the administrative billing
entries also reflect instances of block billing, wherein attorneys and/or paralegals of VCT billed for
multiple tasks in a single entry, thus co-mingling time that is not compensable with time that is
compensable.8 For such entries, it is impossible to determine the precise portion of the time billed
that should be compensated. I note that it is counsel’s burden to document the fees claimed. See
Rodriguez v. Sec’y of Health & Human Servs., No. 06-559V, 2009 WL 2568468, at *8 (Fed. Cl.
Spec. Mstr. July 29, 2009); see also Broekelschen v. Sec’y of Health & Human Servs., 2008 U.S.
Claims LEXIS 399, at *13-14 (Fed. Cl. Spec. Mstr. Dec. 17, 2008) (reducing a petitioner’s attorneys’
fees award and criticizing counsel in that case for block billing). Indeed, the Vaccine Program’s
Guidelines for Practice state as follows: “[e]ach task should have its own line entry indicating the
amount of time spent on that task. Lumping together several unrelated tasks in the same time entry
frustrates the court’s ability to assess the reasonableness of the request.”9

6
 While not explicitly discussed below, Mr. Downing’s billing entries from H&S are included in the total
attorneys’ fees awarded to Petitioner. Ex. A at 66. I find the attorneys’ fees and hours billed by Mr.
Downing during his time with H&S to be reasonable. Id. at 66-67.
7
 For example, the following billing entries reflect attorneys and/or paralegals of VCT billing time for non-
compensable administrative tasks such as: (1) “Updat[ing] New Case Intake Form” (billing entries of RWC
on 6/24/2015; 10/12/2015; 11/4/2015; 11/10/2015; 11/18/2015; 1/18/2016; 2/2/2016; 2/23/2016; 3/2/2016
9/12/2016; 9/22/2016; 10/28/2016); (2) processing payments (billing entries of DPA from 2/5/2016;
2/8/2016; 2/12/2016; 2/15/2016; 3/2/2016; 9/16/2016; 10/24/2016; ); (3) “review file” (billing entries of
DPA from 1/27/2016). See Ex. A at 1-20.

The billing entries mentioned above are examples and are not exhaustive; they provide a mere sampling of
the many non-compensable administrative tasks billed by Mr. Downing and his paralegals.
8
 See generally Ex. A at 1-20, which lists the billing entries cited at footnote 5, above, collectively reflecting
attorneys and/or paralegals block billing for compensable tasks with non-compensable tasks.
9
 Guidelines for Practice Under the National Vaccine Injury Compensation Program ("Guidelines for
Practice") at 67 (revised Nov. 5, 2018) found at:
https://www.uscfc.uscourts.gov/sites/default/files/18.11.05%20Vaccine%20Guidelines.pdf (last visited on
December 10, 2018).

                                                        5
        I additionally find that the billing invoices reveal numerous billing entries reflecting instances
of duplicative billing where both paralegals, and in some instances Mr. Downing and his paralegals,
billed time for reviewing the same filing. The billing invoices in fact consistently reflect such
duplicate entries where several individuals completed, reviewed, or processed the same notices,
documents, or orders. 10 It has been a long-standing practice in the Vaccine Program to reduce
attorneys’ fees for such similar duplicative billing entries. See, e.g., Turkupolis v. Sec’y of Health &
Human Servs., No. 10-351V, 2015 WL 393343, at *5 (Fed. Cl. Spec. Mstr. Jan. 9, 2015) (reducing
fees and noting a pattern of billing 0.10 attorney hours for review of all filings, regardless of the
filing’s length or complexity); Z.H. v. Sec’y of Health & Human Servs., No. 16-123V, 2018 WL
1835210, at *3 (Fed. Cl. Spec. Mstr. Mar. 6, 2018) (reducing fees where “[m]ultiple attorneys
reviewed the same orders and notifications and all billed time for doing so”). Furthermore, I find
that the billing invoices for Ms. Avery contain numerous instances of excessive billing for receiving
or reviewing filings or records. Ex. A at 17-32. I do not find the standard 0.2 hours billed by Ms.
Avery to be a reasonable assessment of the time required to conduct many of these tasks, such as
receiving and reviewing Court notifications, ECF filings, Notice of Reassignments, etc. Id.
Accordingly, I find Ms. Avery’s invoice of hours spent performing paralegal duties to be excessively
inflated.

