State v. Coles

• Decision Date: 18 September 2014
• Docket Number: No. 13–0614.,13–0614.
• Citation: 234 W.Va. 132,763 S.E.2d 843
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Respondent v. Mitchell COLES, Defendant Below, Petitioner.

234 W.Va. 132

763 S.E.2d 843

STATE of West Virginia, Plaintiff Below, Respondent

v.Mitchell COLES, Defendant Below, Petitioner.

No. 13–0614.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 3, 2014.

Decided Sept. 18, 2014.

W. Jesse Forbes, Forbes Law Offices, PLLC, Charleston, WV, for Petitioner.

Patrick Morrisey, Attorney General, Misha Tseytlin, Deputy Attorney General, Charleston, WV, for Respondent.

Opinion

DAVIS, Chief Justice:

This criminal appeal was filed by Mitchell Coles (hereinafter “Mr. Coles”) from an order of the Circuit Court of Monongalia County that denied his Motion for Correction of Sentence. Mr. Coles' motion sought to vacate one of two felony charges he pled guilty to under Case No. 99–F–28. Mr. Coles argued below and now on appeal that the two felony convictions violated double jeopardy principles. After a careful review of the briefs, the record submitted on appeal and listening to the argument of the parties, we affirm.

I.FACTUAL AND PROCEDURAL HISTORY

On January 7, 1999, a grand jury returned a five-count felony indictment against Mr. Coles in Case No. 99–F–28.¹ The indictment charged Mr. Coles with using a check kiting scheme to obtain and attempt to obtain money.² Specifically, Mr. Coles was charged with one count of obtaining $1,500 by false pretenses from One Valley Bank, by tendering a check drawn on an unfunded account at United National Bank.³ The indictment also charged Mr. Coles with three counts of attempting to obtain money by false pretenses from One Valley Bank by tendering checks drawn on an unfunded account at United National Bank. The three attempt counts involved an aggregate sum of $8,175. The fifth count of the indictment charged Mr. Coles with the offense of fraudulent scheme.

While prosecution on the indictment was pending, the State filed a six-count information against Mr. Coles on December 28, 1999, in Case No. 99–F–175.⁴ Specifically, the first count of the information charged Mr. Coles with the felony offense of fraudulent scheme, which involved obtaining airline tickets in the amount of $3,339, through the use of worthless checks. The second count charged the felony offense of fraudulent scheme that involved obtaining items from Sears Department Store in the amount of $2,386.27, through the use of worthless checks and credit cards. The third count charged the felony offense of fraudulent scheme that involved obtaining $5,090 from One Valley Bank by making fraudulent deposits and writing checks on closed accounts. The remaining three counts charged Mr. Coles with misdemeanor false pretense offenses that involved using five worthless checks to purchase items from Wal–Mart; cashing several checks from a closed account at Kroger; and obtaining furniture from Chuck's Furniture Mart.⁵

On the date that the information was filed, December 28, 1999, Mr. Coles entered into a plea agreement with the State.⁶ Under the plea agreement, Mr. Coles pled guilty to two charges under the indictment: obtaining money by false pretenses and fraudulent scheme. The State agreed, among other things, to dismiss the remaining three felony charges under the indictment. Mr. Coles also agreed to plead guilty to all six counts in the information. The circuit court accepted the plea agreement and convicted Mr. Coles on the same day the agreement was obtained. On March 6, 2000, the circuit court sentenced Mr. Coles to a combined sentence of not less than three nor more than thirty years imprisonment.

In September 2000, Mr. Coles filed a motion to reduce his sentence. Mr. Coles contended in his motion that he was remorseful, that he was sufficiently punished and that he had an excellent institutional record. The circuit court denied the motion. In February 2001, Mr. Coles filed a second motion to reduce his sentence. The second motion apparently argued the same reasons for reduction that were contained in the first motion. The circuit court denied the second motion. In December 2006, Mr. Coles filed a third motion for reduction of sentence. The circuit court denied the motion on the grounds that it was filed beyond the 120 day time period allowed by Rule 35(b) of the West Virginia Rules of Criminal Procedure.

Mr. Coles was released on parole in April 2007, and he moved to Pennsylvania. However, as a result of a felony conviction in the State of Virginia, Mr. Coles' parole was revoked and he was returned to prison in West Virginia in December 2010 to serve out the balance of his previous plea conviction and sentence.

