DAVIS, Chief Justice:
This criminal appeal was filed by Mitchell Coles (hereinafter "Mr. Coles") from an order of the Circuit Court of Monongalia County that denied his Motion for Correction of Sentence. Mr. Coles' motion sought to vacate one of two felony charges he pled guilty to under Case No. 99-F-28. Mr. Coles argued below and now on appeal that the two felony convictions violated double jeopardy principles. After a careful review of the briefs, the record submitted on appeal and listening to the argument of the parties, we affirm.
On January 7, 1999, a grand jury returned a five-count felony indictment against Mr. Coles in Case No. 99-F-28.
While prosecution on the indictment was pending, the State filed a six-count information against Mr. Coles on December 28, 1999, in Case No. 99-F-175.
On the date that the information was filed, December 28, 1999, Mr. Coles entered into a plea agreement with the State.
In September 2000, Mr. Coles filed a motion to reduce his sentence. Mr. Coles contended in his motion that he was remorseful, that he was sufficiently punished and that he had an excellent institutional record. The circuit court denied the motion. In February 2001, Mr. Coles filed a second motion to reduce his sentence. The second motion apparently argued the same reasons for reduction that were contained in the first motion. The circuit court denied the second motion. In December 2006, Mr. Coles filed a third motion for reduction of sentence. The circuit court denied the motion on the grounds that it was filed beyond the 120 day time period allowed by Rule 35(b) of the West Virginia Rules of Criminal Procedure.
Mr. Coles was released on parole in April 2007, and he moved to Pennsylvania. However, as a result of a felony conviction in the State of Virginia, Mr. Coles' parole was revoked,
In May 2011, Mr. Coles filed his fourth motion to reduce his sentence. The circuit court denied the motion as outside the time period of Rule 35(b). In November 2011, Mr. Coles filed a motion to correct his sentence under Rule 35(a) of the West Virginia Rules of Criminal Procedure.
This is an appeal from an order by the circuit court denying Mr. Coles' Rule 35(a) motion for correction of his sentence. We apply the following standard of review for such an order:
Syl. pt. 1, State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).
The principle argument made by Mr. Coles is that, under our decision in State v. Rogers, 209 W.Va. 348, 547 S.E.2d 910 (2001), his conviction and sentence for false pretense and fraudulent scheme under the indictment violate the Double Jeopardy Clause of the state and federal constitutions.
The first issue we will address is the State's contention that Mr. Coles waived his double jeopardy claim. The State relies on United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927, and State v. Proctor, 227 W.Va. 352, 709 S.E.2d 549, for the proposition that a double jeopardy claim can be waived. We will examine both cases separately.
To begin, in Broce a federal grand jury in Kansas returned an indictment in 1981 charging two defendants, Ray C. Broce and Broce Construction Co., Inc., with conspiracy to violate the Sherman Act. See 15 U.S.C. § 1.
The decision in Broce made clear that, as a general rule, a claim of double jeopardy cannot be used to collaterally attack a guilty plea. Broce set out the governing principles for this issue as follows:
Broce, 488 U.S. at 569, 109 S.Ct. at 762, 102 L.Ed.2d 927. The opinion in Broce explained the "lack of power in a court" by citing to the decisions in Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975). See also State v. McGilton, 229 W.Va. 554, 559, 729 S.E.2d 876, 881 (2012) (providing an interpretation of Blackledge and Menna). The opinion explained that under Blackledge and Menna a defendant may attack a plea conviction on double jeopardy grounds where, "judged on its face — the charge is one which the State may not constitutionally prosecute." Broce, 488 U.S. at 575, 109 S.Ct. at 765, 102 L.Ed.2d 927 (internal quotations and citation omitted).
The opinion in Broce concluded that the guilty pleas by the defendants were counseled and voluntary. Therefore, the convictions could not be collaterally attacked on double jeopardy grounds. It was further determined that the face of the record
Broce, 488 U.S. at 576, 109 S.Ct. at 766, 102 L.Ed.2d 927. The opinion went on to reverse the judgment of the Tenth Circuit.
The decision in Broce makes clear, and we so hold, that if a guilty plea is shown to have been intelligently and voluntarily entered into,
Under the authority of Broce, Mr. Coles is limited to showing that his guilty plea was not entered into intelligently and voluntarily. Mr. Coles has not made such a showing. In fact, the limited record in this case would not permit such an analysis because Mr. Coles did not include a transcript of the hearing in which his plea was accepted by the court. Moreover, Mr. Coles has not argued that the face of the limited record in this case shows that the circuit court did not have power to enter a conviction or impose a sentence under the indictment for the false pretense and fraudulent scheme charges. Even if such an argument were made, it would be unavailing. The face of the limited record in this case, i.e., the indictment, does not reveal a lack of jurisdiction over the offenses of false pretense and fraudulent scheme.
