Holcomb v. Ballard, No. 12–0396.

CourtSupreme Court of West Virginia
Writing for the CourtDAVIS
Citation232 W.Va. 253,752 S.E.2d 284
PartiesRobert L. HOLCOMB, Petitioner v. David BALLARD, Warden, Mount Olive Correctional Complex, Respondent.
Docket NumberNo. 12–0396.
Decision Date17 October 2013

232 W.Va. 253
752 S.E.2d 284

Robert L. HOLCOMB, Petitioner
v.
David BALLARD, Warden, Mount Olive Correctional Complex, Respondent.

No. 12–0396.

Supreme Court of Appeals of
West Virginia.

Submitted Oct. 1, 2013.
Decided Oct. 17, 2013.


[752 S.E.2d 285]



Syllabus by the Court

1. The procedural recidivist requirements of W. Va.Code § 61–11–19 (1943) (Repl.Vol.2010) are mandatory, jurisdictional, and not subject to harmless error analysis.

2. “ ‘Habitual criminal proceedings providing for enhanced or additional punishment on proof of one or more prior convictions are wholly statutory. In such proceedings, a court has no inherent or common law power or jurisdiction. Being in derogation of the common law, such statutes are generally held to require a strict construction in favor of the prisoner.’ State ex rel. Ringer v. Boles, 151 W.Va. 864, 871, 157 S.E.2d 554, 558 (1967).” Syllabus point 2, Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981).

3. A recidivist sentence under W. Va.Code § 61–11–19 (1943) (Repl.Vol.2010) is automatically vacated whenever the underlying felony conviction is vacated.


Steven B. Nanners, Nanners & Willett, Buckhannon, WV, for Petitioner.

Patrick Morrisey, Attorney General, Benjamin Yancey, Assistant Attorney General, Charleston, WV, for Respondent.


DAVIS, Justice:

This appeal was brought by Robert L. Holcomb (hereinafter referred to as “Mr. Holcomb”) from an order of the Circuit Court of Nicholas County that denied his petition for habeas corpus relief. In this appeal, Mr. Holcomb argues that the circuit court committed error in ruling that his recidivist life imprisonment sentence was valid, that his life imprisonment sentence was not disproportionate, and that his trial counsel did not improperly advise him to stipulate to the recidivist charges. After a careful review of the briefs, the record submitted on appeal, and listening to the argument of the parties, we reverse and remand this case for further proceedings consistent with this opinion.

I.
FACTUAL AND PROCEDURAL HISTORY

On April 5, 2006, a jury convicted Mr. Holcomb of child neglect creating a substantial risk of injury or death.1 On that same day, the State filed a recidivist information charging Mr. Holcomb with having previously been convicted of five felony offenses.2 On August 1, 2006, a jury convicted Mr. Holcomb on the recidivist charges and he was ultimately sentenced to life imprisonment.3 On October 13, 2006, the trial court granted Mr. Holcomb a new trial on the underlying child neglect felony.4

A second trial on the child neglect felony was held on January 4, 2007. On the same day, a jury returned a verdict finding Mr. Holcomb guilty of the child neglect felony charge. The State filed a recidivist information

[752 S.E.2d 286]

on January 5, 2007, seeking a life imprisonment sentence.5 Mr. Holcomb was not served with a copy of the information until January 8, 2007, the last day of the term of court. At a new term of court on April 30, 2007, Mr. Holcomb appeared before the trial court and admitted that he was the person named in each count of the information.6 The trial court subsequently sentenced Mr. Holcomb to life imprisonment. On February 13, 2008, Mr. Holcomb filed a petition for appeal with this Court, which was refused.7

On March 17, 2009, Mr. Holcomb filed a pro se habeas corpus petition with the circuit court. Following the appointment of counsel, Mr. Holcomb filed an amended habeas petition on April 22, 2011.8 An omnibus hearing was held on August 26, 2011. Subsequent to the hearing, the trial court entered an order denying habeas relief. This appeal timely followed.

II.
STANDARD OF REVIEW

This appeal is from an order of the circuit court denying Mr. Holcomb habeas corpus relief. In Syllabus point 1 of Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006), we held the following regarding the standard of review:

In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three-prong standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standard; and questions of law are subject to a de novo review.