In May 2011, Mr. Coles filed his fourth motion to reduce his sentence. The circuit court denied the motion as outside the time period of Rule 35(b). In November 2011, Mr. Coles filed a motion to correct his sentence under Rule 35(a) of the West Virginia Rules of Criminal Procedure.⁷ In that motion, Mr. Coles contended for the first time that his two felony convictions under the indictment violated double jeopardy principles. On May 2, 2013, the circuit court entered an order denying the motion to correct sentence. Mr. Coles subsequently filed a pro se appeal. This Court appointed counsel to represent Mr. Coles. An amended appellate brief was filed by counsel on behalf of Mr. Coles.

II.STANDARD OF REVIEW

This is an appeal from an order by the circuit court denying Mr. Coles' Rule 35(a) motion for correction of his sentence. We apply the following standard of review for such an order:

In reviewing the findings of fact and conclusions of law of a circuit court concerning an order on a motion made under Rule 35 of the West Virginia Rules of Criminal Procedure, we apply a three-pronged standard of review. We review the decision on the Rule 35 motion under an abuse of discretion standard; the underlying facts are reviewed under a clearly erroneous standard; and questions of law and interpretations of statutes and rules are subject to a de novo review.

Syl. pt. 1, State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).

III.DISCUSSION

The principle argument made by Mr. Coles is that, under our decision in State v. Rogers, 209 W.Va. 348, 547 S.E.2d 910 (2001), his conviction and sentence for false pretense and fraudulent scheme under the indictment violate the Double Jeopardy Clause of the state and federal constitutions.⁸ The State argues that, under United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989), and State v. Proctor, 227 W.Va. 352, 709 S.E.2d 549 (2011), Mr. Coles waived his double jeopardy claim. We address the arguments separately.

A. Waiver of Double Jeopardy

The first issue we will address is the State's contention that Mr. Coles waived his double jeopardy claim. The State relies on United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927, and State v. Proctor, 227 W.Va. 352, 709 S.E.2d 549, for the proposition that a double jeopardy claim can be waived. We will examine both cases separately.

To begin, in Broce a federal grand jury in Kansas returned an indictment in 1981 charging two defendants, Ray C. Broce and Broce Construction Co., Inc., with conspiracy to violate the Sherman Act. See 15 U.S.C. § 1.⁹ In 1982, a second indictment was returned charging Mr. Broce and the corporation with conspiracy to violate the Sherman Act. The defendants eventually pled guilty to the two conspiracy charges. The federal district court sentenced Mr. Broce to concurrent two-year terms of imprisonment and fined the corporation. A year after the convictions, the defendants filed a motion in the district court to vacate the convictions under the second indictment on double jeopardy grounds. The district court denied the motion. The defendants appealed. The Tenth Circuit, in a panel opinion and an en banc opinion, reversed and remanded the case for a factual determination of whether there was a single transaction rather than two separate conspiracies. on remand the district court vacated the conspiracy convictions under the second indictment. The government appealed, but the Tenth Circuit affirmed. The United States Supreme Court granted certiorari to consider the circumstances under which a federal defendant may attack a guilty plea conviction and sentence on double jeopardy grounds.

The decision in Broce made clear that, as a general rule, a claim of double jeopardy cannot be used to collaterally attack a guilty plea. Broce set out the governing principles for this issue as follows:

A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence. Accordingly, when the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary. If the answer is in the affirmative then the conviction and the plea, as a general rule, foreclose the collateral attack. There are exceptions where on the face of the record the court had no power to enter the conviction or impose the sentence.

Broce, 488 U.S. at 569, 109 S.Ct. at 762, 102 L.Ed.2d 927. The opinion in Broce explained the “lack of power in a court” by citing to the decisions in Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975). See also State v. McGilton, 229 W.Va. 554, 559, 729 S.E.2d 876, 881 (2012) (providing an interpretation of Blackledge and Menna ). The opinion explained that under Blackledge and Menna a defendant may attack a plea conviction on double jeopardy grounds where, “judged on its face—the charge is one which the State may not constitutionally prosecute.” Broce, 488 U.S. at 575, 109 S.Ct. at 765, 102 L.Ed.2d 927 (internal quotations and citation omitted).

The opinion in Broce concluded that the guilty pleas by the defendants were counseled and voluntary. Therefore, the convictions could not be collaterally attacked on double jeopardy grounds. It was further determined that the...