Mr. Coles suggests that our decision in State v. Greene, 196 W.Va. 500, 473 S.E.2d 921 (1996), supports setting aside his fraudulent scheme conviction on double jeopardy grounds. We disagree. In Greene, the defendant's property was confiscated by the State in a forfeiture proceeding. After the forfeiture proceeding terminated, the defendant was indicted on a felony drug charge. The defendant pled guilty to a reduced drug charge. Subsequently, the defendant filed a motion for correction of sentence. The defendant argued that his sentence violated double jeopardy. The circuit court denied the motion. On appeal, the majority opinion never mentioned the decision in Broce. Instead, the majority opinion focused upon whether the forfeiture proceeding was civil or criminal. After determining that the forfeiture proceeding was civil, the majority opinion concluded that double jeopardy protections did not apply to civil proceedings. In the concurring opinion by Justice Cleckley, he addressed the application of Broce. Justice Cleckley noted that Broce was not applicable to the facts in Greene because the defendant was not challenging whether he was guilty of the drug charge. Instead, he was challenging whether he already was punished for his conduct through the forfeiture proceeding. Neither the majority opinion, nor Justice Cleckley's observations in Greene, have application to Mr. Coles' conviction and sentence for false pretense and fraudulent scheme. Nothing in the record in this case shows that Mr. Coles was previously
The State also contends that the general contract principles discussed in State v. Proctor, 227 W.Va. 352, 709 S.E.2d 549 (2011), prevent Mr. Coles from attacking his guilty plea.
The second reason cited by Proctor for denying the defendant's double jeopardy claim was that the defendant "waived this assignment of error." Proctor, 227 W.Va. at 362, 709 S.E.2d at 559. Although the opinion cited to the decision in Broce, it did not rely on the waiver grounds recognized in that decision. See Proctor, 227 W.Va. at 363 n. 18, 709 S.E.2d at 560 n. 18. Instead, Proctor relied upon general contract principles that underlie plea agreements:
Proctor, 227 W.Va. at 362-63, 709 S.E.2d at 559-60.
We find that Proctor's contract analysis is equally applicable under the facts of
Mr. Coles has correctly argued that our decision in State v. Rogers, 209 W.Va. 348, 547 S.E.2d 910, found that double jeopardy principles precluded convicting and sentencing a defendant for false pretense and fraudulent scheme based upon conduct arising out of the same transaction or occurrence. Insofar as we have determined that Mr. Coles waived his double jeopardy argument, he cannot invoke the protections of Rogers. Even though Mr. Coles cannot rely on Rogers, we take this opportunity to revisit the legal soundness of this opinion.
Before reexamining Rogers we wish to be clear that we are cognizant of the impact of stare decisis on the decisions of this Court. "[T]he doctrine of stare decisis requires this Court to follow its prior opinions." State Farm Mut. Auto. Ins. Co. v. Rutherford, 229 W.Va. 73, 83, 726 S.E.2d 41, 51 (2011) (Davis, J., concurring, in part, and dissenting, in part). We have held that "[a]n appellate court should not overrule a previous decision recently rendered without evidence of changing conditions or serious judicial error in interpretation sufficient to compel deviation from the basic policy of the doctrine of stare decisis, which is to promote certainty, stability, and uniformity in the law." Syl. pt. 2, Dailey v. Bechtel Corp., 157 W.Va. 1023, 207 S.E.2d 169 (1974). Moreover,
Woodrum v. Johnson, 210 W.Va. 762, 766 n. 8, 559 S.E.2d 908, 912 n. 8 (2001) (internal quotations and citations omitted). While "this Court is loathe to overturn a decision so recently rendered, it is preferable to do so where a prior decision was not a correct statement of law." Murphy v. Eastern Am. Energy Corp., 224 W.Va. 95, 101, 680 S.E.2d 110, 116 (2009). As discussed below, Rogers misapplied basic cannons of statutory construction in its determination that (1) the Legislature did not express a clear intent on whether a defendant may be punished for
The defendant in Rogers was convicted and sentenced for the crimes of false pretense, embezzlement, and two counts of fraudulent scheme. The defendant in Rogers attacked his conviction on sufficiency of the evidence and other grounds. However, as pointed out by the dissenting opinion in Rogers, "the majority opinion ... utilized constitutional double jeopardy principles to analyze the issues in this case when the defendant did not invoke double jeopardy as a basis for challenging the convictions and sentences." Rogers, 209 W.Va. at 363, 547 S.E.2d at 925 (Davis, J., dissenting). In reexamining Rogers' pronouncements on false pretense and fraudulent scheme, we perform an independent analysis.