With this standard in mind, we proceed to determine whether the circuit court committed error in denying habeas corpus relief to Mr. Holcomb.


III.
DISCUSSION

Mr. Holcomb contends that his second recidivist life sentence was invalid because he was not arraigned on the recidivist information during the same term of court in which he was convicted on retrial for the underlying offense. 9 The trial court held that any error in not arraigning Mr. Holcomb on the recidivist charge, during the term of court in which he was convicted, was harmless error. Here, the State now disagrees with the trial court. The State concedes that the second recidivist proceeding was invalid. However, the State urges this Court to vacate the life sentence imposed under the second recidivist proceeding, and remand the case so that the trial court can sentence Mr. Holcomb to life imprisonment under the first recidivist sentence.

We begin by observing that the issue presented requires this Court to review the language of the recidivist statute. Our rules of statutory construction are well established. “The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.” Syl. pt. 1, Smith v. State Workmen's Comp. Comm'r, 159 W.Va. 108, 219 S.E.2d 361 (1975). “In ascertaining legislative intent, effect must be given to each part of the statute and to the statute as a whole so as to accomplish the general purpose of the legislation.”

[752 S.E.2d 287]

Vanderbilt Mortg. & Fin., Inc. v. Cole, 230 W.Va. 505, 510–11, 740 S.E.2d 562, 567–68 (2013) (internal quotation marks and citations omitted). We have recognized that “[w]hen a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute.” Syl. pt. 5, State v. General Daniel Morgan Post No. 548, V.F.W., 144 W.Va. 137, 107 S.E.2d 353 (1959). “Only when such language is ambiguous may we interpret and construe a statutory provision.” Webster Cnty. Comm'n v. Clayton, 206 W.Va. 107, 112, 522 S.E.2d 201, 206 (1999). We should also note as relevant to this case, “silence does not, in and of itself, render a statute ambiguous.” Griffith v. Frontier West Virginia, Inc., 228 W.Va. 277, 285, 719 S.E.2d 747, 755 (2011). Moreover, “it is not for [courts] arbitrarily to read into [a statute] that which it does not say. Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted.” Banker v. Banker, 196 W.Va. 535, 546–47, 474 S.E.2d 465, 476–77 (1996).

The procedure for imposing recidivist punishment on a defendant is contained in W. Va.Code § 61–11–19 (1943) (Repl.Vol.2010).10 This statute provides in relevant part as follows:

It shall be the duty of the prosecuting attorney when he has knowledge of former sentence or sentences to the penitentiary of any person convicted of an offense punishable by confinement in the penitentiary to give information thereof to the court immediately upon conviction and before sentence. Said court shall, before expiration of the term at which such person was convicted, cause such person or prisoner to be brought before it, and upon an information filed by the prosecuting attorney, setting forth the records of conviction and sentence, or convictions and sentences, as the case may be, and alleging the identity of the prisoner with the person named in each, shall require the prisoner to say whether he is the same person or not....
(Emphasis added).
This Court previously has held that “[t]he language of the above quoted statute is clear and the procedural requirements contained therein are mandatory.” State ex rel. Foster v. Boles, 147 W.Va. 655, 658, 130 S.E.2d 111, 114 (1963). First, the statute requires a prosecutor to present an information to a court after a defendant is convicted, but before the defendant is sentenced. Second, a court must arraign the defendant on the information before expiration of the term of court at which the defendant was convicted.

In the analysis that follows, we will separately examine the trial court's harmless error ruling and the State's alternative sentencing proposal.

(1) Failure to arraign Mr. Holcomb on the recidivist charge during the same term of court. As previously noted, under W. Va.Code § 61–11–19, a trial court is obligated to arraign a defendant on a recidivist information during the term of court in which the defendant is convicted. The trial court and the parties agree that Mr. Holcomb was not arraigned on the second recidivist information during the term of court of his second conviction. The trial court found that this error was harmless and that Mr. Holcomb could be arraigned on the second recidivist information during a subsequent term of court. There is no support in our cases for the trial court's harmless error ruling. The seminal case on this issue is State ex rel. Housden v. Adams, 143 W.Va. 601, 103 S.E.2d 873 (1958).

