Cross v. Pszczolkowski
Decision Date | 12 March 2018 |
Docket Number | No. 16-1093,16-1093 |
Court | West Virginia Supreme Court |
Parties | James Cross Jr., Petitioner Below, Petitioner v. Karen Pszczolkowski, Warden, Northern Correctional Facility, Respondent Below, Respondent |
Petitioner James Cross Jr., by counsel Douglas F. Kobayashi, appeals the Circuit Court of Berkeley County's October 27, 2016, order denying his amended petition for writ of habeas corpus. Respondent Karen Pszczolkowski, Warden of Northern Correctional Facility, by counsel Cheryl K. Saville, filed a response and supplemental appendix. Petitioner filed a reply. Following appointment of counsel to assist with his appeal, petitioner filed a supplemental brief, and respondent filed a supplemental response. On appeal, petitioner argues that his recidivist life sentence is void due to the circuit court's failure to "duly caution" him in accordance with West Virginia Code § 61-11-19.
This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.
In June of 2012, petitioner was convicted of second-degree murder, attempted second-degree murder, and malicious assault. Following these convictions, the State filed a recidivist information seeking to enhance petitioner's malicious assault sentence to a life sentenced based upon two prior separate felony convictions.
On August 27, 2012, petitioner was arraigned on the recidivist information. At his arraignment, the following exchange occurred:
On October 23, 2012, a recidivist trial was held, and the jury found that petitioner was the same person who previously committed the two felonies alleged in the recidivist information. On December 3, 2012, petitioner was sentenced to life in prison with the possibility of parole based upon his status as a habitual offender for his malicious assault conviction, forty years of incarceration for his second-degree murder conviction, and one to three years of incarceration for his attempted second-degree murder conviction. The sentences were ordered to run consecutively. This Court affirmed petitioner's sentences following his direct appeal. See State v. Cross, No. 13-0260, 2013 WL 5966968 (W.Va. Nov. 8, 2013)(memorandum decision).
Petitioner thereafter filed a petition for writ of habeas corpus. Following appointment of counsel, petitioner filed an amended petition on August 31, 2016. In his amended petition, petitioner alleged that the trial court was without jurisdiction to impose a recidivist life sentence due to its failure to comply with the mandatory requirements of the recidivist statute, West Virginia Code § 61-11-19. Specifically, petitioner maintained that he was not "duly cautioned," as required by the statute. On October 27, 2016, the circuit court denied petitioner's amended petition. It is from this order that petitioner appeals.
This Court reviews appeals of circuit court orders denying habeas corpus relief under the following standard:
Syllabus point 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).
Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).
On appeal, petitioner argues that he was not "duly cautioned" in accordance with the requirements of West Virginia Code § 61-11-19, which deprived the circuit court of jurisdiction to impose his recidivist life sentence and violated his due process rights. Petitioner argues further that the record does not reflect the circuit court's finding that he affirmatively expressed his desire to remain silent. Finally, petitioner contends that the circuit erroneously employed a harmless error analysis in concluding that, even assuming he was not duly cautioned, such failure did not prejudice him.
Syl. Pt. 4, in part, State ex rel. Mounts v. Boles, 147 W.Va. 152, 126 S.E.2d 393 (1962).
Petitioner first argues that he was not "duly cautioned" as required under West Virginia Code § 61-11-19 and Boles. Petitioner contends that the circuit court's failure to "perform this procedural colloquy as a matter of fact constitutes a denial of due process because it leaves the court without jurisdiction." Petitioner, however, ignores our pronouncement that "the defendant, before he acknowledges his identity as the person who has been previously convicted, must be duly cautioned[.]" Cain, 178 W.Va. at 356, 359 S.E.2d at 584 (emphasis added). Petitioner herein...
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