State v. Palmer

• Decision Date: 07 December 2001
• Docket Number: No. 29636.,29636.
• Citation: 210 W.Va. 372,557 S.E.2d 779
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Herman R. PALMER, Defendant Below, Appellant.

557 S.E.2d 779

210 W.Va. 372

STATE of West Virginia, Plaintiff Below, Appellee, v. Herman R. PALMER, Defendant Below, Appellant.

No. 29636.

Supreme Court of Appeals of West Virginia.

Submitted October 3, 2001.

Decided December 7, 2001.

Dissenting Opinion of Justice Davis December 12, 2001.

Christopher C. Quasebarth, Assistant Prosecuting Attorney, Martinsburg, West Virginia, Attorney for Appellee.

Christopher K. Robertson, Esq., Jackson & Kelly, Martinsburg, West Virginia, Attorney for Appellant.

PER CURIAM.

Herman R. Palmer, defendant below and appellant herein, appeals the November 6, 2000 order of the Circuit Court of Berkeley County that denied reconsideration of his motion for correction of sentence filed pursuant to W. Va. R.Crim. P. 35(a). Palmer was convicted and sentenced for felony third-offense driving while suspended or revoked for driving under the influence, W. Va.Code § 17B-4-3(b), and sought in his post-trial Rule 35(a) motion to challenge the sufficiency of the indictment with respect to such offense. The circuit court denied the motion, concluding that the charging instrument was sufficient under the standard for untimely challenges to indictments set forth in State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996). We now reverse, concluding that the indictment in this case merely alleged prior convictions for driving with a revoked license— without any express or implied reference to such convictions having been predicated upon DUI-related revocations—and therefore did not state the essential elements of the offense for which Palmer was convicted and sentenced.

I. BACKGROUND

Palmer was indicted in February 2000 in connection with a July 31, 1998 incident where he allegedly drove an automobile through an intersection and struck another car that was stopped at a traffic light. Palmer's driver's licence had been revoked for driving under the influence ("DUI") since 1992, and he had apparently twice before been convicted of driving while suspended or revoked for DUI. The single-count indictment contained the following charge:

That Herman R. Palmer on or about the ___ [sic] day of July, 1998, in said County of Berkeley and the State of West Virginia, did unlawfully and feloniously drive and operate a motor vehicle, to-wit: a blue in color 1992 Dodge Shadow, bearing West Virginia Registration 9C 1381, upon public highways of said County and State at a time when his privilege or driver's license to operate a motor vehicle had been lawfully revoked for driving under the influence of alcohol, the said Herman R. Palmer having previously been convicted in the Magistrate Court of Berkeley County, West Virginia, on the 27th day of December, 1995 of driving on a suspended/revoked license, and subsequently being convicted in the Magistrate Court of Berkeley County, West Virginia, on the 2nd day of December, 1997, of driving on a suspended/revoked license, in violation of Chapter 17B, Article 4, Section 3, of the Code of West Virginia, as amended, against the peace and dignity of the State.

Palmer was subsequently convicted of felony third-offense driving while suspended or revoked for DUI following a jury trial held on April 11, 2000. Palmer did not challenge the sufficiency of the indictment with regard to this offense either before or at trial; did not object to evidence presented by the State indicating that he had twice before been convicted of driving while revoked for DUI; and did not object to the jury being instructed on the elements of the felony third-offense crime set forth in W. Va.Code § 17B-4-3(b) (1994).¹ A motion for a new trial filed pursuant to W. Va. R.Crim. P. 33, which was later denied by the circuit court, similarly failed to allege any error resulting from deficiencies in the indictment.