The defendant in Housden was convicted by a jury of sodomy. Before the defendant was sentenced, but after the term of court had expired, the State filed a recidivist information charging the defendant with having been convicted of three prior felonies. The trial court arraigned the defendant on the information, and the defendant admitted that he was the person named in the information. The trial court thereafter sentenced the defendant

[752 S.E.2d 288]

to life imprisonment.11 The defendant filed a habeas corpus petition directly with this Court seeking to vacate the recidivist sentence. The defendant argued that the trial court...

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9 practice notes
  • State v. Plymail, No. 14-0016
    • United States
    • Supreme Court of West Virginia
    • November 20, 2015
    ...a week left. In support of his position, petitioner cites State v. Cavallaro, 210 W.Va. 237, 557 S.E.2d 291 (2001) and Holcomb v. Ballard 232 W.Va. 253, 752 S.E.2d 284 (2013). In Cavallaro, the trial court found a recidivist life imprisonment sentenced void and unenforceable because the Sta......
  • State v. Angle, No. 13–0574.
    • United States
    • Supreme Court of West Virginia
    • June 5, 2014
    ...is automatically vacated whenever the underlying felony conviction is vacated.” Syl. Pt. 3, [759 S.E.2d 789]Holcomb v. Ballard, 232 W.Va. 253, 752 S.E.2d 284 (2013).Robyn M. Danford, Esq., Whiteman Burdette, PLLC, Fairmont, WV, Eric K. Powell, Esq., Powell Law Office, Parkersburg, WV, for P......
  • State v. Jensen, No. 13-1088
    • United States
    • Supreme Court of West Virginia
    • June 13, 2014
    ...set forth an assignment of error that includes this allegation, we find that petitioner has waived this argument. See Holcomb v. Ballard, 232 W.Va. 253, ___ n.8, 752 S.E.2d 284, 286 n.8 (2013). 3. According to the State's Notice of Intent to Introduce Evidence filed on January 30, 2013, M.S......
  • Cross v. Pszczolkowski, No. 16-1093
    • United States
    • Supreme Court of West Virginia
    • March 12, 2018
    ...regarding any failure to duly caution him is improper and warrants reversal.1 Indeed, we held in Syllabus Point 1 of Holcomb v. Ballard, 232 W.Va. 253, 752 S.E.2d 284 (2013) that "[t]he procedural recidivist requirements of W.Va. Code § 61-11-19 (1943) . . . are mandatory, jurisdictional, a......
  • Request a trial to view additional results
9 cases
  • State v. Plymail, No. 14-0016
    • United States
    • Supreme Court of West Virginia
    • November 20, 2015
    ...a week left. In support of his position, petitioner cites State v. Cavallaro, 210 W.Va. 237, 557 S.E.2d 291 (2001) and Holcomb v. Ballard 232 W.Va. 253, 752 S.E.2d 284 (2013). In Cavallaro, the trial court found a recidivist life imprisonment sentenced void and unenforceable because the Sta......
  • State v. Angle, No. 13–0574.
    • United States
    • Supreme Court of West Virginia
    • June 5, 2014
    ...is automatically vacated whenever the underlying felony conviction is vacated.” Syl. Pt. 3, [759 S.E.2d 789]Holcomb v. Ballard, 232 W.Va. 253, 752 S.E.2d 284 (2013).Robyn M. Danford, Esq., Whiteman Burdette, PLLC, Fairmont, WV, Eric K. Powell, Esq., Powell Law Office, Parkersburg, WV, for P......
  • State v. Jensen, No. 13-1088
    • United States
    • Supreme Court of West Virginia
    • June 13, 2014
    ...set forth an assignment of error that includes this allegation, we find that petitioner has waived this argument. See Holcomb v. Ballard, 232 W.Va. 253, ___ n.8, 752 S.E.2d 284, 286 n.8 (2013). 3. According to the State's Notice of Intent to Introduce Evidence filed on January 30, 2013, M.S......
  • Cross v. Pszczolkowski, No. 16-1093
    • United States
    • Supreme Court of West Virginia
    • March 12, 2018
    ...regarding any failure to duly caution him is improper and warrants reversal.1 Indeed, we held in Syllabus Point 1 of Holcomb v. Ballard, 232 W.Va. 253, 752 S.E.2d 284 (2013) that "[t]he procedural recidivist requirements of W.Va. Code § 61-11-19 (1943) . . . are mandatory, jurisdictional, a......
  • Request a trial to view additional results

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