State v. McGilton, No. 11–0410.

CourtSupreme Court of West Virginia
Writing for the CourtWORKMAN
Citation229 W.Va. 554,729 S.E.2d 876
PartiesSTATE of West Virginia, Plaintiff Below, Respondent v. Brent Levi McGILTON, Defendant Below, Petitioner.
Docket NumberNo. 11–0410.
Decision Date19 June 2012

229 W.Va. 554
729 S.E.2d 876

STATE of West Virginia, Plaintiff Below, Respondent
v.
Brent Levi McGILTON, Defendant Below, Petitioner.

No. 11–0410.

Supreme Court of Appeals of
West Virginia.

Submitted April 18, 2012.
Decided June 19, 2012.


[729 S.E.2d 877]



Syllabus by the Court

1. “[A] double jeopardy claim [is] reviewed de novo.” Syllabus Point 1, in part, State v. Sears, 196 W.Va. 71, 468 S.E.2d 324 (1996).

2. “The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution consists of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” Syllabus Point 1, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).

3. “ ‘The Double Jeopardy Clause in Article III, Section 5 of the West Virginia Constitution, provides immunity from further prosecution where a court having jurisdiction has acquitted the accused. It protects against a second prosecution for the same

[729 S.E.2d 878]

offense after conviction. It also prohibits multiple punishments for the same offense.’ Syllabus Point 1, Conner v. Griffith, 160 W.Va. 680, 238 S.E.2d 529 (1977).” Syllabus Point 2, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).

4. “The purpose of the Double Jeopardy Clause is to ensure that sentencing courts do not exceed, by the device of multiple punishments, the limits prescribed by the legislative branch of government, in which lies the substantive power to define crimes and prescribe punishments.” Syllabus Point 3, State v. Sears, 196 W.Va. 71, 468 S.E.2d 324 (1996).

5. “ ‘A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.’ Syl. Pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951).” Syllabus Point 1, State v. Jarvis, 199 W.Va. 635, 487 S.E.2d 293 (1997).

6. “A claim that double jeopardy has been violated based on multiple punishments imposed after a single trial is resolved by determining the legislative intent as to punishment.” Syllabus Point 7, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).

7. “Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.” Syllabus Point 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968).

8. “ ‘The jury is the trier of the facts and in performing that duty it is the sole judge as to the weight of the evidence and the credibility of the witnesses.’ Syl. Pt. 2, State v. Bailey, 151 W.Va. 796, 155 S.E.2d 850 (1967).” Syllabus Point 2, State v. Martin, 224 W.Va. 577, 687 S.E.2d 360 (2009).

9. A defendant may be convicted of multiple offenses of malicious assault under West Virginia Code § 61–2–9(a) (2004) against the same victim even when the offenses were a part of the same course of conduct. Such convictions do not violate the double jeopardy provisions contained in either the United States Constitution or the West Virginia Constitution as long as the facts demonstrate separate and distinct violations of the statute.


Robert C. Catlett, Esq., Deputy Public Defender, Office of the Public Defender, Charleston, WV, for Petitioner.

Scott R. Smith, Esq., Ohio County Prosecuting Attorney, Stephen L. Vogrin, Esq., Assistant Prosecuting Attorney, Wheeling, WV, for Respondent.


WORKMAN, Justice:

This case is before this Court upon appeal of a final order of the Circuit Court of Ohio County entered on January 12, 2011. In that order, the petitioner, Brent Levi Victor McGilton, was convicted by a jury of three counts of malicious assault against his wife, Angela McGilton (hereinafter, “the victim”). In this appeal, the petitioner argues that the circuit court violated his double jeopardy protections by sentencing him for three counts of malicious assault for three wounds caused during the same course of conduct. The petitioner was sentenced to two to ten years on the first count of malicious assault, two to ten years on the second count of malicious assault, and four to ten years on the third count of malicious assault. Based upon the parties' briefs and arguments in this proceeding, as well as the relevant statutory and case law, this Court is of the opinion that the circuit court did not commit reversible error and, accordingly, affirms the decision below.

I.
FACTS

On November 22, 2009, the petitioner stabbed his wife numerous times during an argument in their home. She was stabbed twice in the neck, multiple times in the back of her head, once in the ankle, and once in the back of her leg. The victim said that while the petitioner was stabbing her, he stated that he was “going to fu*king kill [her].” The victim managed to escape, get to the bathroom, and call 911.

Officer Kenneth Parker of the Wheeling Police Department was just a few blocks

[729 S.E.2d 879]

away when he received the call from dispatch notifying him of the stabbing. He stated that he arrived at the scene of the crime in less than one minute. Officer Parker testified that the petitioner was arrested after a failed attempt to escape. The victim was then taken to the hospital for treatment of her injuries. Thereafter, she returned to her home and went to sleep. When she awakened, the petitioner had been released from police custody and was standing at the foot of her bed. He once again threatened to kill her stating that “he didn't want to go back to jail [and] if he was to go to jail, ... he would do it right next time and he would go to Iowa.” 1

In January of 2010, the petitioner was indicted on three counts of malicious assault and one count of assault during commission of a felony. On June 22, 2010, the petitioner's trial began. During pre-trial motions, counsel for the petitioner moved for dismissal of the charge of assault during commission of a felony based upon double jeopardy grounds; he did not raise any double jeopardy arguments regarding the three separate counts of malicious assault. The circuit court dismissed the assault during commission of a felony count and the case proceeded on the three charges of malicious assault. On June 23, 2010, the petitioner was found guilty of all three counts of malicious assault.

