1. “In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.” Syllabus Point 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).
    
    2. “A person convicted of a felony may not be sentenced pursuant to W. Va. Code, 61-11-18, -19 [1943], unless a recidivist information and any or all material amendments thereto as to the person's prior conviction or convictions are filed by the prosecuting attorney with the court before expiration of the term at which such person was convicted, so that such person is confronted with the facts charged in the entire information, including any or all material amendments thereto. W. Va. Code, 61-11-19 [1943].” Syllabus point 1, State v. Cain, 178 W. Va. 353, 359 S.E.2d 581 (1987)

    3. “The primary purpose of our recidivist statutes, W. Va. Code, 61-11-18 (1943), and W. Va. Code, 61-11-19 (1943), is to deter felony offenders, meaning persons who have been convicted and sentenced previously on a penitentiary offense, from committing subsequent felony offenses.” Syllabus point 3, in part, State v. Jones, 187 W. Va. 600, 420 S.E.2d 736 (1992).

    4. “A statute is enacted as a whole with a general purpose and intent, and each part should be considered in connection with every other part to produce a harmonious whole. Words and clauses should be given a meaning which harmonizes with the subject matter and the general purpose of the statute. The general intention is the key to the whole and the interpretation of the whole controls the interpretation of its parts.” Syllabus point 1, State ex rel. Holbert v. Robinson, 134 W. Va. 524, 531, 59 S.E.2d 884 (1950).

    5. “Despite the fact that a third offense DUI felony conviction pursuant to West Virginia Code § 17C-5-2(j) (Supp.1995) results from an enhanced misdemeanor, the Legislature intended that this type of felony conviction be used for sentence enhancement in connection with the terms of the recidivist statute, West Virginia Code § 61-11-18 (Supp.1995).” Syllabus point 3, in part, State v. Williams, 196 W. Va. 639, 474 S.E.2d 569 (1996).

Per Curiam:

    David Appleby, (hereinafter “Mr. Appleby”), petitioner and defendant below, invokes this Court's original jurisdiction in prohibition and seeks a writ prohibiting the State from proceeding to try him as a recidivist upon his conviction for driving under the influence (hereinafter “DUI”), third offense, based upon one predicate felony of unlawful assault and two prior felony convictions of DUI, third offense. After having reviewed Mr. Appleby's petition and memorandum of law, the State's memorandum in opposition, reviewing the pertinent authorities and hearing the arguments of counsel, we deny the Writ.
    

    On October 31, 2001, Mr. Appleby admitted that he had prior DUI convictions, one on June 14, 1988, and one on September 8, 1998, such that any conviction under the DUI, third offense count, would be felonious. Mr. Appleby asserts that he made this admission for the purpose of excluding from jury consideration evidence of his prior convictions, pursuant to State v. Nichols, 208 W. Va. 432, 541 S.E.2d 310 (1999). Trial of the driving while revoked, third offense count was severed.

    On November 21, 2001, the day scheduled for trial on the DUI, third offense count, Mr. Appleby pled guilty to both counts of the indictment. He was represented by counsel at this time--as he had been since at least October 31, 2001. The Prosecuting Attorney stated to the trial court that the State and Mr. Appleby had no plea agreement and that Mr. Appleby's plea was “just a straight plea to the indictment.”   (See footnote 2)  At the plea hearing, the trial court advised Mr. Appleby that the maximum term of imprisonment for each of the offenses to which he pled guilty was one to three years, and that since the sentences could be imposed consecutively, the maximum sentence he could receive was incarceration for a term of two to six years. The trial court did not indicate that the State could initiate a recidivist proceeding. The trial court accepted the plea but, notwithstanding Mr. Appleby's waiver of the report, deferred sentencing until a presentence report could be completed.

    Thereafter, the State filed information alleging that Mr. Appleby was a recidivist in that he had three prior convictions for DUI, third offense, one unlawful assault conviction and one felony conviction for driving on a revoked license for DUI, third offense. If sentenced as a recidivist, Mr. Appleby was subject to a life sentence with the opportunity for parole.

    Mr. Appleby apparently filed a motion to dismiss the recidivist information in the circuit court. After securing new counsel, (different from the one who represented him at the November 21, 2001, plea), Mr. Appleby alleged additional grounds to dismiss the recidivist information. The trial court denied all relief. Mr. Appleby then sought an original jurisdiction prohibition from this Court.

    We conclude that the trial court did not commit clear legal error in this case. Consequently, we deny the writ.

