State ex rel. Appleby v. Recht

Citation583 S.E.2d 800,213 W.Va. 503
Decision Date04 December 2002
Docket NumberNo. 30737.,30737.
CourtSupreme Court of West Virginia
PartiesSTATE of West Virginia ex rel. David APPLEBY Petitioner, v. Honorable Arthur M. RECHT, Judge of the Circuit Court of Ohio County, Respondent.

Martin P. Sheehan, Laura Spadaro, Sheehan & Nugent, P.L.L.C., Wheeling, for the Petitioner.

William J. Ihlenfeld, Assistant Prosecuting Attorney, Wheeling, for the Respondent.


David Appleby, (hereinafter "Mr. Appleby"), petitioner and defendant below, invokes this Court's original jurisdiction in prohibition and seeks a writ prohibiting the State from proceeding to try him as a recidivist upon his conviction for driving under the influence (hereinafter "DUI"), third offense, based upon one predicate felony of unlawful assault and two prior felony convictions of DUI, third offense. After having reviewed Mr. Appleby's petition and memorandum of law, the State's memorandum in opposition, reviewing the pertinent authorities and hearing the arguments of counsel, we deny the writ.


On September 10, 2001, an Ohio County Grand Jury returned a two-count indictment against Mr. Appleby charging him with DUI, third offense, in violation of West Virginia Code §§ 17C-5-2(d) and (k) (Repl.Vol.2000), and driving while on a revoked license, third offense, for DUI in violation of West Virginia Code § 17B-4-3(b) (Repl.Vol.2000). The DUI, third offense, count included a list of seven prior convictions,1 while the charge of third offense driving on a revoked license for DUI included a list of three such prior convictions.

On October 31, 2001, Mr. Appleby admitted that he had prior DUI convictions, one on June 14, 1988, and one on September 8, 1998, such that any conviction under the DUI, third offense count, would be felonious. Mr. Appleby asserts that he made this admission for the purpose of excluding from jury consideration evidence of his prior convictions, pursuant to State v. Nichols, 208 W.Va. 432, 541 S.E.2d 310 (1999). Trial of the driving while revoked, third offense count was severed.

On November 21, 2001, the day scheduled for trial on the DUI, third offense count, Mr. Appleby pled guilty to both counts of the indictment. He was represented by counsel at this time—as he had been since at least October 31, 2001. The Prosecuting Attorney stated to the trial court that the State and Mr. Appleby had no plea agreement and that Mr. Appleby's plea was "just a straight plea to the indictment."2 At the plea hearing, the trial court advised Mr. Appleby that the maximum term of imprisonment for each of the offenses to which he pled guilty was one to three years, and that since the sentences could be imposed consecutively, the maximum sentence he could receive was incarceration for a term of two to six years. The trial court did not indicate that the State could initiate a recidivist proceeding. The trial court accepted the plea but, notwithstanding Mr. Appleby's waiver of the report, deferred sentencing until a presentence report could be completed.

Thereafter, the State filed information alleging that Mr. Appleby was a recidivist in that he had three prior convictions for DUI, third offense, one unlawful assault conviction and one felony conviction for driving on a revoked license for DUI, third offense. If sentenced as a recidivist, Mr. Appleby was subject to a life sentence with the opportunity for parole.

Mr. Appleby apparently filed a motion to dismiss the recidivist information in the circuit court. After securing new counsel, (different from the one who represented him at the November 21, 2001, plea), Mr. Appleby alleged additional grounds to dismiss the recidivist information. The trial court denied all relief. Mr. Appleby then sought an original jurisdiction prohibition from this Court.


A writ of prohibition lies "as a matter of right in all cases of usurpation and abuse of power, when the inferior court has no jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers." W. Va.Code § 53-1-1 (2000 Repl.Vol.). Mr. Appleby does not dispute that the circuit court enjoyed jurisdiction over his case. He contends that the circuit court committed a flagrant error by not prohibiting the State from proceeding on a recidivist trial. Both he and the State agree that the law governing prohibition in this instance is set forth in syllabus point 4 of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996):

In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an often repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.

We conclude that the trial court did not commit clear legal error in this case. Consequently, we deny the writ.


Mr. Appleby sets forth a number of assignments of error. Mr. Appleby argues that the circuit court erred in not dismissing the recidivist proceeding because when he plead guilty, the circuit court informed him he would only be facing a possible maximum sentence of two to six years—not the possibility of a life sentence as a recidivist; that the prosecuting attorney's failure to advise Mr. Appleby at the point he plead guilty that the State would seek a recidivist enhancement violated West Virginia Code § 61-11-19 (Repl.Vol.2000); that the United States' Supreme Court opinion in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), renders West Virginia's recidivist sentencing procedure invalid; that West Virginia's recidivist Act is void for vagueness; that sentencing him to a life term of imprisonment as a recidivist for third-offense DUI would constitute disproportionate sentencing; and that we should overrule a number of this Court's opinions to provide to him the relief he seeks. We reject Mr. Appleby's contentions.

A. The Trial Court and State Complied with West Virginia Code § 61-11-18 and West Virginia Rule of Criminal Procedure 11. Additionally, none of Mr. Appleby's Constitutional Rights Were Violated by the Trial Court's Actions.

On the morning trial was to commence, November 21, 2001, Mr. Appleby informed the trial court that he wished to plead guilty to both counts of the indictment. As the trial court noted, there was no written plea "because there's simply no time for that, which is all right." The trial court accepted the guilty pleas. Mr. Appleby's trial counsel advised the court that Mr. Appleby waived a presentence report and that "actually, it's been his intention for sometime just to move on and get his sentence." The Prosecuting Attorney opposed sentencing. The trial court indicated his appreciation for Mr. Appleby's position, but the trial court delayed sentencing to await a presentence report because there were issues of consecutive or concurrent sentencing. Thereafter, on November 24, the State filed the recidivist information.3

Mr. Appleby argues that the State's delay of three days in filing the information violated the requirements of W. Va Code § 61-11-19. He also complains that the trial court misinformed him that the maximum sentence that could be imposed was a total of two to six years, while it was actually a life sentence as a recidivist.

Mr. Appleby specifically contends that the State's delay in filing the recidivist information from November 21 to November 24 was impermissible because it was not immediate notice in open court as required by W. Va. Code § 61-11-19.

We said in syllabus point 1 of State v. Cain, 178 W.Va. 353, 359 S.E.2d 581 (1987) (emphasis added):

A person convicted of a felony may not be sentenced pursuant to W. Va.Code, 61-11-18, -19 [1943], unless a recidivist information and any or all material amendments thereto as to the person's prior conviction or convictions are filed by the prosecuting attorney with the court before expiration of the term at which such person was convicted, so that such person is confronted with the facts charged in the entire information, including any or all material amendments thereto. W. Va. Code, 61-11-19 [1943].

More recently, we said in Syllabus point 2 of State v. Cavallaro, 210 W.Va. 237, 557 S.E.2d 291 (2001) (per curiam) (emphasis added):

"A person convicted of a felony cannot be sentenced under the habitual criminal statute, [W. Va.] Code § 61-11-19 [(2000)], unless there is filed by the prosecuting attorney with the court at the same term, and before sentencing, an information as to the prior conviction or convictions and for the purpose of identification the defendant is confronted with the facts charged in the information and cautioned as required by the statute." Syllabus point 3, State ex rel. Housden v. Adams, 143 W.Va. 601, 103 S.E.2d 873 (1958).

Thus, we believe the immediacy requirement is satisfied if the State files the information before sentencing and prior to the end of the term...

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