State v. Cunningham, 13716

• Decision Date: 12 July 1977
• Docket Number: No. 13716,13716
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. William John CUNNINGHAM.

Page 459

236 S.E.2d 459

160 W.Va. 582

STATE of West Virginia v. William John CUNNINGHAM.

No. 13716.

Supreme Court of Appeals of West Virginia.

July 12, 1977.

Dissenting Opinion July 20, 1977.

William C. Garrett, Webster Springs, for plaintiff-in-error.

Chauncey H. Browning, Jr., Atty. Gen., William D. Highland, Asst. Atty. Gen., Charleston, for defendant-in-error.

1. When a defendant has been convicted and a new trial has been granted him, the prosecution may, with the consent of the trial court, enter a nolle prosequi without prejudice to a new indictment or information. State v. Burke, 130 W.Va. 64, 72, 42 S.E.2d 544 (1947).

2. "Where a conviction and sentence are set aside and held to be void by motion of the defendant in the trial court, by an appeal, or by habeas corpus proceedings, double jeopardy is not applicable because in each instance it is waived and there is no inhibition to another trial for the same offense." Syllabus, point two, State v. Holland, 149 W.Va. 731, 143 S.E.2d 148 (1965).

3. An indictment which charges that the accused, in and upon a named person,

(a) "an assault did feloniously make,"

(b) and the named person "did then and there feloniously put in bodily fear," and

(c) a sum of United States currency, property of the named person "and lawfully in his control and custody, from the person . . . and against his will, then and there feloniously and violently did steal, take and carry away against the peace and dignity of the State,"

is an indictment adequately following the form of the robbery indictment in W.Va. Code, 62-9-6, is based on the provisions of the first sentence in W.Va. Code, 61-2-12, and effectively charges the accused with the offense of robbery, the penalty for which is confinement in the state penitentiary for not less than ten years. State ex rel. Vascovich v. Skeen, 138 W.Va. 417, 76 S.E.2d 283 (1953).

4. When, as made manifest by the trial court record, a defendant, on entering a plea of guilty to a criminal charge, has knowingly, voluntarily and intelligently waived his constitutional rights, he may not thereafter be heard to complain thereon.

McGRAW, Justice.

In plea bargaining arrangements in the Circuit Court of Nicholas County, William John Cunningham, on June 30, 1975, entered a guilty plea to a charge of unarmed robbery, a lesser offense embraced in an indictment for the armed robbery of Orval Hoover on the day of September, 1974. On the guilty plea, the trial court denied probation and sentenced the defendant to serve an indeterminate sentence of from five to eighteen years in the state penitentiary. W.Va.Code, 61-2-12. The trial court's two judgment orders of August 20, 1975, are before the Court for review on a writ of error and supersedeas granted May 17, 1976. By order of June 16, 1976, the trial court denied bail pending appeal.

Earlier, on November 12, 1974, two felony indictments were returned against defendant Cunningham, one charging the robbery of Orval Hoover and the other charging felonious assault on Orval Hoover, both involving the same episode occurring on the day of September, 1974, covered in the armed robbery indictment to which the defendant entered a guilty plea on June 30, 1975. On the robbery indictment of November 12, 1974, defendant was tried to a jury on February 24 and 25, 1975, and found "guilty of armed robbery as charged in the within indictment." By order entered April 17, 1975, the trial court denied defendant's motion to set the jury verdict aside and to award him a new trial. In that order the court sentenced defendant to life imprisonment in the state penitentiary. Later, by order of May 8, 1975, the trial court reconsidered defendant's motion and granted him a new trial. On May 12, 1975, the State moved that a nolle prosequi be entered on the November 12, 1974, robbery indictment. By order of May 16, 1975, the State's motion was granted and the cause was "ordered stricken from the docket."

On May 22, 1975, the grand jury for Nicholas County returned a new robbery indictment against defendant the indictment on which he is now serving a sentence of from five to eighteen years on his guilty plea to a charge of unarmed robbery as a lesser offense embraced in the new robbery indictment.

While "armed robbery" and "unarmed robbery" are not appropriately descriptive of the two degrees of robbery embraced in the statute, W.Va.Code, 61-2-12, it will be helpful and permissible in this opinion to employ the terms from time to time in harmony with the record as presented for review. State ex rel. Vandal v. Adams, 145 W.Va. 566, 569, 115 S.E.2d 489 (1960).