A. The Trial Court and State Complied with West Virginia Code § 61-11-18 and West Virginia Rule of Criminal Procedure 11. Additionally, none of Mr. Appleby's Constitutional Rights Were Violated by the Trial Court's Actions.

    Mr. Appleby argues that the State's delay of three days in filing the information violated the requirements of W. Va Code § 61-11-19. He also complains that the trial court misinformed him that the maximum sentence that could be imposed was a total of two to six years, while it was actually a life sentence as a recidivist.

    Mr. Appleby specifically contends that the State's delay in filing the recidivist information from November 21 to November 24 was impermissible because it was not immediate notice in open court as required by W. Va. Code § 61-11-19.

    We said in syllabus point 1 of State v. Cain, 178 W. Va. 353, 359 S.E.2d 581 (1987) (emphasis added):

        A person convicted of a felony may not be sentenced pursuant to W. Va. Code, 61-11-18, -19 [1943], unless a recidivist information and any or all material amendments thereto as to the person's prior conviction or convictions are filed by the prosecuting attorney with the court before expiration of the term at which such person was convicted, so that such person is confronted with the facts charged in the entire information, including any or all material amendments thereto. W. Va. Code, 61-11-19 [1943].

    More recently, we said in Syllabus point 2 of State v. Cavallaro, 210 W. Va. 237, 557 S.E.2d 291 (2001) (per curiam) (emphasis added):

        “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. Housden v. Adams,

143 W. Va. 601, 103 S.E.2d 873 (1958).

    Thus, we believe the immediacy requirement is satisfied if the State files the information before sentencing and prior to the end of the term of court within which the defendant was convicted. To hold otherwise would risk a defendant being able to avoid imposition of a recidivist sentence if the State is unaware at the time of conviction of any predicate offenses. Such an inadvisable result would emasculate “[t]he primary purpose of our recidivist statutes, W. Va. Code, 61-11-18 (1943), and W. Va. Code, 61-11-19 (1943), [which] is to deter felony offenders, meaning persons who have been convicted and sentenced previously on a penitentiary offense, from committing subsequent felony offenses[,]” Syl. pt. 3, in part, State v. Jones, 187 W. Va. 600, 420 S.E.2d 736 (1996) and “to protect society from habitual criminals. . . . ” State v. Stout, 116 W. Va. 398, 402, 180 S.E.2d 443, 444 (1935).   (See footnote 4)  As we said in Syllabus point 1 of State ex rel. Holbert v. Robinson, 134 W. Va. 524, 531, 59 S.E.2d 884, 889 (1950):

    A statute is enacted as a whole with a general purpose and intent, and each part should be considered in connection with every other part to produce a harmonious whole. Words and clauses should be given a meaning which harmonizes with the subject matter and the general purpose of the statute. The general intention is the key to the whole and the interpretation of the whole controls the interpretation of its parts.

    In this case, the recidivist information was filed before sentencing and prior to the end of the term of court within which Mr. Appleby was convicted. Therefore, he has no legal basis upon which to complain.

    This does not end our inquiry. Mr. Appleby also posits that the trial court's failure to advise him that he faced a life sentence under the recidivist act violates West Virginia Rule of Criminal Procedure 11(c)(1). Rule 11(c)(1) requires, among other things, that

    [b]efore accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands,
    . . . [t]he nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law[.]

    Mr. Appleby contends that the trial court's information was erroneous and that the recidivist proceeding should be prohibited by this Court. We believe Mr. Appleby's application of Rule 11(c)(1) is flawed.

    “Guilty pleas are governed by Rule 11 of the West Virginia Rules of Criminal Procedure, which is patterned after Rule 11 of the Federal Rules of Criminal Procedure.” State v. Bennett, 179 W. Va. 464, 467, 370 S.E.2d 120, 123 (1988). In applying our Rule 11, we have looked to the advisory committee's note to federal Rule 11. State v. Evans, 203 W. Va. 446, 449, 508 S.E.2d 606, 609 (1998). See also State ex rel. Starr v. Halbritter, 183 W. Va. 350, 352 n.4, 395 S.E.2d 773, 775 n.4 (1990) (citing advisory committee's note to Federal Rule of Criminal Procedure 7(a)); State v. Bongalis, 180 W. Va. 584, 589 n.6, 378 S.E.2d 449, 454 n.6 (1989) (citing advisory committee's note to Federal Rule of Criminal Procedure 12(b)(2)); State v. Watson, 173 W. Va. 553, 558, 318 S.E.2d 603, 608 (1984) (citing advisory committee's note to Federal Rule of Criminal Procedure 26.2).

