State v. Cain, No. 17024

CourtSupreme Court of West Virginia
Writing for the CourtMcHUGH
Citation178 W.Va. 353,359 S.E.2d 581
Docket NumberNo. 17024
Decision Date17 July 1987
PartiesSTATE of West Virginia v. Thomas Ronald CAIN.

Page 581

359 S.E.2d 581
178 W.Va. 353
STATE of West Virginia
v.
Thomas Ronald CAIN.
No. 17024.
Supreme Court of Appeals of
West Virginia.
July 17, 1987.

Page 582

[178 W.Va. 354] Syllabus by the Court

1. 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].

2. "An interval of one day or less between the appointment of counsel and trial or the entry of a guilty plea raises a rebuttable presumption that the defendant was denied effective assistance of counsel and shifts the burden of persuasion to the state." Syl. pt. 1, Housden v. Leverette, 161 W.Va. 324, 241 S.E.2d 810 (1978).

Charles G. Brown, Atty. Gen., Bethany Boyd, and Mary Rich Maloy, Asst. Attys. Gen., for appellant.

Harry A. Smith, III, Elkins, for appellee.

McHUGH, Justice:

This case is before this Court upon the appeal of Thomas Cain. It arises from an order of the Circuit Court of Randolph County in which the appellant was sentenced to life imprisonment pursuant to the West Virginia habitual criminal statute, W.Va.Code, 61-11-18, -19 [1943].

I

During the January, 1984 term of the Circuit Court of Randolph County, the appellant was convicted by a jury of breaking and entering a drug store. Before expiration of the term of court at which the appellant had been convicted, the prosecuting attorney filed a recidivist information with the court, pursuant to W.Va.Code, 61-11-19 [1943], charging that the appellant had two prior felony convictions. The information charged that the appellant had been convicted of breaking and entering in 1961, when he was 16 years old and sentenced to confinement in the West Virginia Penitentiary for a term of not less than one nor more than ten years. It further charged that the appellant had been convicted of another breaking and entering offense in 1979 and sentenced to confinement at the West Virginia State Penitentiary for a term of not less than one nor more than fifteen years. Subsequently, on September 4, 1984, during the following term of court, 1 the prosecuting attorney filed an "amended information" charging that the appellant had been convicted of a fourth breaking and entering offense in 1971 and had been sentenced to confinement in the West Virginia State Penitentiary for that conviction for a term of not less than one nor more than ten years.

At a hearing held pursuant to his request, the appellant challenged the untimely filing of the amended information as well as the State's use of a prior conviction

Page 583

that had occurred when the appellant was [178 W.Va. 355] 16 years old. 2

A few days later, the appellant's recidivist trial began. On motion for directed verdict, the appellant contended that his 1961 breaking and entering conviction was invalid because it is ineffective assistance of counsel to have a case disposition, whether it be by plea or trial, within twenty-four hours of appointment. The evidence adduced at the recidivist trial concerning the 1961 conviction revealed that within one day the appellant had counsel appointed to represent him, entered a plea of guilty to the felony indictment, and was sentenced to a State forestry camp for a period of not less than one nor more than two years. 3 The motion for directed verdict was overruled by the trial court. The jury found that the appellant was the same person convicted of the prior felonies charged in the information.

Subsequently, the appellant moved for a judgment of acquittal and for a new trial, challenging the validity of the 1961 conviction as well as the untimely filing of the amended information. The trial court ruled that the validity of an underlying conviction should be attacked by a petition of habeas corpus and could not be raised in the recidivist proceeding and concluded that the filing of the amended information in the term of court subsequent to the term in which the appellant was convicted was not prohibited by law. 4 The trial court, therefore, denied both of the appellant's motions.

II

The text of W.Va.Code, 61-11-19 [1943], provides in pertinent part:

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.

(emphasis added).

The first issue before us is whether a defendant convicted of a felony may be sentenced under the habitual criminal statute, W.Va.Code, 61-11-18, -19 [1943], when the prosecuting attorney files an amended recidivist information, subsequent to the term of court at which the defendant was convicted and that amendment adds an additional conviction to those which had been previously set forth by the State in the original information. 5

The appellant contends that W.Va.Code, 61-11-19 [1943], clearly mandates that in order to effect an enhancement of a

Page 584

[178 W.Va. 356] convicted defendant's sentence, a prosecuting attorney must give to the court "immediately upon conviction," information as to the defendant's former penitentiary offenses. The appellant asserts that the statute requires that the convicted person shall be brought before the court before the expiration of the term at which the person was convicted in order to answer to the charges contained in the recidivist information.

The State maintains that although W.Va.Code, 61-11-19 [1943], does not specifically address the issue of amending an information, the statute does not prohibit the amendment of the information nor does it bar holding the recidivist trial in the next term of court.

The jurisdiction of a trial court to sentence to further confinement in the penitentiary a person who is convicted of an offense which is punishable by confinement in the penitentiary is derived from W.Va.Code, 61-11-18 [1943] 6 and W.Va.Code, 61-11-19 [1943].

