2.    “When a prior conviction constitute(s) a status element of an offense, a defendant may offer to stipulate to such prior conviction(s). If a defendant makes an offer to stipulate to a prior conviction(s) that is a status element of an offense, the trial court must permit such stipulation and preclude the state from presenting any evidence to the jury regarding the stipulated prior conviction(s). When such a stipulation is made, the record must reflect a colloquy between the trial court, the defendant, defense counsel and the state indicating precisely the stipulation and illustrating that the stipulation was made voluntarily and knowingly by the defendant. To the extent that State v. Hopkins, 192 W.Va. 483, 453 S.E.2d 317 (1994) and its progeny are in conflict with this procedure they are expressly overruled.” Syllabus Point 3, State v. Nichols, 208 W.Va. 432, 541 S.E.2d 310 (1999).

        The instant case is before this Court on an appeal from the Circuit Court of Mingo County. The appellant, Samuel B. Evans, was charged with felony offenses of third offense driving under the influence (“DUI”) in violation of W.Va. Code, 17C-5-2 [1996],   (See footnote 1)  and third offense driving while suspended for driving under the influence (“DWS/DUI”) in violation of W.Va. Code, 17B-4-3 [1999].   (See footnote 2)  The appellant appeals his conviction on both charges.

        We reverse the appellant's conviction for third offense driving under the influence of alcohol and his conviction for third offense driving while his license was revoked for driving under the influence of alcohol, and remand the case for a new trial.

        Under West Virginia law, it is well-established principle that generally “[t]he action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion.” Syllabus Point 10, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955). In accord, Syllabus Point 6, State v. Kopa, 173 W.Va. 43, 311 S.E.2d 412 (1983).

        In State v. Nichols, this Court addressed the admission of prior convictions that are status elements of offenses, holding that:

        When a prior conviction constitute(s) a status element of an offense, a defendant may offer to stipulate to such prior conviction(s). If a defendant makes an offer to stipulate to a prior conviction(s) that is a status element of an offense, the trial court must permit such stipulation and preclude the state from presenting any evidence to the jury regarding the stipulated prior conviction(s). When such a stipulation is made, the record must reflect a colloquy between the trial court, the defendant, defense counsel and the state indicating precisely the stipulation and illustrating that the stipulation was made voluntarily and knowingly by the defendant. To the extent that State v. Hopkins, 192 W.Va. 483, 453 S.E.2d 317 (1994) and its progeny are in conflict with this procedure they are expressly overruled.

Syllabus Point 3, State v. Nichols, 208 W.Va. 432, 541 S.E.2d 310 (1999).

        In Nichols, this Court recognized that stipulated-to prior convictions that are status elements of a charge shall not be placed before the jury because of their inherently prejudicial nature. Nichols requires a colloquy between the trial court, the defendant, the prosecutor, and the defense counsel to discuss the exact nature of the status element stipulations, and to assure that the stipulations are knowingly and voluntarily made by the defendant. At no point prior to or during the appellant's trial did any of the parties mention State v. Nichols, which was handed down on December 3, 1999, nearly 3 months prior to the appellant's trial.

        Although the appellant has not asserted plain error, “[t]his Court's application of the plain error rule in a criminal prosecution is not dependent upon a defendant asking the Court to invoke the rule. We may, sua sponte, in the interest of justice, notice plain error.” Syllabus Point 1, State v. Myers, 204 W.Va. 449, 513 S.E.2d 676 (1998). Plain error occurs when there is “(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 admission of the appellant's prior DUI and DWS/DUI convictions was an error that seriously affected the fairness of the appellant's criminal trial.   (See footnote 3)  We therefore find that the jury was improperly informed of the appellant's prior convictions, and that this was plain error.

Footnote: 1