The Double Jeopardy Clause of the Fifth Amendment of the federal constitution provides that no person shall be "subject for the same offense to be twice put in jeopardy of life or limb[.]" This clause affords three separate constitutional protections for criminal defendants:
North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). In Conner v. Griffith, 160 W.Va. 680, 238 S.E.2d 529 (1977), we explained that the protections provided for in the Double Jeopardy Clause in Article III, Section 5 of the state constitution were at least as coextensive as those in the Fifth Amendment.
160 W.Va. 680, 238 S.E.2d 529.
The issue in the Rogers case involved the third component of the Double Jeopardy Clause, which protects against multiple punishments for the same offense. The United States Supreme Court has observed that, "[w]ith respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983). In other words, if the Legislature has made clear that separate punishments may be imposed under different statutes for the same criminal conduct, the Double Jeopardy Clause will not prevent such punishment. Therefore, "the first step in the double jeopardy analysis is to determine whether the legislature ... intended that each violation be a separate offense." Garrett v. United States, 471 U.S. 773, 778, 105 S.Ct. 2407, 2411, 85 L.Ed.2d 764 (1985). We have previously summarized the analysis to be used as follows:
Syl. pt. 8, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).
With respect to statutory construction, we have indicated that "[t]he basic and cardinal principle, governing the interpretation and application of a statute, is that the Court should ascertain the intent of the Legislature at the time the statute was enacted, and in the light of the circumstances prevailing at the time of the enactment." Syl. pt. 1, Pond Creek Pocahontas Co. v. Alexander, 137 W.Va. 864, 74 S.E.2d 590 (1953). Moreover, "[w]here the meaning of a statute is clear and its provisions are unambiguous, this Court will not undertake to construe and interpret it, but will apply the statute as its exact terms require." Syl. pt. 2, Pond Creek, id.
The controlling statute for our analysis is the fraudulent scheme offense which is set out under W. Va.Code § 61-3-24d (1995) as follows:
The legislative intent regarding a prosecution for fraudulent scheme is clearly set out under W. Va.Code § 61-3-24d(c). This provision states without qualification that a defendant may be prosecuted under it "notwithstanding any other provision of this code." The decision in Rogers tersely found that this provision did not express a legislative intent to allow a separate punishment for fraudulent scheme. Rogers addressed the matter summarily as follows:
Rogers, 209 W.Va. at 357, 547 S.E.2d at 919. This statement by Rogers is a mere conclusion without any accompanying analysis to explain how such a conclusion was reached. As the dissent in Rogers pointed out:
Rogers, 209 W.Va. at 364, 547 S.E.2d at 926 (Davis, J., dissenting). The dissent also made the following observations:
Rogers, 209 W.Va. at 364 n. 2, 547 S.E.2d at 926 n. 2 (Davis, J., dissenting). Consequently, we adopt the sound reasoning of the dissent in Rogers.
Insofar as it is clear to this Court that the Legislature intended to allow punishment for a fraudulent scheme offense, in addition to any other offense, we need not perform a Blockburger analysis to discern whether false pretense and fraudulent scheme each contain a different element of prosecution.
In view of the foregoing, the circuit court's order entered on May 2, 2013, denying Mr. Coles' Motion for Correction of Sentence, is affirmed.
Affirmed.
Justice BENJAMIN concurs and reserves the right to file a concurring opinion.
BENJAMIN, Justice, concurring:
I agree with the Majority's decision to affirm Mr. Coles's conviction. I write separately because I disagree with the Majority's decision to overrule State v. Rogers, 209 W.Va. 348, 547 S.E.2d 910 (2001). The dispositive issue in this case was whether Mr. Coles waived his double jeopardy claim. Despite concluding that he waived the claim, thereby resolving this case, the Majority opinion proceeds to then examine and ultimately overrule Rogers — a course of action having no bearing on the outcome of the case at bar. See 5 C.J.S. Appeal and Error § 822 (2007) ("Appellate courts ... will generally not decide questions not necessary or material to the determination of the cause ... or question a decision which would not affect the result."); Law Offices of Ronald J. Palagi P.C., L.L.O. v. Howard, 275 Neb. 334, 747 N.W.2d 1, 17 (2008); ("An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it."); State Bd. of Equalization v. Jackson Hole Ski Corp., 745 P.2d 58, 59 (Wyo.1987) ("Appellate courts ... must not ... declare principles of law which cannot have any practical effect in settling the claims of the litigants."); State ex rel. Meade v. Marion Superior Court, Room No. 1, 242 Ind. 22, 175 N.E.2d 423, 424 (1961) ("[I]t has been the frequent practice of the Court, in cases where a single point would put an end to a case, to decide that point and no other."); Carson v. Ross, 509 N.E.2d 239, 244 (Ind.Ct.App.1987) ("Issues which are unnecessary to a full and fair determination of an appeal will not be addressed."). While I, too, may question Rogers, this case was not the proper time to raise the issue. I would have left the question of Rogers's validity to another day.