It is well established in this State that the provisions of W.Va.Code, 61-11-19 [1943], including the requirement that the defendant, before he acknowledges his identity as the person who has been previously convicted, must be duly cautioned, are mandatory and must be complied with fully for the imposition of a valid sentence of further confinement under the statute. State ex rel. Beckett v. Boles, 149 W.Va. 112, 118, 138 S.E.2d 851, 855 (1964), and cases cited therein; see also State v. Deal, --- W.Va. ----, 358 S.E.2d 226, 229 (W.Va.1987).

In State ex rel. Housden v. Adams, 143 W.Va. 601, 103 S.E.2d 873 (1958), this Court had occasion to interpret the statute now before us: W.Va.Code, 61-11-19. In Housden, the petitioner had been convicted of a criminal offense punishable by confinement in the penitentiary in one term of court and in a subsequent term of court, he was charged and sentenced pursuant to the habitual criminal statute. This Court concluded that the prosecuting attorney did not comply with the plain and unambiguous provisions of W.Va.Code, 61-11-19 [1943], when he failed to file the petitioner's recidivist information during the same term of court at which the petitioner was convicted. 143 W.Va. at 606, 103 S.E.2d at 876.

In syllabus point 3 of Housden, this Court established the following rule of law with regard to the filing of a recidivist information pursuant to W.Va.Code, 61-11-19 [1943]:

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 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. Foster v. Boles, 147 W.Va. 655, 130 S.E.2d 111 (1963).

Although the facts in the case before us are distinguishable from the cases above...

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13 practice notes
  • State ex rel. Appleby v. Recht, No. 30737.
    • United States
    • Supreme Court of West Virginia
    • December 4, 2002
    ...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 A person convicted of a felony may not be sentenced pursuant to W. Va.Code, 61-11-18, -19 [1943], unless a re......
  • Daye v. Plumley, No. 13-0913
    • United States
    • Supreme Court of West Virginia
    • April 4, 2014
    ...the facts charged in the entire information, including any or all material amendments thereto. W.Va. Code, 61-11-19 [1943].State v. Cain, 178 W.Va. 353, 357, 359 S.E.2d 581, 585 (1987). As recognized by our Court in State v. Deal 178 W.Va. 142, 358 S.E.2d 226 (1987), "the provisions of this......
  • State v. Choat, No. 17539
    • United States
    • Supreme Court of West Virginia
    • November 18, 1987
    ...and in favor of the defendant." Syl. pt. 3, State ex rel. Carson v. Wood, 154 W.Va. 397, 175 S.E.2d 482 (1970); see also State v. Cain, 178 W.Va. 353, 357, 359 S.E.2d 581, 585 (1987); syl. pt. 3, State v. Nichols, 177 W.Va. 483, 354 S.E.2d 415 (1987); syl. pt. 1, State v. Turley, 177 W.Va. ......
  • State v. Crabtree, No. 23408
    • United States
    • Supreme Court of West Virginia
    • October 11, 1996
    ...including any or all material amendments thereto. W. Va.Code, 61-11-19 [1943]." Syl. Pt. 1, State Page 609 [198 W.Va. 624] v. Cain, 178 W.Va. 353, 359 S.E.2d 581 Philip W. Morrison II, Special Prosecuting Attorney, Winfield, for Appellee. Jerry Blair and Richard Vital, Huntington, for Appel......
  • Request a trial to view additional results
13 cases
  • State ex rel. Appleby v. Recht, No. 30737.
    • United States
    • Supreme Court of West Virginia
    • December 4, 2002
    ...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 A person convicted of a felony may not be sentenced pursuant to W. Va.Code, 61-11-18, -19 [1943], unless a re......
  • Daye v. Plumley, No. 13-0913
    • United States
    • Supreme Court of West Virginia
    • April 4, 2014
    ...the facts charged in the entire information, including any or all material amendments thereto. W.Va. Code, 61-11-19 [1943].State v. Cain, 178 W.Va. 353, 357, 359 S.E.2d 581, 585 (1987). As recognized by our Court in State v. Deal 178 W.Va. 142, 358 S.E.2d 226 (1987), "the provisions of this......
  • State v. Choat, No. 17539
    • United States
    • Supreme Court of West Virginia
    • November 18, 1987
    ...and in favor of the defendant." Syl. pt. 3, State ex rel. Carson v. Wood, 154 W.Va. 397, 175 S.E.2d 482 (1970); see also State v. Cain, 178 W.Va. 353, 357, 359 S.E.2d 581, 585 (1987); syl. pt. 3, State v. Nichols, 177 W.Va. 483, 354 S.E.2d 415 (1987); syl. pt. 1, State v. Turley, 177 W.Va. ......
  • State v. Crabtree, No. 23408
    • United States
    • Supreme Court of West Virginia
    • October 11, 1996
    ...including any or all material amendments thereto. W. Va.Code, 61-11-19 [1943]." Syl. Pt. 1, State Page 609 [198 W.Va. 624] v. Cain, 178 W.Va. 353, 359 S.E.2d 581 Philip W. Morrison II, Special Prosecuting Attorney, Winfield, for Appellee. Jerry Blair and Richard Vital, Huntington, for Appel......
  • Request a trial to view additional results

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