Palmer was subsequently sentenced on June 6, 2000 to one-to-three years imprisonment and fined $5,000—the maximum punishment permitted under § 17B-4-3(b). Palmer subsequently obtained appointed counsel for purposes of filing an appeal.² Shortly thereafter, on August 23, 2000, counsel filed the subject motion to correct sentence, asserting for the first time that the indictment was insufficient to support sentencing on the felony third-offense conviction because nowhere in the indictment was it alleged that Palmer's previous convictions involved revocations relating to DUI. According to Palmer, the indictment at best only charged him with misdemeanor first-offense driving while suspended or revoked for DUI.³

The circuit court denied Palmer's motion to correct sentence, reasoning in its August 29, 2000 order that under State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996), the indictment should be construed in favor of validity based upon the defendant's failure to timely challenge its sufficiency. The circuit court went on to state in its order that

this particular indictment is sufficient because it: (1) states the elements of the offense charged; (2) the defendant was put on fair notice of the charge against him and in fact defended himself on those charges; and (3) the [d]efendant's conviction as it stands prevents him from being placed in double jeopardy. In addition, the dates of the two DUI on ... suspended/revoked charges were put into the indictment and substantial evidence was presented at trial that these two priors were DUI on ... suspended/revoked charges....

A subsequent motion for reconsideration was likewise denied, and this appeal followed.

II. STANDARD OF REVIEW

Palmer's motion for correction of sentence was made pursuant to West Virginia Rule of Criminal Procedure 35(a). This Court indicated the proper standard of review for rulings on Rule 35 motions in syllabus point one of State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996):

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.

See also State v. Duke, 200 W.Va. 356, 489 S.E.2d 738, 744 (1997)

. Because the lower court's ruling on the motion to correct sentence turned exclusively upon the legal issue of whether the underlying indictment stated the offense for which Palmer was convicted, we undertake plenary review. See syl. pt. 2, in part, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996) ("Generally, the sufficiency of an indictment is reviewed de novo."); see also syl. pt. 3, State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999); syl. pt. 7, State v. Bull, 204 W.Va. 255, 512 S.E.2d 177 (1998).

III. DISCUSSION

Palmer argues that the indictment in this case was insufficient to charge him with the crime for which he was ultimately convicted because, inter alia, it failed to properly allege as status elements his two prior convictions for driving while suspended or revoked for DUI. The State counters by asserting that because Palmer was untimely in objecting to the indictment or otherwise taking steps to limit the jury's consideration of the felony third-offense issue, the Court must examine the indictment under the liberal construction announced in State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996). According to the State, the indictment was sufficient under this standard because, among other things, it referenced the prior offenses by both date of judgment and place of conviction.

As an initial matter, the Court agrees with the State that our analysis in this case must be guided by our statement in syllabus point one of Miller:

Rule 12(b)(2) of the West Virginia Rules of Criminal Procedure requires that a defendant must raise any objection to an indictment prior to trial. Although a challenge to a defective indictment is never waived, this Court literally will construe an indictment in favor of validity where a defendant fails timely to challenge its sufficiency. Without objection, the indictment should be upheld unless it is so defective that it does not, by any reasonable construction, charge an offense under West Virginia law or for which the defendant was convicted.

See also syl. pt. 6, State v. Bull, 204 W.Va. 255, 512 S.E.2d 177 (1998); syl. pt. 3, State ex rel. Thompson v. Watkins, 200 W.Va. 214, 488 S.E.2d 894 (1997) (per curiam).⁴ The purpose behind this rule is to prevent a criminal defendant from "sandbagging" or deliberately foregoing raising an objection to an indictment so that the issue may later be used as a means of obtaining a new trial following conviction. See 4 Wayne R. LaFave et al., Criminal Procedure § 19.1(d), at 741 (2d ed.1999). The rule we announced in Miller now makes this stratagem extremely perilous.

As is made clear by W. Va. R.Crim. P. 12(b)(2),⁵ a challenge to an indictment must be made at the earliest possible moment. And while it is conceivable that Palmer, because of the alleged deficiencies in the indictment, was not aware prior to trial that the State was attempting to charge him with third-offense driving while revoked for DUI, he was nevertheless clearly put on notice as to such intention when the prosecution introduced evidence of his prior convictions and sought an instruction on the elements of the felony third-offense charge. Palmer should therefore have sought to limit the scope of the indictment at trial by making the necessary objections, and his failure to do so requires that this Court now liberally construe the indictment in favor of charging the offense for which he was convicted.

The failure of an indictment to adequately state the essential elements of a criminal charge is a fundamental defect that may be raised at any time. See syl. pt. 1, State ex rel. Combs v. Boles, 151 W.Va. 194, 151 S.E.2d 115 (1966) ("In order to lawfully...