    The advisory committee note to the 1974 amendment to Federal Rule of Criminal Procedure 11 provides, in pertinent part:

        It has been suggested that it is desirable to inform a defendant of additional consequences which might follow from his plea of guilty. . . . The ABA Standards Relating to Pleas of Guilty § 1.4(c)(iii) (Approved Draft, 1968) recommend that the defendant be informed that he may be subject to additional punishment if the offense charged is one for which a different or additional punishment is authorized by reason of the defendant's previous conviction.

        Under the rule the judge is not required to inform a defendant about these matters, though a judge is free to do so if he feels a consequence of a plea of guilty in a particular case is likely to be of real significance to the defendant.

(Emphasis added).    Thus, Rule 11 does not require a trial court to advise a defendant concerning a possible recidivist enhancement    (See footnote 5)  and the trial court in this case committed no error in not so informing Mr. Appleby.

    We find further support in the recognition of the Fourth Circuit that:

        The law is clear that a valid plea of guilty requires that the defendant be made aware of all “the direct consequences of his plea.” By the same token, it is equally well settled that, before pleading, the defendant need not be advised of all collateral consequences of his plea, or, as one Court has phrased it, of all “possible ancillary or consequential results which are peculiar to the individual and which may flow from a conviction of a plea of guilty, . . . .”

Cuthrell v. Director, Patuxent Institute, 475 F.2d 1364, 1365-66 (4th Cir. 1973) (citations omitted). “The distinction between 'direct' and 'collateral' consequences of a plea, while sometimes shaded in the relevant decisions, turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant's punishment.” Id. at 1366.

    Under West Virginia Code §§ 61-11-18 & 19, the imposition of a life sentence is not “definite, immediate and largely automatic.” The State not only retains the discretion to decide when to pursue recidivist sentencing (or to decide not to so proceed), but the separate nature of the recidivist proceeding requires the State to satisfy a number of requirements, such as: (1) filing a written information, Syl. pt. 1, State ex rel. Cox v. Boles, 146 W. Va. 392, 120 S.E.2d 707 (1961); (2) proving “beyond a reasonable doubt that each penitentiary offense, including the principal penitentiary offense, was committed subsequent to each preceding conviction and sentence[,]” Syl., State v. McMannis, 161 W. Va. 437, 242 S.E.2d 571 (1978); and (3) proving beyond a reasonable doubt to the jury the identity of the defendant. W. Va. Code § 61-11-19; Syl. pt. 4, State v. Vance, 164 W. Va. 216, 262 S.E.2d 423 (1980). As then State Supreme Court Justice (and now United States Supreme Court Associate Justice) Souter explained in State v. Elliott, 574 A.2d 1378, 1380 (N.H. 1990) (citation omitted):

        The possible significance of a guilty verdict for purposes of the habitual offender act is a classic example of a conviction's consequences that is collateral in the sense that the consequence requires application of a legal provision extraneous to the definition of the criminal offense and the provisions for sentencing those convicted under it. Thus, we have consistently held that a sentencing court need not advise a defendant about the habitual offender law before accepting a guilty plea to a predicate offense under that law[.]

    The procedure used in the case below was consistent with our statutes and, thus, consistent with constitutional mandate. See Oyler v. Boles, 368 U.S. 448, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962) (affirming the constitutionality of West Virginia's recidivist statutes). In the case sub judice:

    Petitioner was fully advised of the nature of the charge; he was represented by counsel; the plea was entered freely and voluntarily, and the alleged lack of knowledge of a permissible increased penalty because petitioner was a recidivist is not sufficient to void the plea.

United States ex rel. Toland v. Phimister, 296 F. Supp. 1027, 1029 (S.D.N.Y. 1969).   (See footnote 6) 

    In short, “neither the constitution nor [Rule 11] requires that a criminal defendant be advised of the possibility of habitual criminal proceedings prior to the entry of a plea of guilty.” State v. Barton, 93 Wash. 2d 301, 305, 609 P.2d 1353, 1356 (1980) (en banc), questioned by State v. McDermond, 112 Wash. App. 239, 47 P.3d 600 (2002).   (See footnote 7)  Thus, we deny the prohibition.   (See footnote 8) 

    The Petitioner cites Apprendi v. New Jersey, 530 U.S. 466, 469, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), claiming that the facts of the prior convictions under our recidivist statute must be plead in the charging indictment and proven to a jury beyond a reasonable doubt. We reject both of these contentions.

