State v. Palmer

The hall- of domestic relations matters. area roles, they assisting termed

mark of such referees,

masters, commissioners judi- assuming the have no persons roles order, binding power to a final and

cial enter for indirect as an of incarceration order

contempt.9 herein,

For reasons stated we answer reformulated, in question, as certified

negative. question answered.

Certified Virginia, Plaintiff

STATE West

Below, Appellee, PALMER, R. Defendant

Herman

Below, Appellant.

No. 29636.

Supreme Appeals of Court of Virginia.

West 3,Oct. 2001.

Submitted Dec. 2001.

Decided

Dissenting Opinion of Justice 12, 2001.

Davis Dec. modify Virgi- permitting judge provisions the circuit or vacate We take notice of the West 49-5A-1, 2001), seq. (Repl. time. We view the refusal of et Vol. such orders at nia Code bail, juveniles permitting juvenile or admission to with the unlimited referees to order judge, custody right immediate of review a circuit or under lawful arrest to be ad- lawful fundamentally custody power different to im- held in to await from mitted to bail or to be punishment pose for indirect hearings, provisions Vir- of incarceration and the of West further ginia 2001), contempts. (Repl. Vol. Code 49-5A-4

PER CURIAM. Palmer,

Herman R. defendant below and herein, appellant appeals the November order of the Circuit Court of County that reconsideration of denied his pursu- motion for of correction sentence filed 35(a). P. ant to W. Va. R.Crim. Palmer was convicted and for sentenced third-of- suspended driving fense or while revoked for influence, driving under W. Va.Code sought post-trial and his 35(a) challenge Rule motion to respect of the to such of- motion, fense. The circuit court denied the concluding that the instrument was untimely sufficient standard for under the challenges to indictments set forth in Miller, 476 S.E.2d 535 reverse, concluding nowWe that the indict- merely alleged prior ment in this case convic- driving tions for with a revoked license— implied any express without or reference to having predicated upon convictions DUI-related revocations —and therefore did not state the elements of essential the of- for fense which Palmer was convicted and sentenced.

I.

BACKGROUND February was indicted 2000 in July connection with a 1998 incident allegedly where drove automobile through an and struck intersection another ear stopped light. that was at a traffic Palm- er’s driver’s had licence been revoked for (“DUI”) driving under influence since 1992, and apparently he had twice before driving been convicted of or single-count revoked for DUI. The indict- following charge: ment contained the That Herman R. Palmer on or about the July, day County -[sic] of said Berkeley Virginia, of of and the State West unlawfully feloniously did drive and Quasebarth, Christopher C. Assistant vehicle, operate a to-wit: motor blue Prosecuting Attorney, Martinsburg, West Shadow, Dodge color 1992 bearing West Virginia, Attorney Appellee. Virginia Registration upon public 9C Robertson, Christopher Esq., highways County K. Jackson of said Kelly, & Martinsburg, Virginia, West Attor- time when his driver’s license ney Appellant. operate had motor vehicle been lawful- ly driving under the influence him with misdemeanor first-offense alcohol, the said Herman R. Palmer having previously been convicted in the DUÍ.3 Magistrate Berkeley County, Court The circuit court denied Palmer’s motion Virginia, day

West on the 27th of Decem- sentence, reasoning correct August in its ber, suspended/re- 1995 of on a 2000 order that under State v. license, subsequently being voked con- (1996), the indict- Magistrate victed ment should be construed in favor validity County, Virginia, day West on the 2nd based timely the defendant’s failure to December, 1997, suspend- on a sufficiency. its The circuit court license, in Chapter violation of ed/revoked went in its state order that 17B, Article Section of the Code amended, Virginia, against West particular indictment is sufficient be- peace dignity and of the State. (1) cause it: states the elements of the charged; put the defendant was subsequently Palmer was convicted of felo- charge on fair of against notice him ny third-offense and in fact defended on himself those following jury DUI trial held charges; and 11, [defendant’s April on convic- 2000. challenge Palmer did not tion as prevents it stands him sufficiency being from regard of the indictment with placed in trial; jeopardy. addition, double to this In offense either before or at did object not by the dates of the two on ... presented suspend- evidence DUI the State indicating charges that he had put twice before been con- were into the in- ed/revoked DUI; victed while revoked for and dictment and pre- substantial evidence was object jury being did not to the instructed on sented at trial priors that these two were the elements of the third-offense suspended/revoked on ... 17B-4-3(b) crime set forth in W. Va.Code charges.... (1994).1 A motion for a new trial pursu- filed subsequent A motion for reconsideration was 33,