On August 2, 2010, prior to his sentencing hearing, a recidivist trial was held wherein a jury found the petitioner to be the same person convicted of the felony of wanton endangerment on April 21, 2005. In consideration of his prior conviction, one of the malicious assault sentences was later enhanced by doubling the minimum sentence.2 On January 12, 2011, the petitioner was sentenced to two to ten years on the first count of malicious assault, two to ten years on the second count of malicious assault, and four to ten years on the third count of malicious assault. This appeal followed.

II.
STANDARD OF REVIEW

The petitioner argues that the circuit court violated his double jeopardy protections by sentencing him for three counts of malicious assault for three wounds caused during the same course of conduct. This Court has explained that “[A] double jeopardy claim [is] reviewed de novo.” Syllabus Point 1, in part, State v. Sears, 196 W.Va. 71, 468 S.E.2d 324 (1996). With this standard in mind, this Court will consider the petitioner's argument.

III.
DISCUSSION

At the outset, this Court must first consider whether the petitioner's double jeopardy argument has been properly preserved below. The petitioner argues that regardless of whether the issue was properly raised below, double jeopardy issues arising from an illegal sentence can be raised at any time pursuant to W.Va. R. Crim.P. Rule 35(a), which provides that: “The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time period provided herein for the reduction of sentence.” He then

[729 S.E.2d 880]

contends that irrespective of Rule 35(a), the circuit court's error qualifies as “plain error.” This Court has said that plain error is defined as “(1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Syllabus Point 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). The petitioner argues that the error in this case is plain, affected his substantial rights, and seriously affected the fairness, integrity, and public reputation of the judicial proceedings.

Conversely, the State contends that the petitioner waived this argument because he raises it for the first time on appeal. The State maintains that the United States Supreme Court has recognized that defendants may waive several fundamental constitutional rights, including double jeopardy, by failing to preserve the issue for appeal.3 Finally, the State argues that because there was no error below, the plain error doctrine is inapplicable and the petitioner's convictions for all three offenses should be affirmed.

In State v. LaRock, 196 W.Va. 294, 316, 470 S.E.2d 613, 635 (1996), this Court explained as follows:

Our cases consistently have demonstrated that, in general, the law ministers to the vigilant, not to those who sleep on their rights.... When a litigant deems himself or herself aggrieved by what he or she considers to be an important occurrence in the course of a trial or an erroneous ruling by a trial court, he or she ordinarily must object then and there or forfeit any right to complain at a later time. The pedigree for this rule is of ancient vintage, and it is premised on the notion that calling an error to the trial court's attention affords an opportunity to correct the problem before irreparable harm occurs.

This Court in LaRock further explained:


There is also an equally salutary justification for the raise or waive rule: It prevents a party from making a tactical...

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27 practice notes
  • In re Callaghan, No. 16-0670
    • United States
    • Supreme Court of West Virginia
    • February 9, 2017
    ...Court has previously discussed the issue of multiple offenses occurring within the same course of conduct. In State v. McGilton , 229 W.Va. 554, 729 S.E.2d 876 (2012), the Court held a Defendant may be convicted of multiple offenses of malicious assault under West Virginia Code § 61-2-9(a) ......
  • State v. Shingleton, No. 12–1446.
    • United States
    • Supreme Court of West Virginia
    • March 24, 2016
    ...jeopardy may be waived [however] and the failure to properly raise it in the trial court operates as a waiver.’ ” State v. McGilton, 229 W.Va. 554, 558, 729 S.E.2d 876, 880 (2012) (quoting State v. Carroll, 150 W.Va. 765, 769, 149 S.E.2d 309, 312 (1966) ).State v. Lewis, 235 W.Va. 694, 701,......
  • State v. Beskurt, No. 85737–7.
    • United States
    • United States State Supreme Court of Washington
    • January 31, 2013
    ...right. Other courts have noted this holding. See, e.g., United States v. Christi, 682 F.3d 138, 143 (1st Cir.2012); State v. McGilton, 229 W.Va. 554, 729 S.E.2d 876, 881 n. 4 (2012). In Christi, 682 F.3d at 143 n. 1, the First Circuit Court of Appeals pointed out that although the public tr......
  • State v. Coles, No. 13–0614.
    • United States
    • Supreme Court of West Virginia
    • September 18, 2014
    ...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 Menn......
  • Request a trial to view additional results
26 cases
  • In re Callaghan, No. 16-0670
    • United States
    • Supreme Court of West Virginia
    • February 9, 2017
    ...Court has previously discussed the issue of multiple offenses occurring within the same course of conduct. In State v. McGilton , 229 W.Va. 554, 729 S.E.2d 876 (2012), the Court held a Defendant may be convicted of multiple offenses of malicious assault under West Virginia Code § 61-2-9(a) ......
  • State v. Shingleton, No. 12–1446.
    • United States
    • Supreme Court of West Virginia
    • March 24, 2016
    ...jeopardy may be waived [however] and the failure to properly raise it in the trial court operates as a waiver.’ ” State v. McGilton, 229 W.Va. 554, 558, 729 S.E.2d 876, 880 (2012) (quoting State v. Carroll, 150 W.Va. 765, 769, 149 S.E.2d 309, 312 (1966) ).State v. Lewis, 235 W.Va. 694, 701,......
  • State v. Beskurt, No. 85737–7.
    • United States
    • United States State Supreme Court of Washington
    • January 31, 2013
    ...right. Other courts have noted this holding. See, e.g., United States v. Christi, 682 F.3d 138, 143 (1st Cir.2012); State v. McGilton, 229 W.Va. 554, 729 S.E.2d 876, 881 n. 4 (2012). In Christi, 682 F.3d at 143 n. 1, the First Circuit Court of Appeals pointed out that although the public tr......
  • State v. Coles, No. 13–0614.
    • United States
    • Supreme Court of West Virginia
    • September 18, 2014
    ...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 Menn......
  • Request a trial to view additional results

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