Mirandy v. Smith

237 W.Va. 363

787 S.E.2d 634

Patrick Mirandy, Warden, St. Mary's Correctional Center, Respondent Below, Petitioner

v.Gregg D. Smith, Petitioner Below, Respondent

No. 14–1255

Supreme Court of Appeals of West Virginia.

Submitted: January 12, 2016

Filed: June 8, 2016

Patrick Morrisey, Esq., Attorney General, Derek A. Knopp, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for the Petitioner

Matthew T. Yanni, Esq., Yanni Law Firm, Martinsburg, West Virginia, Counsel for the Respondent

Benjamin, Justice:

In a December 19, 2014, order, the Circuit Court of Ritchie County dismissed respondent Gregg D. Smith's conviction for malicious assault involving a firearm, determining that his convictions for both malicious assault involving a firearm and wanton endangerment involving a firearm offended double jeopardy principles. The petitioner Patrick Mirandy, Warden of St. Mary's Correctional Center (“the State”)¹ appeals, arguing that Gregg Smith's convictions for both crimes are constitutional. Upon our review, we conclude that double jeopardy principles have not been violated. Accordingly, we reverse the circuit court's order and remand this case for further proceedings consistent with this Opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Gregg Smith's convictions arose from his involvement in a physical altercation with Thomas Smith on September 7, 2007. During the fight, Gregg Smith attacked Thomas Smith with a hammer, and then following a struggle over a loaded shotgun, Gregg Smith discharged the shotgun into Thomas Smith's leg. T.L.P.C.,² Thomas Smith's minor son, was present during the altercation.

Gregg Smith was subsequently indicted on one count of malicious assault of Thomas Smith involving a hammer, one count of malicious assault of Thomas Smith involving a firearm, one count of wanton endangerment of T.L.P.C. involving a firearm, and one count of attempted murder of Thomas Smith. See W. Va. Code § 61–2–9(a) (2004) (malicious assault); W. Va. Code § 61–7–12 (1994) (wanton endangerment involving a firearm); W. Va. Code § 61–11–8 (attempt); W. Va. Code § 61–2–1 (1991) (2002) (murder). On September 5, 2008, Gregg Smith was convicted by a jury on all four counts. He was sentenced to a term of imprisonment of two to ten years for each of his malicious assault convictions, a definite term of five years for his conviction of wanton endangerment involving a firearm, and three to fifteen years for his conviction of attempted first degree murder.

After failing to obtain relief in his direct appeal to this Court, Gregg Smith filed a petition for writ of habeas corpus in the Circuit Court of Ritchie County on November 28, 2011. In his petition, filed on his behalf by appointed counsel, he claimed he was entitled to relief on four grounds, one of which alleged a violation of his due process rights, and three of which alleged he received ineffective assistance of counsel. A multi-day evidentiary hearing was held, after which Gregg Smith filed a memorandum of law in support of his habeas petition. In addition to addressing the four grounds raised in the petition, the memorandum of law also alleged that Gregg Smith's conviction and sentence for both the malicious assault of Thomas Smith using a firearm and the wanton endangerment of T.L.P.C. involving a firearm placed Gregg Smith in double jeopardy. Prior to filing the memorandum of law, Gregg Smith did not mention the double jeopardy issue in any habeas filings. Similarly, the double jeopardy issue was not raised by his trial counsel, nor his sentencing and appellate counsel.

On November 7, 2013, the circuit court entered an order rejecting Gregg Smith's claims that he was denied due process of law or effective assistance of counsel; however, the circuit court granted his requested relief in habeas corpus on the ground that his double jeopardy rights had been violated. The court reasoned that

because all evidence before this [c]ourt is that the firing of the shotgun that injured Thomas F. Smith was a single volitive act and because the State of West Virginia has not borne its burden to show otherwise, this Court finds that convicting [Gregg Smith] of Malicious Assault and Wanton Endangerment Involving a Firearm is a violation of [his] constitutional rights under the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and under the Double Jeopardy Clause in Article III, Section 5 of the West Virginia Constitution.

(emphasis omitted). Essentially, the circuit court concluded that the conviction of wanton endangerment involving a firearm was a lesser included offense of the malicious assault using a firearm conviction. To cure the perceived double jeopardy violation, the court permitted Gregg Smith to choose one of the two offending convictions and its corresponding sentence to be dismissed. He chose to have his conviction and sentence for malicious assault with a firearm dismissed.