ant to W. Va. R.Crim. P. which was later denied, appeal likewise and this followed. court, similarly denied the circuit failed to allege any resulting error from deficiencies II. in the indictment. subsequently Palmer was on sentenced STANDARD OF REVIEW 6, years June 2000 to imprison- one-to-three Palmer’s motion for correction $5,000 ment and fined pun- maximum —the pursuant Virgi sentence was made to West 17B-4-3(b). permitted ishment under 35(a). nia Rule of Criminal Procedure This subsequently appointed obtained proper Court indicated the standard of re purposes filing appeal.2 counsel an rulings sylla view for on Rule 35 motions in thereafter, 23, Shortly 2000, August on coun- Head, point bus v. one State subject sel filed the motion to correct sen- (1996):

tence, asserting for the first time that the reviewing findings support indictment was insufficient to of fact and sen- tencing on the conclusions third-offense conviction of law of a circuit court con- cerning because nowhere the indictment was it an order on a motion made under alleged previous Virginia Palmer’s convictions in- Rule 35 of the West Rules relating Procedure, volved revocations apply DUI. Accord- Criminal we a three- Palmer, ing to pronged the indictment at best standard of review. We review following posited The statute was amended sup- the com- 3.Palmer also that the indictment subject ported mission of the see W. Va. of misdemeanor third-offense 1999 Sess., Reg. although Acts. or revoked as defined ch. none of the 17B-4-3(a), W. any Va.Code which crime has the bearing upon analysis alterations have our punishment same aas first-offense conviction this case. (b) arising under subsection of the statute. apparently 2. Palmer’s trial counsel had challenged been re- Palmer has not otherwise the indict- expense. tained at grounds duplicity. the defendant's own ment on 376 because, among things, it other referenced Rule 35 motion under

the decision standard; judgment by both date of the un- offenses an of discretion abuse place conviction. clearly derlying facts are under reviewed standard; questions of law erroneous matter, an initial As and rules interpretations of statutes analysis that our agrees with the State subject to a de novo review. are guided by the statement this case must be Duke, v. also State W.Va. See syllabus point of Miller: one (1997). 738, 744 Because the lower S.E.2d 12(b)(2) Virginia Rule of the West Rules ruling motion to sen- court’s on the correct requires that a de- of Criminal Procedure exclusively legal upon the issue tence turned objection to an must raise fendant underlying indictment stated of whether the Although to trial. a chal- convicted, which Palmer was the offense for lenge to a is never defective indictment syl. pt. plenary review. See we undertake waived, literally will this Court construe part, W.Va. State validity in favor of where a (1996) (“Generally, timely its suffi- fails defendant novo.”); de see of an indictment is reviewed objection, ciency. the indictment Without Wallace, 205 syl. pt. also upheld unless it is so defective should (1999); syl. pt. not, by any con- does reasonable Bull, struction, charge an offense under West