    1. There is No Constitutional Requirement that a Recidivist Enhancement be Charged in the Indictment for the Triggering Offense. In West Virginia, recidivist proceedings are commenced by a separate information. See W. Va. Code § 61-11-19. The Petitioner contends that Apprendi requires the original indictment include notification of the State's intent to seek a recidivist enhancement.

    At issue in Apprendi was the constitutional permissibility of a New Jersey statute empowering a trial judge to enhance a sentence if the judge found by a preponderance of the evidence that the motivation for the crime was “to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.” In finding the statute unconstitutional, the Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63, 147 L. Ed. 2d at 455 (emphasis added). This ruling was consistent with the Supreme Court's earlier opinion in Almendarez- Torres v. United States, 523 U.S. 224, 247, 118 S. Ct. 1219, 1233, 140 L. Ed. 2d 350, 371 (1998), where the Court held recidivism may be treated as a sentencing factor rather than an essential element of the underlying offense.

    Apprendi expressly refused to revisit Almendarez-Torres. 530 U.S. at 489-90, 120 S. Ct. at 2362, 140 L. Ed. 2d at 454-55. While Apprendi noted tension with Almendarez-Torres, it refused to overrule that case thus carving out a narrow exception regarding recidivism. Id. at 490, 120 S. Ct at 2362, 147 L. Ed. 2d at 455. Thus, consistent with Almendarez-Torres, 523 U.S. at 243, 118 S. Ct. at 1231, 140 L. Ed. 2d at 368,

    a State need not allege a defendant's prior conviction in the indictment or information that alleges the elements of an underlying crime, even though the conviction was “necessary to bring the case within the statute.” Graham v. West Virginia, 224 U.S. 616, 624, 32 S. Ct. 583, 585-86, 56 L. Ed. 917 (1912).

    2. There is No Federal Constitutional Requirement of Proof Beyond a Reasonable Doubt to a Jury of the Fact of Predicate Convictions. Mr. Appleby also appears to contend that consistent with his view (a view we have rejected, see supra Part III.B.1) that not only must the recidivist charge be included in the original indictment charging the triggering offense, the fact of the predicate felonies must be proven to the jury beyond a reasonable doubt. However, Apprendi has not overruled Almendarez-Torres and we “apply Supreme Court precedent as it stands, and that precedent does not require that either the existence or substance of [the defendant's] earlier convictions be submitted to a jury and proven beyond a reasonable doubt.” United States v. Peltier, 276 F.3d 1003, 1006 (8th Cir.), cert. denied, ___ U.S. ___, 123 S. Ct. 246, ___ L. Ed. 2d ___ (2002) .

    Indeed, Apprendi itself recognized a compelling rationale for treating prior convictions differently from elements of a present offense. The prior convictions have already been proven to a jury beyond a reasonable doubt (or such requirements have been waived by the defendant). See Apprendi, 530 U.S. at 496, 120 S. Ct. at 2366, 147 L. Ed. 2d at 458-59 (“[T]here is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof.”). The United States Supreme Court applied similar rationale in two cases post-dating Apprendi, and concluded that, with the exception of denial of counsel claims, petitioners seeking post-conviction relief cannot challenge the validity of any predicate felonies. See, e.g., Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 403-04, 121 S. Ct. 1567, 1574, 149 L. Ed. 2d 608, 618 (2001) (citations omitted) (“[O]nce a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), the conviction may be regarded as conclusively valid. If that conviction is later used to enhance a criminal sentence, the defendant generally may not challenge the enhanced sentence through a petition under [28 U.S.C.] § 2254 on the ground that the prior conviction was unconstitutionally obtained.”); Daniel v. United States, 532 U.S. 374, 382, 121 S. Ct. 1578, 1587, 149 L. Ed. 2d 590, 600 (2001) (similar-prior enhancement convictions may not be contested under federal motion to vacate sentence, 28 U.S.C. § 2255).

        Defendant also contends that his previous convictions for driving under the influence were not probative on the knowledge element of implied malice, because the convictions showed only that he knew such driving was unlawful, but not that he knew it was dangerous. However, the reason that driving under the influence is unlawful is because it is dangerous, and to ignore that basic proposition, particularly in the context of an offense for which the punishment for repeat offenders is more severe . . ., is to make a mockery of the legal system as well as the deaths of thousands each year who are innocent victims of drunken drivers.