State v. McCraine, No. 30592.

CourtSupreme Court of West Virginia
Writing for the CourtALBRIGHT, Justice.
Citation588 S.E.2d 177,214 W.Va. 188
PartiesSTATE of West Virginia, Plaintiff Below, Appellee, v. Robert Joel McCRAINE, Defendant Below, Appellant.
Decision Date16 May 2003
Docket NumberNo. 30592.

588 S.E.2d 177
214 W.Va.

STATE of West Virginia, Plaintiff Below, Appellee,
Robert Joel McCRAINE, Defendant Below, Appellant

No. 30592.

Supreme Court of Appeals of West Virginia.

Submitted January 15, 2003.

Decided May 16, 2003.

Concurring and Dissenting Opinion of Justice Davis May 20, 2003

588 S.E.2d 182
Robert C. Stone, Jr., Martinsburg, for the Appellant

Pamela Jean Games-Neely, Prosecuting Attorney, Christopher C. Quasebarth, Assistant Prosecuting Attorney, Martinsburg, for the Appellee.

588 S.E.2d 178
588 S.E.2d 179
588 S.E.2d 180

588 S.E.2d 181
ALBRIGHT, Justice.

This case is the appeal of the defendant below, Robert Joel McCraine (hereinafter "Appellant"), from the August 27, 2001, sentencing order of the Circuit Court of Berkeley County stemming from Appellant's conviction by jury trial of a felony charge of third offense driving under the influence (hereinafter "DUI") and a misdemeanor charge of first offense driving while the license

214 W.Va. 183
to do so has been revoked for DUI (hereinafter "driving revoked for DUI"). Appellant seeks to overturn the convictions on multifarious grounds. After completing a detailed review of the petition, briefs, record, arguments of counsel and applicable law with regard to each assigned error, we reverse the convictions and remand the case for further proceedings for the reasons set forth below.

I. Facts and Procedural History

Around 2:30 a.m. on June 26, 1998, Appellant was driving in the city of Martinsburg, West Virginia. Upon observing Appellant's car speeding in the city proper, an on-duty Martinsburg policeman, Officer John Sherman, stopped Appellant for speeding. At the time of the stop, which actually took place outside of the city limits, Officer Sherman discovered that Appellant exhibited signs of intoxication. According to the State, Appellant did not successfully complete several field sobriety tests due in part to his inability to comply with the officer's directions, and Appellant also refused to take a secondary breath test. Based upon his observations, Officer Sherman arrested Appellant and took him to magistrate court, where the officer filed a criminal complaint alleging two charges: third offense DUI, a felony, and first offense driving revoked for DUI, a misdemeanor.

According to Appellant, at or before a preliminary hearing held on November 6, 1998, he invoked his statutory right to trial in magistrate court1 of the misdemeanor charge by moving to sever the charges. The magistrate granted the motion. As related by Appellant, at a later hearing on the misdemeanor charge the State moved to dismiss the complaint, and the motion was granted by the magistrate without prejudice.2

The felony charge proceeded to preliminary hearing on November 6, 1998, at which the magistrate found that the requisite probable cause existed to bind the matter over to the grand jury. During the February 1999 term of the Berkeley County Grand Jury, Appellant was named in a two-count indictment: Count I charged Appellant with the felony of third offense DUI in violation of West Virginia Code § 17C-5-2(k);3 Count II charged Appellant with the misdemeanor of driving a motor vehicle when the privilege to drive has been revoked for DUI in violation of West Virginia Code § 17B-4-3(b).4 Appellant was not arraigned on these charges until August 7, 2000.5

Among the issues considered by the lower court at an October 31, 2000, pretrial hearing which are relevant to this appeal, were Appellant's motions to suppress evidence obtained as a result of the arrest; to bifurcate jury consideration of the felony DUI charge from the prior DUI convictions; to sever the two counts of the indictment for separate trials; and to dismiss both charges before the circuit court and remand the matters, as appropriate, for trial in magistrate court. The record reflects that these motions were denied after receiving individual attention by the lower court at the hearing, and that the basis for the denial of each was later memorialized by the court in a Pre-Trial Hearing Order entered on January 23, 2001.

