SER Ralph A. Lorenzetti, Jr., Pros. Attorney v. Hon. David H. Sanders, Judge
235 W. Va. 353
| W. Va. | 2015Background
- Elizabeth A. “Libby” Shanton, former Dean of Student Affairs at Shepherd University, was indicted on 54 counts: Count 1 charged a fraudulent scheme under W. Va. Code § 61-3-24d; Counts 2–54 charged 53 separate alleged unauthorized/fraudulent uses of a state purchasing card under W. Va. Code § 12-3-10b (1996).
- The circuit court dismissed Counts 2–54, reasoning (1) the P-Card swipes were part of a single continuing offense (so counts must be collapsed into one), and (2) the § 12-3-10b counts overlapped completely with Count 1 such that charging both violated double jeopardy.
- The State sought a writ of prohibition in the West Virginia Supreme Court to prohibit enforcement of the dismissal, arguing the circuit court exceeded its powers and deprived the State of its right to prosecute.
- The Supreme Court reviewed statutory text, grammar (transitive verb/object), legislative materials (including a later 2014 amendment and its preamble), and precedent addressing unit of prosecution and Blockburger/ Gill analysis.
- The Court concluded § 12-3-10b (1996) unambiguously treats each unlawful “purchase” (singular object) as a separate offense; convictions under § 12-3-10b and § 61-3-24d may both be charged for the same act when each statute requires proof of an element the other does not.
- The Court granted the writ, vacated the circuit court’s order dismissing Counts 2–54, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Shanton) | Held |
|---|---|---|---|
| Whether each unlawful P-Card "use" under § 12-3-10b is a separate offense (unit of prosecution/continuing-offense question) | "Use" means each discrete purchase/swipe; statute’s grammar supports separate offenses | The statute can be read as a continuing offense covering overall pattern of use; preamble/legislative intent supports collapsing counts | Held: Plain language unambiguous—"use" with singular object "purchase" denotes discrete offenses; circuit court erred by collapsing counts |
| Whether charging both § 12-3-10b and § 61-3-24d for the same conduct violates double jeopardy (Blockburger/Gill analysis) | Both statutes have distinct elements; Blockburger test permits charging both | Circuit court: elements overlap; double jeopardy prohibits charging both | Held: Each statute requires proof the other does not; charging both does not violate double jeopardy; dismissal of § 12-3-10b counts was error |
| Whether the State may obtain prohibition rather than appeal (availability of other remedy) | Prohibition is appropriate because dismissal was not for indictment insufficiency and appeal under § 58-5-30 is unavailable | Shanton: State could appeal under § 58-5-30 because counts were dismissed as bad/insufficient | Held: Dismissal was not for insufficiency; prohibition appropriate; Hoover factors overall support writ |
| Whether the indictment counts 2–54 were sufficient (specificity/notice/multiplicity) | Indictment sufficiently tracks statutory language and specifies dates/amounts for each discrete alleged unlawful purchase | Shanton argued counts were multiplicitous/insufficient | Held: Counts adequate—state tracks statute and gives fair notice; sufficiency challenge rejected |
Key Cases Cited
- State v. Green, 207 W.Va. 530 (2000) (singular object in statute controlled unit-of-prosecution analysis; each utterance/writing is a separate offense)
- State ex rel. Porter v. Recht, 211 W.Va. 396 (2002) (distinguishes intransitive vs. transitive verbs; gravamen of false-swearing is the act of swearing to an affidavit)
- State v. McGilton, 229 W.Va. 554 (2012) (multiple acts during one course of conduct can support multiple convictions where separate intents/acts are shown)
- Blockburger v. United States, 284 U.S. 299 (1932) (test for whether two statutory offenses are the same for double jeopardy purposes—each must require proof of an element the other does not)
- State v. Gill, 187 W.Va. 136 (1992) (unit-of-prosecution inquiry focuses on legislative intent and statutory text)
- Conner v. Griffith, 160 W.Va. 680 (1977) (double jeopardy prohibits multiple punishments for the same offense)