III. Virginia for which defendant law or the was convicted. DISCUSSION 6, Bull, syl. pt. v. 204 W.Va. See also State argues that indictment the 3, 255, (1998); syl. pt. 512 S.E.2d 177 State charge him in was insufficient to this case Watkins, Thompson v. 200 ex rel. W.Va. ultimately for which he was with the crime (1997) curiam).4 (per 488 S.E.2d 894 The because, alia, it to inter failed prevent purpose this rule is to behind properly allege status elements his two “sandbagging” criminal defendant from prior convictions objection deliberately foregoing raising an to by counters or revoked for DUI. The State may an so that the issue later be indictment untimely asserting was that because Palmer obtaining a trial as a means of new used objecting in to the indictment or otherwise Wayne following conviction. 4 R. La- See steps jury’s limit taking to the consideration al., 19.1(d), Procedure at Fave et Criminal issue, felony third-offense the Court the (2d ed.1999). 741 The we announced in rule lib must the indictment under the examine extremely stratagem this Miller now makes in construction standard announced eral perilous. Miller, 476 v. 197 W.Va. State State, by According to the in As is made clear W. Va. R.Crim. the 12(b)(2),5 P. to an indictment was sufficient under this standard dictment timely practical, objection in ment is measured common sense 4. Where an to an indictment is made, exacting basic apply terms whether it meets these constitu- we the more standard for requirements. particular determining sufficiency 'No form of re- tional of an indictment long required ... the accused is cently words is in State v. stated charge (1999): adequately informed of the nature of the 517 S.E.2d 20 " alleged.’ and the elements of the offense are Wallace, III, under Article An indictment is sufficient W.Va. at S.E.2d at 26 Virginia § 14 of the West Constitution and W. (citations omitted). (1) 7(c)(1) the ele- Va. R.Crim. P. if it states charged; puts a defen- ments of states, 12(b)(2) 5. Rule charge against which dant on fair notice of defend; defense, (b) Any objection enables a Pretrial Motions. he or she must capable acquittal request an or conviction which is of determination defendant to assert may general prevent being placed jeop- in be in to twice without the trial of issue order may ardy. trial motion.' Motions raised before rigorous judge. Syl. at the discretion of the pt. this more written or oral id. Even under standard, prior following to trial: must be raised of a criminal indict- "[t]he LaPave, 19.3(e), supra, § possible mo- conviction.” at at the earliest must be made Thus, that Palm- charges it is conceivable an ment. And while whether er, in alleged of the deficiencies is valid because therefore under the indictment, prior to trial that was not aware standard set forth is determined attempting charge to him with was the State solely by whether meets the essential ele- DUI, third-offense while revoked requirement. Id. ments clearly put on notice as was nevertheless ease, prior In Palmer asserts his prosecution intro- such intention when the to 17B-4-3(b) convictions under W. Va.Code prior of his convictions and duced evidence felony are status elements of the third-of- sought an instruction on the elements of the convicted, fense crime for which he was charge. Palmer should third-offense that the failure of the indictment to reason- scope sought to limit the therefore have ably allege precluded these elements a lawful by making indictment at trial the neces- charge. conviction on such objections, sary and his to do so failure re- liberally quires that this Court now construe recently This Court indicated favor of the of- convictions for while re for which he was convicted. fense are, fact, status voked elements third-offense crime defined W. The failure of an indictment to 17B-4-3(b).6 Dews, Va.Code State adequately state the essential elements of a (2001), criminal is a fundamental defect that Nichols, the reach of Court extended syl. may pt. time. be raised See (1999) (defen Boles, ex rel. Combs proceeding dant recidivist DUI entitled (1966) (“In lawfully order stipulate and avoid offenses them particular charge an accused with a crime it jury through pro bifurcated disclosure imperative the essential elements of ceeding), holding that a defendant indictment.”); alleged in the crime be 17B-4-3(b) violating § with W. Va.Code is at 160- see also State stipulate to to the status elements of entitled 25-26; Knight, 517 S.E.2d offense, proceedings and to bifurcate 615, 620-21, 285 S.E.2d necessary disclosing to avoid the defendant’s observed, As commentator has one jury. Implicit in our prior convictions to the apply concepts to the refusal courts recognition holding in Dews was a that a challenges “ap to such waiver and forfeiture prior driving for while conviction pears in function of to lie the non-notice the or revoked for DUI is a status element the requirement, special with essential elements 17B-4-3(b), § in concept pleading recidivist offenses contained emphasis on the that the given judgment that is self-evident the formal basis of the a conclusion serve the content, is, alcohol for the first of- of blood fense, and, guilty upon con- objections of a misdemeanor Defenses and based on defects thereof, jail (other be confined in for six viction shall in the indictment or information than mandatory jail in addition to the months and sentence, jurisdiction in the court or that it fails to show fined not than one hun- shall be less objections to an offense which shall be than five hundred dol- dred dollars nor more lars; any during noticed the court at time the person second is for the pendency proceedings); .... of the and, upon guilty thereof, conviction of a misdemeanor jail period confined in for a mandatory jail shall be states, 17B-4-3(b) (1999) § with- 6. W. Va.Code and, year to the one sentence, addition change from the statute under out material fined not less than one thou- shall be convicted, which Palmer was as follows: thousand dollars nor more than three sand (b) Any person vehicle dollars; who drives a motor any subsequent offense, or the third for highway and, public a time on of this state at guilty upon person of a thereof, been imprisoned when his or her lawfully to do so has in the conviction penitentiary shall driving year the influ- under nor for not less than one alcohol, and, years or other ence of drugs, controlled substances in addition to more than three mandatory prison sentence, having driving while an alcoholic shall be fined not or for nor more than in his or her blood of ten hun- than three thousand dollars concentration less more, by weight, percent or five thousand dollars. dredths of one added.) secondary (Emphasis refusing to take a chemical test similarity require predicat- and textual between that that a structural license rescission be penal laws that we have statute and those ed a DUI violation. previously made clear create status element previously This Court stated that indict- given they Consequently, are offenses.7 applicable ment’s reference to the statute essential elements of the recidivist crimes set “ ‘necessarily [implicit] with it carries all the forth in indictments elements of the offense under that must make to such these offenses reference ” section,’ 327, 341, Young, State v. prior convictions. (quoting State v. Turning analysis to an of the text of Nester, 542 n. question, the indictment is sim (1985)) (alteration Young) 189 n. 1 ply alleged prior to that it unable conclude (footnote omitted); see also United States v. driving suspended convictions for or revoked (1st Forbes, Cir.1994) 16 F.3d validly charge so as to (“While citation, alone, statutory standing the offense for which was convicted. While setting cannot substitute for forth the ele- previ the indictment to makes reference two crime, may of a it ments reinforce other convictions, they ous are described terms references the indictment so as to render “having previously of the defendant valid.”) (citation omitted). case, In this suspended/re ... of however, the indictment references 17B^4-