        Therefore, for the reasons outlined above, I will reduce the total award of Petitioner’s
requested attorneys’ fees of $30,398.00 by 15%. This results in a reduction of Petitioner’s Vaccine
Act attorneys’ fees award by $4,559.70.11

          Therefore, Petitioner is awarded attorneys’ fees in the amount of $25,838.30.12

           IV.    Reasonable Attorneys’ Costs
        Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira v. Sec’y
of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Reasonable costs include the costs of
obtaining medical records and expert time incurred while working on a case. Fester v. Sec’y of Health
& Human Servs., 10-243V, 2013 WL 5367670, at *16 (Fed. Cl. Spec. Mstr. Aug. 27, 2013). When
petitioners fail to carry their burden, such as by not providing appropriate documentation to
substantiate a requested cost, special masters have refrained from awarding such costs. See, e.g.,

10
  These entries are described as receiving, reviewing, and/or processing: (1) medical records (billing entries
of 11/4/2015; 11/9/2015; 11/18/2015; 12/1/2015; 1/18/2016; 1/19/2016; 3/15/2016; 9/22/2016; 10/24/2016;
10/28/2016); (2) email client (billing entry of 3/29/2016). See Ex. A at 1-20.

The billing entries mentioned above are examples and are not exhaustive; they provide a mere sampling of
the numerous duplicative tasks billed by the paralegals and, in several instances, Mr. Downing.
11
     Attorneys’ fees requested                                    =       $30,398.00
     Percentage of reduction (15%)                                =        0.15
     15% reduction amount                                         =       $4,559.70
12
     Attorneys’ fees requested                                    =       $30,398.00
     15% reduction                                                =       ($4,559.70)
      Total awarded Vaccine Act attorneys’ fees                   =       $25,838.30

                                                      6
Gardner-Cook v. Sec’y of Health & Human Servs., No. 99-480V, 2005 WL 6122520, at *4 (Fed. Cl.
Spec. Mstr. June 30, 2005).

         Petitioner requests $21,199.68 in attorneys’ costs. Ex. A at 37, ECF No. 40-1. The requested
costs herein can be sorted into two different categories: (1) expert costs and (2) miscellaneous case
costs, to include costs for filing fees, obtaining medical records, and mailing costs.

                 a. Expert costs for Petitioner’s expert, Dr. Thomas Zizic

                          i. Expert Hourly Rate

        Petitioner requests costs for the work performed by Dr. Zizic as an expert in this case. Dr.
 Zizic billed at a rate of $400 per hour for a total of $18,860. See Ex. A at 35-37, 61-64. In examining
 those billing entries and taking into account Dr. Zizic’s qualifications and experience in the Program,
 I find Dr. Zizic’s requested rate to be reasonable. Dr. Zizic’s rate has been previously deemed
 reasonable by other special masters in the Program. See Bourche v. Sec’y of Health and Human
 Servs., No. 15-232V, 2017 WL 2480936 (Fed. Cl. Spec. Mstr. May 11, 2017). Accordingly, the
 hourly rate of $400 per hour requested for Dr. Zizic’s expert costs will be awarded in full.

                          ii. Time Expended by Expert

        Petitioner submitted two invoices detailing the work Dr. Zizic performed in this case. The first
 invoice includes the work Dr. Zizic performed for the initial expert report, totaling 36.75 hours. Ex.
 A at 63. The second invoice presumably reflects the work Dr. Zizic completed for the rebuttal expert
 report, totaling 10.4 hours. Id. at 64. Combined, Dr. Zizic’s time spent on Petitioner’s case, as
 invoiced, was 47.15 hours. Id. at 63-64.

