State v. Penwell, 23336
| Decision Date | 16 January 1997 |
| Docket Number | No. 23336,23336 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia, Plaintiff Below, Appellee, v. Ricky PENWELL, Defendant Below, Appellant. |
Syllabus by the Court
1. "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).
2. Syllabus point 8, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).
3. "It is always presumed that the legislature will not enact a meaningless or useless statute." Syllabus point 4, State ex rel. Hardesty v. Aracoma-Chief Logan No. 4523, Veterans of Foreign Wars of the United States, 147 W.Va. 645, 129 S.E.2d 921 (1963).
4. " Syllabus point 2, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).
5. "One of the inquiries on a motion for a change of venue should not be whether the community remembered or heard the facts of the case, but whether the jurors had such fixed opinions that they could not judge impartially the guilt or innocence of the defendant." Syllabus point 3, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).
6. " Syllabus, State v. Ludwick, 197 W.Va. 70, 475 S.E.2d 70 (1996).
Scott E. Johnson, Assistant Attorney General, Charleston, for Appellee.
David A. Camilletti, Shepherdstown, for Appellant.
This is an appeal by the defendant, Ricky Penwell, from an order of the Circuit Court of Jefferson County sentencing him on five charges contained in a five-count indictment returned against him by a Jefferson County grand jury. Specifically, the defendant was convicted of aggravated robbery, assault during the commission of a felony, obstructing a police officer, and unauthorized taking of a vehicle. As a consequence of his convictions, the defendant was sentenced to life in the State penitentiary as a recidivist and to lesser periods of time on individual charges. On appeal, the defendant claims that the trial court should have found that the assault during the commission of a felony charge contained in the indictment was a lesser included offense in the aggravated robbery charge and that by not doing so the trial court violated double jeopardy principles in allowing convictions on both charges and imposing sentences, specifically the recidivist sentence, growing out of the two charges. The defendant also claims that the trial court erred in failing to grant him a change in venue and that the court should have severed the trial of certain charges in the indictment from the trial of other charges in the indictment.
After reviewing the issues presented and the record filed, this Court cannot conclude that the circuit court committed reversible error. The judgment of the Circuit Court of Jefferson County is, therefore, affirmed.
At approximately 1:30 a.m. on May 12, 1994, Glen K. Penwell, who was not closely related to the defendant, Ricky Penwell, but knew him, picked up the defendant and a friend, Carlin Bell, who were hitchhiking. After dropping Carlin Bell off at his residence, Glen K. Penwell proceeded to take the defendant home with him. There, Glen K. Penwell and the defendant drank beer and watched a porno movie. Later, the defendant suggested that they go to bed. They proceeded to bed, and once there the defendant suggested that they engage in sex. According to Glen K. Penwell, he was not interested and refused. A struggle ensued, and in the struggle the defendant knocked Glen K. Penwell unconscious and tied him to his bedposts with pieces of torn bed sheets and a telephone cord. He proceeded to take certain items of Glen K. Penwell's property, including his 1986 Chevrolet Blazer.
Glen K. Penwell was found by neighbors later that day, tied to his bed. The State Police were contacted and began searching for the defendant and the missing vehicle. Some five days later, on May 17, 1994, the defendant was observed operating another vehicle, an older model Oldsmobile with expired Maryland plates. A Jefferson County sheriff's deputy gave chase, and ultimately the defendant lost control of his vehicle and wrecked it. The defendant was taken into custody and handcuffed with his hands behind his back. He was placed in the front seat of the deputy's cruiser while the deputy and several other police officers busied themselves investigating the wreck. While they were so occupied, the defendant maneuvered his hands around to the front of his body, slid across the front seat, and drove off with the deputy's vehicle and its contents. The officers on the scene began a fresh pursuit, but lost sight of the vehicle. Despite a massive search, it was a considerable time before the defendant was ultimately located and again taken into custody.
Subsequent to these events, the defendant was indicted during the September, 1994 term of the Jefferson County Grand Jury in a five-count indictment, which charged him with aggravated robbery in violation of W.Va.Code § 61-2-12 (Count I), 1 assault during the commission of a felony, in violation of W.Va.Code § 61-2-10 (Count II), 2 obstructing a police officer, in violation of W.Va.Code § 61-5-17 (Count III), unauthorized taking of a vehicle in violation of W.Va.Code § 17A-8-4 (Count IV), and petty larceny in violation of W.Va.Code § 61-3-13 (Count V). The first two counts were grounded on the beating and robbery of Glen K. Penwell which occurred on May 12, 1994. The remaining counts were based on the events which occurred on May 17, 1994, when the defendant escaped with the police cruiser and the personal property which it contained.
Prior to trial, on November 10, 1994, the defendant moved for a change of venue. Later, on December 1, 1994, he filed a motion with the circuit court to dismiss Count II of the indictment, the count charging him with assault during the commission of a felony, on the ground that the crime was a lesser included offense in and merged with the aggravated robbery charge contained in Count I of the indictment. Still later, on December 5, 1994, the defendant moved to sever the trial of Counts III, IV, and V of the indictment from the trial of Counts I and II. The circuit court denied the motion for change of venue and on December 20, 1994, refused to declare the assault during the commission of a felony charge a lesser included offense in the aggravated robbery charge. On December 20, 1994, the court also granted a severance of the trial of Count V of the indictment from the trial of the other charges, but refused to grant a severance of the trial of Counts III and IV from the trial of Counts I and II.
On appeal, the defendant's first claim is that the trial court erred in denying his motion to dismiss Count II of the indictment. He specifically argues that double jeopardy principles normally bar successive prosecutions for greater and lesser included offenses which occur in the same sequence of events. Conner v. Griffith, 160 W.Va. 680, 238 S.E.2d 529 (1977), and Payne v. Virginia, 468 U.S. 1062, 104 S.Ct. 3573, 82 L.Ed.2d 801 (1984). He does recognize that there is an exception where the legislature has clearly indicated that multiple punishments are to be assigned. Conner v. Griffith, Id.
In State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992), this Court discussed at some length whether one offense is so included in another that imposition of multiple punishments for multiple offenses growing out of the same sequence of events would violate double jeopardy principles. In syllabus point 7 of State v. Gill, the Court stated:
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.
The Court then proceeded to state, in syllabus point 8:
In ascertaining legislative intent, a court should look initially at the language of the involved statutes and, if necessary, the legislative history to determine if the legislature has made a clear expression of its intention to aggregate sentences for related crimes. If no such clear legislative intent can be discerned, then the court should analyze the statutes under the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to determine whether each...
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