voked license.” There is no reference what entirety, 3 in its and thus we are unable previous fact that convic soever these any guidance specific derive as to the pertained suspension tions to a DUI-related charged because the statute delineates a or revocation. separate number crimes.

Nor able to find are we these essential points out that the indictment uses the term by implication. status elements Nowhere is “feloniously,” argues and on such basis expressly language stating there since 17B-4-3 contains one of- being charged with defendant is third-offense fense, the can be construed to DUI, suspended or exclusively refer third-offense reasonably from which one could infer revoked for DUI. oth- the referenced convictions were DUI-related. words, suggests er the State that on this any precise And the omission of reference to basis we can read the indictment’s reference 17B-4-3(b) §of violations is likewise impliedly two alleging offenses as allegation not cured that the current necessary status elements the third- predicated upon offense is the defendant hav- offense crime. While this construction is not ing had “his or driver’s license to logic, simply without a trace of it too operate lawfully a motor ... vehicle upon reasonably slender a reed which to alcohol,” driving under the influence of conclude, forgiving even under Miller’s stan- since there is no reasonable basis which dard, that the indictment presume that the status of li- Palmer’s with the offense for which he was underlying cense at the time of the 1998 convicted. offense was the same as when he committed Thus, Moreover, we conclude that the

the indictment offenses. as worded the satisfy this case failed to minimum satisfactorily indictment could the crite- be read as describing ria for the essential an elements of offense under W. Va.Code 17B-4-3(a), § by which the separate sets forth mis- third-offense crime defined W. demeanor offenses for second- and third-of- Va.Code and court the lower driving failing grant fense while one’s has therefore erred in license Palmer’s revoked, suspended or as motion to the recidivist of- correct sentence under W. Va. (a) 35(a). fenses set forth subsection not do R.Crim. P. Nichols, offense,” statute,

7. See State v. 208 W.Va. at 442 n. element from habitual offender (distinguishing 541 S.E.2d at 320 n. 18 (1943), recidivist W. Va.Code 61-11-19 which was de- " statute, (k) § 17C-5-2(j) W. Va.Code & statute”). an scribed as 'enhancement' " (1996), which the Court indicated was a 'status’ required

IV. form of ... long words is the accused is adequately informed of the nature CONCLUSION charge the of and the elements of the offense stated, ruling For the reasons the the Hall, alleged.” are State 172 W.Va. County Circuit on Palm- 143-44, (1983). Finally, er’s motion for correction of sentence is presumed “[a]n indictment drafted is suffi- reversed, and this case is remanded if it statutory language, cient tracks the cites purposes resentencing defendant the charged, the elements of the offense and punishment accord with the first-of- details, provides the other essential such as fense or revoked time, place, involved, persons provide for DUI as set forth in W. Va.Code adequate to the notice defendant.” State v. 17B-4-3(b).8 Miller, 588, 600, Reversed and remanded with directions. (1996). majority For opinion the to find the indict- DAVIS, Justice, dissenting. insufficient, fatally perti- ment it had to take 2001) (Filed Dee. language nent the out indictment of con- majority opinion The Mr. reversed Palm- analyze language text and in isolation. er’s conviction sentence for third-offense so, doing majority In opinion concluded while his license was did apprise indictment not Mr. under the influence. The prior driving Palmer of basis of the two majority concludes that the indictment was majority’s offenses. I find the method of fatally flawed because it failed articulate but, analysis illogical; to not further that Mr. Palmer’s convictions involved analysis may of such use result DUI-related I the in- revocations. believe every invalidation of indictment issued dictment in this case was sufficient. There- grand jury. proper analysis for an in- The fore, the conviction and sentence should not dictment is to at it look as a whole. An have been disturbed. For the reasons set fatal, indictment is “not from where below, forth respectfully I dissent. meaning whole thereof clear to is made A. The Indictment Was Sufficient person ordinary Syl. pt. intelligence.” alleged Mr. Palmer the indictment Ruble, 193 S.E. 567

