State ex rel. Lorenzetti v. Sanders, 14–0904.
| Decision Date | 20 May 2015 |
| Docket Number | No. 14–0904.,14–0904. |
| Citation | 235 W.Va. 353,774 S.E.2d 19 |
| Parties | STATE of West Virginia EX REL. Ralph A. LORENZETTI, Jr., Prosecuting Attorney of Jefferson County, Petitioner v. The Honorable David H. SANDERS, Judge of the Circuit Court of Jefferson County, and Elizabeth A. Shanton, Respondents. |
| Court | West Virginia Supreme Court |
Brandon C.H. Sims, Esq., Assistant Prosecuting Attorney of Jefferson County, Charles Town, WV, for Petitioner.
Shawn R. McDermott, Esq., Mills McDermott, PLLC, Martinsburg, WV, for Respondent.
Lisa A. Hopkins, Esq., General Counsel, Dawn E. Warfield, Esq., Associate General Counsel, Vincent J. Smith, Esq., Associate General Counsel, Amicus Curiae–Glen B. Gainer III, West Virginia State Auditor.
The petitioner, Ralph A. Lorenzetti, Prosecuting Attorney of Jefferson County (“the State”), seeks a writ of prohibition pursuant to the original jurisdiction of this Court to prohibit enforcement of the September 5, 2014, order of the Circuit Court of Jefferson County, dismissing fifty-three counts of a fifty-four count indictment against respondent Elizabeth A. “Libby” Shanton. Each of the fifty-three dismissed counts alleged that Ms. Shanton used a state-issued purchasing card in violation of W. Va.Code § 12–3–10b (1996). The circuit court reasoned that the inclusion of these counts in the indictment offended double jeopardy principles. For the reasons set forth herein, we conclude that the circuit court erred by dismissing these fifty-three counts, abused its legitimate powers and deprived the State of its right to prosecute the case. Therefore, we grant the writ.
The controversy in this case surrounds the use of a purchasing card (“P–Card”) issued pursuant to West Virginia's Purchasing Card Program. The Purchasing Card Program was implemented in 1996 by the Legislature and is administered by the West Virginia State Auditor. W. Va.Code § 12–3–10a (2007). P–Cards provide “an alternative payment method” that make “the procurement and payment of goods and services ... more efficient.” Id. According to the Auditor,1 the Purchasing Card Program “obtain[s] greater accountability for purchases, improve[s] vendor payment cycles and save[s] the State money through a streamlined payment process and cost avoidance.” The Auditor asserts that P–Cards are “the payment method utilized for millions of dollars in transactions involving essential state purchases.”
Ms. Shanton was issued a P–Card while she was employed as Dean of Student Affairs at Shepherd University in Shepherdstown, West Virginia. Her responsibilities as Dean of Student Affairs involved organizing student programming, including meals, special events, and giveaways. Following an investigation by the Commission on Special Investigations, see W. Va.Code §§ 4–5–1 to –6, and the Purchase Card Program Oversight Division, Ms. Shanton was indicted in a fifty-four count indictment connected to her use of her P–Card. Count 1 of the indictment alleges that Ms. Shanton engaged in a fraudulent scheme in violation of W. Va.Code § 61–3–24d (1995)2 by using her P–Card from July 1, 2011, to August 3, 2011, to make purchases of goods and services, totaling $85,932.67, that were not for an official state purpose but which Ms. Shanton claimed were for an official state purpose in a monthly P–Card transaction log. The remaining counts, counts 2 through 54, allege that Ms. Shanton engaged in fraudulent or unauthorized use of her P–Card in violation of W. Va.Code § 12–3–10b (1996)3 by using the P–Card fifty-three times on specific dates between October 9, 2010, and August 2, 2012, to purchase goods and services that were not for official state purposes.4
Ms. Shanton filed three separate motions to dismiss the indictment. These motions attacked each of the fifty-four counts in the indictment on one or more of the following grounds: insufficiency, lack of jurisdiction, and unconstitutionality. On August 27, 2014, the circuit court held a conference call with the parties' counsel and requested that they submit additional factual information regarding the charges against Ms. Shanton. The State filed a “Response to Factual Inquiries of the Court” on September 4, 2014.5
The circuit court entered an order on September 5, 2014, granting Ms. Shanton's motion to dismiss with regard to the counts alleging that Ms. Shanton engaged in fraudulent or unauthorized use of her P–Card in violation of W. Va.Code § 12–3–10b. The circuit court determined that counts 2 through 54 of the indictment violated principles of double jeopardy in two ways.
First, the circuit court determined that each swipe of the P–Card was part of a continuing offense; therefore, because each swipe of the P–Card did not give rise to a distinct offense, Ms. Shanton could only be charged with one violation of W. Va.Code § 12–3–10b. Accordingly, to avoid running afoul of double jeopardy principles, the circuit court collapsed counts 2 through 54 of the indictment into one single count.
Second, the circuit court determined that the elements of the crime described in counts 2 through 54 overlapped completely with the elements of count 1. The court concluded that double jeopardy prevented charging Ms. Shanton with violating both statutes, and the court dismissed all counts in the indictment but count 1.
Determining that counts 2 through 54 must be dismissed for violating principles of double jeopardy, the circuit court declined to address Ms. Shanton's remaining questions of constitutionality regarding these counts. The court also declined to consider the issues raised by Ms. Shanton regarding the sufficiency of the indictment and the circuit court's jurisdiction.
The State now seeks a writ of prohibition to prohibit the circuit court from enforcing its September 5, 2014, order dismissing counts 2 through 54 of the indictment.
Syl. pt. 2, State ex rel. Sims v. Perry, 204 W.Va. 625, 515 S.E.2d 582 (1999).
The State contends that the circuit court abused its legitimate powers and deprived the State of its right to prosecute its case against Ms. Shanton. We have held that when a petitioner contends that a circuit court has abused its legitimate powers, the Court will consider five factors in determining whether it will issue a writ of prohibition:
(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 oft 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.
Syl. pt. 4, in part, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).
Pursuant to these standards, our review will proceed by examining the error alleged by the State and whether that error constitutes an abuse of the circuit court's legitimate powers such that it deprived the State of its right to prosecute the case. Then, we will evaluate whether the Hoover factors weigh in favor of granting the requested writ of prohibition.
The State contends that the question now before the Court is this: “Did the Circuit Court exceed its legitimate power in dismissing Counts 2 through 54 of the Indictment each of which charged the defendant with separate violations of West Virginia Code § 12–3–10b which statute criminalizes the Fraudulent or Unauthorized Use of a State Purchasing Card?” This question encapsulates two issues: (1) whether the circuit court erred by collapsing counts 2 through 54 into a single count, thereby effectively dismissing all but one of those counts, and (2) whether the circuit court erred by dismissing the condensed count, thereby dismissing all counts in the indictment alleging violations of W. Va.Code § 12–3–10b.
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