The State filed an objection to the circuit court's order granting habeas corpus relief, asserting that Gregg Smith had never raised the double jeopardy argument at any point before the evidentiary hearing. The State requested that the court reconsider its order and hold it in abeyance to allow the State to present evidence with regard to Respondent's argument on double jeopardy. The court held another hearing to address the State's objections. Exactly one year after it entered an order granting Gregg Smith relief in habeas corpus, the circuit court entered a final order on November 7, 2013, reaffirming its grant of habeas corpus relief. On December 19, 2014, the circuit court entered an order dismissing his conviction and sentence for malicious assault involving a firearm. The State now appeals the December 19, 2014, order.

II. STANDARD OF REVIEW

In this appeal, we are asked to determine whether Gregg Smith's conviction and sentence for both the malicious assault of Thomas Smith using a firearm and the wanton endangerment of T.L.P.C. involving a firearm offend double jeopardy principles. Our review of double jeopardy claims is de novo. Syl. pt. 1, State v. McGilton , 229 W.Va. 554, 557, 729 S.E.2d 876, 879 (2012) (“ ‘[A] double jeopardy claim [is] reviewed de novo.’ Syllabus Point 1, in part, State v. Sears , 196 W.Va. 71, 468 S.E.2d 324 (1996).” (alterations in original)). Specifically regarding the review of habeas corpus actions, we have held:

In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three-prong standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standard; and questions of law are subject to a de novo review.

Syl. pt. 1, Mathena v. Haines , 219 W.Va. 417, 633 S.E.2d 771 (2006).

III. ANALYSIS

In its sole assignment of error, the State argues that the circuit court erred in determining that the double jeopardy clauses in our state and federal constitutions prohibit Gregg Smith's convictions and sentences for malicious assault of Thomas Smith using a firearm and wanton endangerment of T.L.P.C. involving a firearm. The State contends that because each crime contained an element of proof the other did not—a different victim—the convictions and sentences for those crimes pass constitutional muster under well-settled state and federal law. Gregg Smith disagrees, arguing that wanton endangerment involving a firearm is a lesser included offense of malicious assault when predicated on a single act, such as the single gunshot in this case.

The Legislature has “substantive power to define crimes and prescribe punishments.” Syl. pt. 3, in part, State v. Sears , 196 W.Va. 71, 468 S.E.2d 324 (1996). This power, though, has its limits; the double jeopardy clauses in both the state and federal constitutions ³ “provide [ ] immunity from further prosecution where a court having jurisdiction has acquitted the accused[,] ... protect[ ] against a second prosecution for the same offense after conviction[, and] ... prohibit[ ] multiple punishments for the same offense.” Syl. pt. 1, Conner v. Griffith , 160 W.Va. 680, 238 S.E.2d 529 (1977) ; accord syl. pt. 5, State v. Johnson , 197 W.Va. 575, 476 S.E.2d 522 (1996) ; syl. pt. 7, State v. Broughton , 196 W.Va. 281, 470 S.E.2d 413 (1996) ; syl. pt. 2, State v. Gill , 187 W.Va. 136, 416 S.E.2d 253 (1992). In this case, we are asked to determine whether Gregg Smith has received multiple punishments for the same offense in violation of double jeopardy principles.

We have observed that

[t]he double jeopardy prohibition against multiple punishments is usually encountered in two types of cases. The first is where the defendant is charged with committing both a lesser included offense and the greater offense.... The second type of case involves instances where there has been an ongoing criminal scheme such as embezzlement and there is a question of whether such activity constitutes one crime or several separate crimes.⁴

State v. Myers , 171 W.Va. 277, 280, 298 S.E.2d 813, 816 (1982) (footnote added). The case at bar fits squarely within the first type, because it involves one act constituting a violation of two separate statutes , one of which the circuit court determined constituted a lesser included offense set forth in the other. The case does not fall within the second type, which deals with cases in which a defendant is prosecuted for multiple offenses of the same statute related to an ongoing criminal scheme.

“Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.” Syl. pt. 8, State v. Zaccagnini , 172 W.Va. 491, 308 S.E.2d 131 (1983) ; accord Blockburger v. United States , 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). This test, the Blockbur...