State ex rel. Daye v. McBride

• Decision Date: 27 June 2007
• Docket Number: No. 33101.,No. 33100.,33100.,33101.
• Citation: 222 W.Va. 17,658 S.E.2d 547
• Parties: STATE of West Virginia ex rel. Cornell F. DAYE, Petitioner Below, Appellant v. Thomas McBRIDE, Warden, Mount Olive Correctional Center, Respondent Below, Appellee (Two Cases).
• Court: West Virginia Supreme Court

658 S.E.2d 547

222 W.Va. 17

STATE of West Virginia ex rel. Cornell F. DAYE, Petitioner Below, Appellant v. Thomas McBRIDE, Warden, Mount Olive Correctional Center, Respondent Below, Appellee (Two Cases).

No. 33100.

No. 33101.

Supreme Court of Appeals of West Virginia.

Submitted May 9, 2007.

Decided June 27, 2007.

Syllabus by the Court

1. "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." Syllabus Point 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

2. "Where the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation." Syllabus Point 2, Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384, (1970).

3. "Where an accused is convicted of an offense punishable by confinement in the penitentiary and, after conviction but before sentencing, an information is filed against him setting forth one or more previous felony convictions, if the jury find or, after being duly cautioned, the accused acknowledges in open court that he is the same person named in the conviction or convictions set forth in the information, the court is without authority to impose any sentence other than as prescribed in Code, 61-11-18, as amended." Syllabus Point 3, State ex rel. Cobb v. Boles, 149 W.Va. 365, 141 S.E.2d 59 (1965).

4. "The general rule of statutory construction requires that a specific statute be given precedence over a general statute relating to the same subject matter where the two cannot be reconciled." Syllabus Point 1, UMWA by Trumka v. Kingdon, 174 W.Va. 330, 325 S.E.2d 120 (1984).

5. When any person is convicted of an offense under the Uniform Controlled Substances Act (W.Va. Code, Chapter 60A) and is subject to confinement in the state correctional facility therefor and it is further determined, as provided in W.Va.Code, 61-11-19 (1943), that such person has been before convicted in the United States of a crime or crimes, including crimes under the Uniform Controlled Substances Act (W.Va. Code, Chapter 60A), punishable by confinement in a penitentiary, the court shall sentence the person to confinement in the state correctional facility pursuant to the provisions of W.Va. Code, 61-11-18 (2000), notwithstanding the second or subsequent offense provisions of W.Va.Code, 60A-4-408 (1971).

Lonnie C. Simmons, Esq., Heather M. Langeland, Esq., DiTrapano, Barrett & DiPiero Charleston, WV, for Appellant.

Darrell V. McGraw, Jr., Attorney General, Barbara Allen, Managing Deputy Attorney General, Charleston, WV, for Appellee.

STARCHER, J.:

The appellant, in this habeas corpus action, seeks relief from his sentence as enhanced under the W.Va.Code, 61-11-18 (2000). The trial court initially sentenced the appellant under W.Va.Code, 60A-4-408 (1971), which provides that the sentencing judge may sentence a convicted defendant up to twice the term for the offense as otherwise authorized. The State subsequently filed a motion pursuant to W.Va. Rules of Criminal Procedure, Rule 35a, to correct the initial sentence to conform with the requirements of W.Va. Code, 61-11-18 (2000). The trial court granted the State's motion and sentenced the appellant to confinement in the penitentiary for life. The appellant claims that his original sentence under W.Va.Code, 60A-4-408 (1971) was valid and should be reinstated.

For the reasons discussed in this opinion, we affirm the decision of the trial court and remand this case for further proceedings.