A two-day trial by jury was begun on November 2, 2000. The State rested following the testimony of its sole witness, Officer Sherman. Thereafter, Appellant moved for and was denied judgment of acquittal for both charges. At the conclusion of its deliberations

214 W.Va. 184
on November 3, 2000, the jury returned a guilty verdict as to both counts of the indictment. Post trial, Appellant filed another motion for judgment of acquittal, which the trial court again denied. Thereafter on January 9, 2001, the trial court sentenced Appellant to six months in jail for the driving revoked for DUI conviction and one-to-three years in the penitentiary for the third offense DUI conviction, with the sentences to run consecutively. The trial court then suspended the penitentiary sentence and granted Appellant the alternative sentence of home incarceration.6 The sentencing order was reentered on August 27, 2001, after the lower court granted Appellant's motion to do so in order to enlarge the appeal period. It is from the August 27, 2001, order that this appeal is taken.

II. Standard of Review

Appellant assigns numerous and diverse errors to the trial court proceedings. Because the issues raised involve varying standards of review, we will discuss each alleged error separately and set forth any specific standard of review applicable to a particular error at the beginning of each discussion. Nevertheless, we note "[g]enerally [] [that] findings of fact are reviewed for clear error and conclusions of law are reviewed de novo. However, ostensible findings of fact, which entail the application of law or constitute legal judgments which transcend ordinary factual determinations, must be reviewed de novo." Syl. Pt. 1, in part, State ex rel. Cooper v. Caperton, 196 W.Va. 208, 470 S.E.2d 162 (1996).

III. Discussion

Appellant raises the following assignments of error in this appeal: (1) testimony of the arresting officer should have been suppressed because it involved information obtained during an invalid arrest; (2) the third offense DUI charge should have been dismissed because one of the predicate DUI convictions resulted from an uncounseled guilty plea; (3) the two charges should have been severed due to the prejudicial effect of trying them in a single proceeding; (4) judgment of acquittal should have been entered with regard to the driving revoked for DUI charge because the State failed to prove knowledge of the revocation as an essential element of the crime; (5) the pending DUI charge should have been bifurcated from consideration of proof of prior convictions; and (6) the jury should have been instructed that first offense DUI and second offense DUI are lesser included offenses of third offense DUI. We will consider each of these alleged errors in turn.

A. Motion to Suppress

When reviewing challenges to a circuit court's suppression hearing ruling, we are guided by the following review standard:

On appeal, legal conclusions made with regard to suppression determinations are reviewed de novo. Factual determinations upon which these legal conclusions are based are reviewed under the clearly erroneous standard. In addition, factual findings based, at least in part, on determinations of witness credibility are accorded great deference.

Syl. Pt. 3, State v. Stuart, 192 W.Va. 428, 452 S.E.2d 886 (1994).

Appellant claims that the trial court erred by permitting the jury to consider testimony of Officer Sherman regarding his contact with Appellant on the night of the incident because the stop and subsequent arrest occurred outside the officer's territorial jurisdiction. The State asserts that the lower court ruling is in accord with the provisions of West Virginia Code § 8-14-3 (1990) (Repl.Vol.1998),7 which defines the authority

214 W.Va. 185
and duties of municipal police officers. Appellant counters by arguing that this statutory provision was found to be inapplicable in a very similar situation decided by this Court in State ex rel. State v. Gustke, 205 W.Va. 72, 516 S.E.2d 283 (1999). We fail to see such similarity. Unlike the facts in Gustke, the record in the case before us contains unrefuted evidence that the officer was on duty, a misdemeanor was committed in the officer's presence within the city proper and the officer began the stop by turning on his lights before he left the city limits. Having begun the stop within the city limits, the officer was acting within his authority as set forth in West Virginia Code § 8-14-3 by completing a stop within the county where the municipality is situate for an offense committed in the officer's presence within the corporate limits of the city. Consequently, we do not find the lower court was clearly wrong when it denied the motion to suppress.

B. Motion to Dismiss

Appellant next contends that the trial court erred in denying his motion to dismiss because a third offense DUI charge could not be proven since the State did not adequately demonstrate Appellant had knowingly and voluntarily waived his right to counsel before tendering a guilty plea to a 1990 DUI conviction.

Our determination of whether a waiver of the right to counsel is valid is guided by our holding in syllabus point one of State ex rel. Widmyer v. Boles, 150 W.Va. 109, 144 S.E.2d 322 (1965), which states:

The right of the defendant in a criminal proceeding to the assistance of counsel is a fundamental right, the waiver of which will not be presumed by the failure of the accused to request counsel, by the entry of a guilty plea or by reason of a record silent concerning the matter of counsel and the conviction of a defendant in the absence of counsel or of an affirmative showing of an intelligent waiver of such right is void.

We have said that a criminal defendant's right to counsel is effectively waived when the conduct of the accused demonstrates that the waiver was...

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