Richard H. Lorensen
Darrell
V. McGraw, Jr.
Greenbrier County Public Defender
Attorney
General
Michael R. Whitt
Heather
D. Foster
Lewisburg, West Virginia
Assistant
Attorney General
Attorneys for the Appellant
Charleston,
West Virginia
Attorneys
for Appellee
The Opinion of the Court was delivered PER CURIAM.
1. “Where
the issue on an appeal from the circuit court is clearly a question of law
or involving an interpretation of a statute, we apply a de novo standard
of review.” Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194
W. Va. 138, 459 S.E.2d 415 (1995).
2. “A
person convicted of a felony cannot be sentenced under the habitual criminal
statute, [W. Va.] Code § 61-11-19 [(2000)], unless there is filed by
the prosecuting attorney with the court at the same term, and before sentencing,
an information as to the prior conviction or convictions and for the purpose
of identification the defendant is confronted with the facts charged in the
information and cautioned as required by the statute.”
Syllabus point 3, State ex
rel. Housdon v. Adams, 143 W. Va. 601, 103 S.E.2d 873 (1958)
.
Per Curiam:
Timothy A. Cavallaro, appellant/defendant
below (hereinafter referred to as “Mr. Cavallaro”), appeals a conviction
and sentence for unlawful wounding,
(See footnote 1) and a subsequent sentence of
life imprisonment under the state's recidivist statute. Here, Mr. Cavallaro
contends that the trial court was without jurisdiction to impose a life sentence
under the recidivist statute.
(See footnote 2) The state has confessed error
on this matter and agrees with Mr. Cavallaro that the life sentence should be
vacated. (See
footnote 3) Based
upon the parties' arguments on appeal, the record designated for appellate review,
and the pertinent authorities, we affirm the conviction and sentence for unlawful
wounding. However, we reverse that part of the judgment that imposes a life
imprisonment sentence under the recidivist statute.
Mr. Cavallaro was apprehended
after the incident and indicted on several charges, one of which was malicious
wounding.
(See footnote 5) The case was tried before a jury. On June
1, 2000, the jury returned a verdict finding Mr. Cavallaro guilty of unlawful
wounding, a lesser included offense of malicious wounding. After the jury
was discharged, the state filed an information alleging Mr. Cavallaro had
four prior felony convictions. The information sought a sentence of life imprisonment
under the recidivist statute. Mr. Cavallaro was not required to answer the
recidivist information until the next term of court. The next term of court
began the following week, on June 6, 2000.
On July 3, 2000, Mr. Cavallaro
was required, in open court, to answer the recidivist information. At that
time, Mr. Cavallaro moved the trial court to dismiss the information because
he was not required to answer it prior to the expiration of the term of court
in which he was convicted. The trial court denied the motion. Mr. Cavallaro thereafter decided to stand mute. He neither admitted nor denied the allegations
contained in the information. Consequently, a jury was summoned on September
21, 2000, to decide the issues. The jury returned a verdict against Mr. Cavallaro.
On October 4, 2000, the trial court entered an order sentencing Mr. Cavallaro
to life imprisonment. It is from this sentence that Mr. Cavallaro now appeals.
West Virginia Code §
61-11-19 (2000), which sets forth the procedures governing recidivist proceedings,
provides in pertinent part:
It
shall be the duty of the prosecuting attorney when he has knowledge of former
sentence or sentences to the penitentiary of any person convicted of an offense
punishable by confinement in the penitentiary to give information thereof
to the court immediately upon conviction and before sentence. Said court shall,
before expiration of the term at which such person was convicted, cause such
person or prisoner to be brought before it, and upon an information filed
by the prosecuting attorney, setting forth the records of conviction and sentence,
or convictions and sentences, as the case may be, and alleging the identity
of the prisoner with the person named in each, shall require the prisoner
to say whether he is the same person or not.
The provisions of this statute are mandatory. The statute must be complied
with fully before an enhanced sentence for recidivism may be imposed. See
Syl. pt. 2, Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981) (“Habitual
criminal proceedings providing for enhanced or additional punishment on proof
of one or more prior convictions are wholly statutory. In such proceedings,
a court has no inherent or common law power or jurisdiction. Being in derogation
of the common law, such statutes are generally held to require a strict construction
in favor of the prisoner.”).
The disposition of the present
case is controlled by State ex rel. Housdon v. Adams, 143 W. Va. 601,
103 S.E.2d 873 (1958). Housdon was a habeas corpus attack by the defendant
on his sentence of life in prison under our recidivist statute. The defendant
contended that the life sentence was invalid because he had been convicted
of the underlying criminal offense in one term of court, and in a subsequent
term of the court he was charged and sentenced under the recidivist statute.
We agreed with the defendant in Housdon that the recidivist statute
required that he be arraigned (not tried) on the recidivist information during
the same term of court in which he was convicted of the underlying crime.
We held in syllabus point 3 of Housdon:
A
person convicted of a felony cannot be sentenced under the habitual criminal
statute, [W. Va.] Code § 61-11-19, unless there is filed by the prosecuting
attorney with the court at the same term, and before sentencing, an information
as to the prior conviction or convictions and for the purpose of identification
the defendant is confronted with the facts charged in the information and
cautioned as required by the statute.
In this case, immediately after
the jury was discharged, the prosecutor expressly informed the trial court that
a recidivist information was being filed against Mr. Cavallaro and that the
trial court had to confront Mr. Cavallaro regarding the information. The trial
court erroneously believed that so long as the information was filed during
the term of court in which Mr. Cavallaro was convicted, the recidivist statute
was followed. Consequently, the trial court delayed arraigning Mr. Cavallaro
on the recidivist information until the subsequent term of court.
Pursuant to Housdon,
the trial court was without jurisdiction under the facts of this case to permit
the prosecution and sentence of Mr. Cavallaro on the recidivist information.
Consequently, we must reverse the recidivist sentence. In doing so, however,
we do not disturb the sentence for the underlying conviction of unlawful wounding.
See Syl. pt. 7, State ex rel. Beckett v. Boles, 149 W. Va. 112,
138 S.E.2d 851 (1964) (“A petitioner . . . upon whom punishment by imprisonment
for an invalid additional period has been improperly imposed under the habitual
criminal statute, may be relieved of the void portion of the punishment, but
will not be discharged from serving the maximum term provided by statute for
the principal offense.”).
Affirmed
in part; Reversed in part; Remanded.