against not apprise him did him of the (1937). for which was sentenced. case was sufficient Cleekley clearly Justice enunciated “the require so as not to Mr. Palmer to even file of an indictment is determined particulars.1 analysis making my bill of practical than technical rather consider- case, in this I do so 588, 599, ations.” understanding that an “[assessment S.E.2d See State v. sufficiency of an facial indictment is limited 155, 161, ” 2, (1999) (“The Syl. part, its ‘four in pt. corners[.]’ to 26 criminal in- of a 155, v. practical, dictment is common 205 W.Va. 517 S.E.2d measured terms[.]”). (1999). Moreover, particular sense 20 “[n]o sought ficity

8. regard The Court that Palmer not to I ly majority from the decision. am dissent reasonably Syl. pt. Loy, particularity viction with such as to

2. See (“An alleging S.E.2d 826 indicate offense, nature and character of former augmenting purpose the court wherein the conviction was conviction sufficient, person imposed, had and identifies the the sentence to conviction, indicted.”). person subsequently if it avers the former con- notes has to with details in an indictment are underlying have his conviction vacated on the upon proper discoverable a motion for a bill of indictment, basis of the defective instead but has recognized particulars.”). long We have that resulting chosen to sentence. particulars purpose "[a] bill of is for the of fur- We therefore confine our directions mand to the relief re- nishing or details omitted from accusation sought. indictment, entitled to which the defendant is Counts, 338, 342, before v. trial.” State 90 W.Va. 1. To the extent that an indictment omits nonfatal 812, (1922). Zain, 110 S.E. 814 See also State information, may a defendant seek informa- 66, 54, 748, (1999); 760 7(f) by filing particulars tion bill of Rule a under Meadows, 247, 254, State v. 172 304 Virginia W.Va. of the West Rules Proce- of Criminal Meadows, 247, 254, (1983). dure. See State S.E.2d 838 (1983) ("[A]ny speci- 304 838 lack of S.E.2d 380 MAYNARD un- authorized that Justice language of the statute state pertinent The indicted, joins dissenting opinion. Va. in this Palmer W. me which Mr. was der states: Code a motor Any person who vehicle chives highway this state a public on his or her do has time when lawfully driving under for been ... is ... for of alcohol the influence ... any subsequent guilty offense third felony[.]” aof S.E.2d statute, at language this a Under In re KENNA HOMES COOPERATIVE (1) minimum, allege must indictment CORPORATION. (2) (3) driving, person, license his/her revoked, DUI, on two more was No. 29644. previous occasions. Supreme Appeals of reading the “four corners” of the indict- Virginia. West case, provides it that Mr. Palm- ment driving a being charged motor er was 23, 2001. Submitted Oct. privilege or driv- “at a time when his vehicle operate a motor vehicle had license er’s Decided Dec. lawfully driving under indictment then alcohol[.]” influence of The dates and courts where the two sets out the prior DUI convictions occurred.2 Our cases made clear “[a]n have if, statutory is offense sufficient substantially follows the lan- statute, fully guage of the informs the ac- particular with which cused of the he the court deter- is enables mine the statute which the Hall, Syl. pt. W.Va. based.” State v. (1983). Syl. pt. also See Zain, Bull, (1999); Syl. pt. State v. majority opinion contends previ- not indictment does “that these state pertained convictions to DUI-related ous However, suspension or revocation.” context, language proper placing the its does, fact, apprise Mr. being charged was with driv- ing his license was revoked DUI on County. previous two occasions in herein, respectful- I For the reasons stated

Case Details

Case Name: State v. Palmer

Court Name: West Virginia Supreme Court

Date Published: Dec 12, 2001

Citation: 557 S.E.2d 779

Docket Number: 29636

Court Abbreviation: W. Va.