       Dr. Zizic’s first invoice includes detailed entries illustrating the type of task completed and the
 time expended on each task. Ex. A at 61-63. Dr. Zizic spent a total of 10.9 hours reviewing 582
 pages of medical records, 2.75 hours conducting literature search, 13.15 hours researching and
 reviewing 193 pages of medical literature, and 10.6 hours drafting his report. Id. Dr. Zizic’s expert
 report was 22 pages in length, of which only 7 pages contains substantive materials. ECF No. 16.
 The remaining portion of the report outlines a chronology of the medical history of Petitioner. Id. I
 find Dr. Zizic’s total time spent on drafting the first report, 34.95 hours, to be slightly inflated. I find
 the remaining 1.8 hours spent on scanning articles and correspondence, however, to be a reasonable
 amount of time spent on such tasks.

       The entries of Dr. Zizic’s second invoice, while presumably just as detailed and regarding the
 second expert report, cannot be discerned because Petitioner photocopied the invoice with the proof
 of payment to Dr. Zizic directly covering the majority of the entries. While I still find costs associated
 with the production of this second report to be reasonable, it is difficult to ascertain specifically
 whether the hours billed for each task were reasonable.

       Accordingly, due to the slightly excessive amount of time billed for the two reports, I reduce
 the hours awarded for Dr. Zizic’s expert report by 5%, to 44.79 hours. I award Petitioner a total of

                                                     7
 $17,916.00 in expert costs.13

                   b. Miscellaneous case costs14

        I have reviewed all other costs totaling $2,339.68 incurred by the VCT firm, including costs
 for obtaining medical records, filing fees, and mailing costs. See Ex. A at 37. I find most of those
 expenses to be reasonable. However, the firm has also included charges for incoming and outgoing
 faxes. Special Master Moran articulated in Bourche that “the operation of a fax machine is part of a
 law firm’s general overhead and, therefore, separate costs should not be charged.” See Bourche, 2017
 WL 2480936; See also Muccala v. Sec’y of Health and Human Servs., No. 17-548V, 2018 WL
 5024014 (Fed. Cl. Spec. Mstr. Jul. 27, 2018). I agree that billing for the use of fax is not appropriate,
 especially since other less expensive methods of correspondence are available. Therefore, I reduce
 the fees incurred by $102.50.

                   c. Summary of Attorneys’ Costs Awarded

       Based upon the above analysis, calculating the reductions for attorneys’ costs results in the
following adjustments:

      Attorneys’ costs requested:                        =      $21,199.68
      Reductions for Dr. Zizic’s expert costs:           =      ($944.00)
 _____Reduction for fax usage                            =      ($102.50)
      Total Attorneys’ costs awarded:                           $20,153.18

           V.      Conclusion

        Accordingly, in the exercise of the discretion afforded to me in determining the propriety of
 interim fees awards, and based on the foregoing, I GRANT IN PART Petitioner’s Interim Motion,
 as follows:

                          Amount Requested            Reduction                Total Awarded

      Attorneys’ Fees     $30,398.00                  $4,559.70                $25,838.30
      Litigation Costs    $21,199.68                  $1,046.5                 $20,153.18

13
     Total hours invoiced                                =      47.15 hours
     Percentage of reduction (5%)                        =      0.05
     Total Hours Awarded                                 =      44.79 hours

     Total hours awarded                                 =      44.79 hours
     Hourly rate awarded                                 =      $400/hour
     Total Expert Costs Awarded                          =      $17,916.00

14
  While not explicitly discussed below, Mr. Downing’s billing entries from H&S are included in the total
attorneys’ costs awarded to Petitioner. Ex. A at 67. I find the attorneys’ costs of $96.99 billed by Mr.
Downing during his time with H&S to be reasonable. Id. at 67.
                                                     8
                                                                  Grand Total: $45,991.48

        I therefore award a total of $45,991.48 in interim fees and costs as a lump sum in the form of
a check jointly payable to Petitioner and Petitioner’s counsel of record, Mr. Andrew D. Downing,
Esq., representing attorneys’ fees in the amount of $25,838.30, plus costs in the amount of $20,153.18.

     In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of Court
 SHALL ENTER JUDGMENT in accordance with this decision.15

        IT IS SO ORDERED.

                                                                  s/ Katherine E. Oler
                                                                   Katherine E. Oler
                                                                   Special Master

15
  Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of a notice
renouncing the right to seek review.
                                                       9