State ex rel. Young v. Morgan

Decision Date27 June 1984
Docket NumberNo. 16256,16256
Citation173 W.Va. 452,317 S.E.2d 812
PartiesSTATE ex rel. John Lewis YOUNG v. Damon B. MORGAN, Jr., as Prosecuting Attorney of Mason County, et al., etc.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. " 'A person convicted of a felony cannot be sentenced under the habitual criminal statute, Code 61-11-19, 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.' Point 3, syllabus, State ex rel. Housden v. Adams, 143 W.Va. 601 [103 S.E.2d 873 (1958) ]." Syllabus Point 3, State ex rel. Beckett v. Boles, 149 W.Va. 112, 138 S.E.2d 851 (1964).

2. When a defendant who has been convicted of second degree murder and has had a five-year enhancement of his sentence imposed under the recidivist statutes, W.Va.Code, 61-11-18 and 19, and who appeals his conviction, which is subsequently reversed, his recidivist conviction is also vacated. However, this does not foreclose the State from seeking another recidivist enhancement after retrial, even though there has been imposed an erroneous sentence at the retrial. The recidivist proceedings must be initiated prior to the time that the correct sentence is imposed.

Stephen C. Littlepage, Point Pleasant, for appellant.

Damon B. Morgan, Jr., P.A., Point Pleasant, for appellee.

MILLER, Justice:

John Lewis Young instituted this original proceeding seeking a writ of habeas corpus ad subjiciendum and a writ of prohibition to prevent the imposition of an additional five-year penalty under our habitual criminal statutes. W.Va.Code, 61-11-18 & 19. Young's main contention is that the State has not complied with the provisions of W.Va.Code, 61-11-19, because it failed to file a written information of his prior felony conviction during the same term of court as his principal felony conviction. We disagree.

The facts are not in dispute. Young was convicted of second degree murder in the Circuit Court of Wood County in 1977. Upon a jury finding that Young had been previously convicted of a felony in Mason County in 1970, a five-year sentence was added to the maximum term of imprisonment for second degree murder, resulting in a sentence of five to twenty-three years. We denied his petition for appeal and subsequently denied his petition for a writ of habeas corpus.

Young then sought federal habeas corpus relief under 28 U.S.C. § 2254, and in March, 1981, the United States District Court for the Northern District of West Virginia set aside Young's second degree murder conviction. He was then retried in the Circuit Court of Mason County in December, 1981. The jury found Young guilty of first degree murder without a recommendation of mercy, and he was thereafter sentenced on that verdict. In view of the jury's verdict, the prosecuting attorney did not file a new recidivist information.

Thereafter, Young appealed his first degree murder conviction. We accepted the appeal, and in State v. Young, 311 S.E.2d 118 (W.Va.1983), we vacated his first degree murder sentence and remanded the case back to the circuit court for resentencing on second degree murder. Our ruling was based upon well established double jeopardy principles that preclude a higher conviction on retrial where the defendant has been implicitly acquitted of such higher offense by his conviction of a lesser included offense at the original trial.

In January, 1984, Young was returned from the penitentiary to Mason County where he was lodged in the county jail awaiting a resentencing hearing. Prior to the hearing, the prosecuting attorney filed a written information, just as he had done following Young's initial conviction of second degree murder, alleging that Young had previously been convicted of a felony. Young filed a motion to dismiss contending that the recidivist information was not timely filed as required by W.Va.Code, 61-11-19, 1 because no written information was filed during the same term of court in which he was sentenced for first degree murder. He cites Syllabus Point 3 of State ex rel. Beckett v. Boles, 149 W.Va. 112, 138 S.E.2d 851 (1964):

" 'A person convicted of a felony cannot be sentenced under the habitual criminal statute, Code 61-11-19, 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.' Point 3, syllabus, State ex rel. Housden v. Adams, 143 W.Va. 601 [103 S.E.2d 873 (1958) ]."

The circuit court denied Young's motion to dismiss the recidivist proceedings and this action followed.

The respondent prosecutor asserts as an affirmative defense that the federal district court's reversal of Young's initial conviction of second degree murder did not affect the additional five-year sentence imposed under the recidivist statute. The respondent contends that the recidivist penalty that was added to Young's sentence for second degree murder remains valid and enforceable and can be added to the sentence for second degree murder at resentencing. As a second ground, the respondent argues that with the change in sentence on appeal, he is not foreclosed from filing a recidivist petition because this merely conforms to the original sentence. Any delay in bringing the recidivist proceeding is chargeable to the appeals filed by Young which altered his sentence.

We find no merit in the respondent's argument that the recidivist penalty added to Young's sentence on his initial conviction of second degree murder survived the setting aside of that conviction by the federal district court. The recidivist penalty cannot survive the vacating of the principal felony offense. We have consistently held under the habitual criminal statutes that the recidivist penalty authorized for a second felony conviction must be added to and incorporated in the underlying sentence to form a single sentence. Syllabus Point 2, Martin v. Leverette, 244 S.E.2d 39 (W.Va.1978); State ex rel. Holstein v. Boles, 150 W.Va. 83, 143 S.E.2d 821 (1965); State ex rel. Curtis v. Boles, 150...

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7 cases
  • State v. Davis
    • United States
    • West Virginia Supreme Court
    • April 5, 2007
    ...acquitted of such higher offense by his conviction of a lesser included offense at the original trial." State ex rel. Young v. Morgan, 173 W.Va. 452, 454, 317 S.E.2d 812, 813 (1984). 1. Claims of ineffective assistance of counsel are generally not ripe for appellate review on direct appeal.......
  • State v. Cain
    • United States
    • West Virginia Supreme Court
    • July 17, 1987
    ...charged in the information and cautioned as required by statute. See also State v. Deal, supra; syl. pt. 1, State ex rel. Young v. Morgan, --- W.Va. ----, 317 S.E.2d 812 (1984); syl. pt. 3, State ex rel. Beckett v. Boles, 149 W.Va. 112, 138 S.E.2d 851 (1964); syl. pt. 1, State ex rel. Foste......
  • State v. Kendall
    • United States
    • West Virginia Supreme Court
    • November 29, 2006
    ...confined in the county jail not less than ninety days nor more than one year, or both. 12. This Court noted in State ex rel. Young v. Morgan, 173 W.Va. 452, 317 S.E.2d 812 (1984), that "well established double jeopardy principles . . . preclude a higher conviction on retrial where the defen......
  • Holcomb v. Ballard
    • United States
    • West Virginia Supreme Court
    • October 17, 2013
    ...reversed, we have, in fact, previously squarely addressed the issue. This issue was confronted by the Court in State ex rel. Young v. Morgan, 173 W.Va. 452, 317 S.E.2d 812 (1984). The defendant in Young was convicted of second degree murder. He was subsequently properly arraigned on a recid......
  • Request a trial to view additional results

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