In his brief, the defendant cites three errors of the trial court as bases for reversal of his conviction. He states:

"1. The trial court erred in dismissing the indictment for unarmed robbery against the defendant where the motion to dismiss was made by the State without first giving defendant notice and an opportunity to be heard.

"2. The trial court erred in overruling defendant's plea in bar made in defense to the armed robbery indictment.

"3. The trial court erred in accepting defendant's plea of guilty to the crime of unarmed robbery without first following certain procedures to determine if it was knowingly, voluntarily and intelligently made."

The first trial court error cited by defendant, dismissal of the robbery indictment without notice to the defendant or opportunity to be heard thereon, is without merit. By order of May 8, 1975, the trial court, on defendant's motion, had set the verdict aside and had granted a new trial on the indictment. Some days later the State moved that a nolle prosequi be entered on the indictment, the motion was sustained, and the trial court, by order of May 16, 1975, removed the cause from the docket. Defendant's brief cites W.Va.Code, 62-3-2, which provides that a "person indicted for felony shall be personally present during the trial therefor." He cites Local Court Rule No. 18, applicable in the Circuit Court of Nicholas County, requiring proposed orders to be submitted to opposing counsel before presentation to the court for entry. Several cases are cited affirming the statute law that the defendant in a felony case must be present during every stage of his trial. Here the trial had ended and the court had voided, on defendant's motion, the trial verdict and judgment. The decision to prosecute or not to prosecute is essentially an executive decision. At common law approval of the court was not required for dismissal of an indictment. Rule 48, Federal Rules of Criminal Procedure, as amended, now allows dismissal with leave of court. The leave of court requirement may be "intended to prevent harassment of a defendant by charging, dismissing and without placing a defendant in jeopardy." 3 Wright, Federal Practice and Procedure, § 812 (1969). For many years the practice in West Virginia has required the consent of the court for dismissal of indictments. Denham v. Robinson, 72 W.Va. 243, 77 S.E. 970 (1913). In his brief, the defendant reasons that when the court dismissed the indictment on the State's motion without notice to the defendant or an opportunity to be heard thereon, the "ex parte proceeding was in violation of defendant's right of due process of law and in violation of W.Va.Code, 62-3-2." In State v. Burke, 130 W.Va. 64, 72, 42 S.E.2d 544, 548 (1947), the Court stated:

". . . Where a defendant has been convicted and a new trial has been granted him, the prosecution may, with the consent of the court, enter a nolle prosequi without prejudice to a new indictment or information. . . ."

We adhere to this ruling and find no error in the trial court's dismissal of the indictment.

Defendant further contends that "once the State moved to nolle prosequi defendant's indictment charging him with unarmed robbery, she was barred from further prosecuting defendant for the crime of armed robbery." Defendant's position is based on two basic propositions that further prosecution on the new indictment would violate double jeopardy and due process of law provisions of the constitutions of the United States and of West Virginia. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

Among cases cited by defendant in support of his double jeopardy arguments is State v. Holland, 149 W.Va. 731, 143 S.E.2d 148 (1965). The second point of the syllabus of that decision holds:

"Where a conviction and sentence are set aside and held to be void by motion of the defendant in the trial court, by an appeal, or by habeas corpus proceedings, double jeopardy is not applicable because in each instance it is waived and there is no inhibition to another trial for the same offense."

He also cites State v. Burke, supra, the syllabus point of which reads:

"When an accused has been tried and convicted by a justice of the peace on a valid warrant and the judgment of conviction is vacated and annulled by an appeal taken by him to the criminal court of the county, and while such appeal is pending and before it is dismissed, he is indicted for the same offense and is tried and convicted in that court, the provision of the Constitution of this State, Article III, Section 5, that no person, in any criminal case, shall be twice put in jeopardy of life or liberty for the same offense does not apply; and in such case the accused may not plead his conviction on the warrant in bar of the prosecution for the same offense in the trial on the indictment."

Defendant reasons that the dismissed indictment was for unarmed robbery and the new indictment is for armed robbery, a different offense. As above noted, the West Virginia statute on robbery, W.Va. Code, 61-2-12, does not delineate degrees of the crime on the basis of armed and unarmed robbery. The first sentence of the statute is one degree of robbery, with a sentence of from ten years to life imprisonment, and the second sentence related to another degree of the crime, with a sentence...