I. Facts & Background

On August 25, 1999, the appellant, Cornell F. Daye, aka "Jumpshot," while on probation on a prior felony drug charge, was arrested in Raleigh County, West Virginia, for possession of crack cocaine. A few months after the August 1999 arrest in Raleigh County, but before his indictment, the appellant was arrested in Orange County, Florida, where he pled nolo contendere to possession of a controlled substance, and was sentenced to six months in jail. On January 10, 2000, while the appellant was serving his sentence in Florida, the appellant was indicted by a Raleigh County grand jury for the West Virginia incident leading to his August 1999 arrest for possession of crack cocaine with intent to deliver, second offense.¹

The appellant waived extradition while serving his sentence in Florida, and upon completion of his sentence, on May 19, 2000, the appellant was transported back to West Virginia. The appellant was held in a regional jail until his trial. On November 6, 2000, the appellant was arraigned on the indictment. On January 2, 2001, a hearing was held to revoke the appellant's probation from his March 22, 1999 Raleigh County felony drug charge conviction.²

The appellant's trial began on August 20, 2001, and concluded on August 21, 2001, with a conviction for possession of crack cocaine with intent to deliver, second or subsequent offense.³

On August 22, 2001. the State filed an information pursuant to W.Va.Code, 61-11-19 (1943), stating the appellant had been convicted on: (1) August 23, 2001, of possession of crack cocaine with intent to deliver, (2) March 22, 1999, of possession of a controlled substance with intent to deliver, and (3) April 28, 1998, of possession of crack cocaine with intent to deliver.⁴ All convictions were for felony offenses.

On September 6, 2001, a hearing was held to consider the State's August 22, 2001 information. This hearing was presided over by a different judge than the judge who had presided over all of the prior proceedings. The judge explained to the appellant that if he admitted he was the person convicted of the crimes identified in the State's information, you could be sentenced to a period of life in the penitentiary, with possibility of parole." (Emphasis added). The appellant admitted that he was the person convicted in the previous cases. The judge accepted the appellant's admission and entered a finding that the appellant "knowingly, voluntarily and understandingly appreciates the ramifications of an admission."

On September 26, 2001, the original judge in the case reviewed the pre-sentence report and the record relating to the appellant's admission to the prior convictions. On September 26, 2001, the judge ordered the appellant sentenced to not less than two nor more than thirty years in a state correctional facility pursuant to the enhancement provisions of W.Va.Code, 60A-4-408 (1971).⁵ The judge specifically declined to sentence the appellant under the provisions of W.Va.Code, 61-11-18 (2000).

On October 2, 2001, the State filed a motion, pursuant to Rule 35(a) of the West Virginia Rules of Criminal Procedure,⁶ to correct the sentencing order, contending that a life sentence was mandatory under W.Va. Code, 61-11-18 (2000). On October 11, 2001, the judge entered an order which "corrected" the initial sentence and ordered that the appellant be confined in a correctional facility for life pursuant to W.Va.Code, 61-11-18 (2000).⁷

The appellant filed a direct appeal to this Court challenging the life sentence. On March 11, 2003, the West Virginia Supreme Court denied the appellant's appeal.

On May 25, 2004, the appellant filed a pro se habeas corpus petition. On June 9, 2005, the trial judge summarily denied all habeas corpus relief pursuant to W.Va.Code, 53-4A-3 (1971).⁸ Following the denial of his pro se habeas corpus petition, the appellant requested that the court appoint him counsel to appeal his case. The judge denied the appellant's request for appointment of counsel on June 28, 2005.

It is from the circuit court's denial of appellant's pro se petition for habeas corpus that the appellant appeals. On May 26, 2006, this Court accepted appellant's petition and appointed counsel to assist him with his appeal.

II. Standard of Review

In Syllabus Point 1 of Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771(2006) this Court held:

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 these standards in mind, we will now consider the appellant's arguments.

III. Discussion

W.Va.Code, 61-11-18(c) (2000) provides that:

(c) When it is determined, as provided in section nineteen [§ 61-11-19] of this article, that such person shall have been twice before convicted in the United States of a crime punishable by confinement in a penitentiary, the person shall be sentenced to be confined in the state correction facility for life.

(Emphasis added.)

W.Va.Code, 61-11-19(1943) provides that:

61-11-19. Procedure in trial of persons for second or third offense.

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. If he says he is not, or remains silent, his plea, or the fact of his silence, shall be entered of record, and a jury shall be impaneled to...