IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2015 Term FILED
May 20, 2015
_______________ released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
No. 14-0904
_______________
STATE OF WEST VIRGINIA EX REL. RALPH A. LORENZETTI, JR.,
PROSECUTING ATTORNEY OF JEFFERSON COUNTY,
Petitioner
v.
THE HONORABLE DAVID H. SANDERS,
JUDGE OF THE CIRCUIT COURT OF JEFFERSON COUNTY,
AND ELIZABETH A. SHANTON,
Respondents
____________________________________________________________
ORIGINAL PROCEEDING IN PROHIBITION
WRIT GRANTED
____________________________________________________________
Submitted: March 4, 2015
Filed: May 20, 2015
Shawn R. McDermott, Esq.
Brandon C.H. Sims, Esq. Mills McDermott, PLLC
Assistant Prosecuting Attorney Martinsburg, West Virginia
of Jefferson County Counsel for the Respondent
Charles Town, West Virginia
Counsel for the Petitioner
Lisa A. Hopkins, Esq.
General Counsel
Dawn E. Warfield, Esq.
Associate General Counsel
Vincent J. Smith, Esq.
Associate General Counsel
Amicus Curiae – Glen B. Gainer III,
West Virginia State Auditor
JUSTICE BENJAMIN delivered the Opinion of the Court.
CHIEF JUSTICE WORKMAN and JUSTICE LOUGHRY concur and reserve the right
to file separate opinions.
SYLLABUS BY THE COURT
1. Pursuant to the plain language of W. Va. Code § 12-3-10b (1996),
each purchase of goods or services made using a state purchasing card in a manner
contrary to the provisions of W. Va. Code § 12-3-10a (2007) or the rules promulgated
pursuant to that section involves a distinct offense.
2. W. Va. Code § 12-3-10b (1996) and W. Va. Code § 61-3-24d (1995)
each contain elements the other does not, and punishment under these two statutes for
conduct arising from the same act or transaction does not violate double jeopardy
principles.
i
Benjamin, Justice:
The petitioner, Ralph A. Lorenzetti, Prosecuting Attorney of Jefferson
County (“the State”), seeks a writ of prohibition pursuant to the original jurisdiction of
this Court to prohibit enforcement of the September 5, 2014, order of the Circuit Court of
Jefferson County, dismissing fifty-three counts of a fifty-four count indictment against
respondent Elizabeth A. “Libby” Shanton. Each of the fifty-three dismissed counts
alleged that Ms. Shanton used a state-issued purchasing card in violation of W. Va. Code
§ 12-3-10b (1996). The circuit court reasoned that the inclusion of these counts in the
indictment offended double jeopardy principles. For the reasons set forth herein, we
conclude that the circuit court erred by dismissing these fifty-three counts, abused its
legitimate powers and deprived the State of its right to prosecute the case. Therefore, we
grant the writ.
I. FACTUAL AND PROCEDURAL BACKGROUND
The controversy in this case surrounds the use of a purchasing card (“P-
Card”) issued pursuant to West Virginia’s Purchasing Card Program. The Purchasing
Card Program was implemented in 1996 by the Legislature and is administered by the
West Virginia State Auditor. W. Va. Code § 12-3-10a (2007). P-Cards provide “an
alternative payment method” that make “the procurement and payment of goods and
1
services . . . more efficient.” Id. According to the Auditor,1 the Purchasing Card Program
“obtain[s] greater accountability for purchases, improve[s] vendor payment cycles and
save[s] the State money through a streamlined payment process and cost avoidance.” The
Auditor asserts that P-Cards are “the payment method utilized for millions of dollars in
transactions involving essential state purchases.”
Ms. Shanton was issued a P-Card while she was employed as Dean of
Student Affairs at Shepherd University in Shepherdstown, West Virginia. Her
responsibilities as Dean of Student Affairs involved organizing student programming,
including meals, special events, and giveaways. Following an investigation by the
Commission on Special Investigations, see W. Va. Code §§ 4-5-1 to -6, and the Purchase
Card Program Oversight Division, Ms. Shanton was indicted in a fifty-four count
indictment connected to her use of her P-Card. Count 1 of the indictment alleges that Ms.
Shanton engaged in a fraudulent scheme in violation of W. Va. Code § 61-3-24d (1995)2
by using her P-Card from July 1, 2011, to August 3, 2011, to make purchases of goods
1
We wish to acknowledge the submission of a brief in this matter by amicus
curiae Glen B. Gainer III, West Virginia State Auditor. We express our appreciation for
his participation, and we have considered his position in our decision in this case. See
also West Virginia State Auditor’s Office, Purchasing Card Program,
http://www.wvsao.gov/purchasingcard/ (last visited May 11, 2015) (providing
information on the history and operation of the Purchasing Card Program).
2
The text of this statute is provided infra Part III.A.2.
2
and services, totaling $85,932.67, that were not for an official state purpose but which
Ms. Shanton claimed were for an official state purpose in a monthly P-Card transaction
log. The remaining counts, counts 2 through 54, allege that Ms. Shanton engaged in
fraudulent or unauthorized use of her P-Card in violation of W. Va. Code § 12-3-10b
(1996)3 by using the P-Card fifty-three times on specific dates between October 9, 2010,
and August 2, 2012, to purchase goods and services that were not for official state
purposes.4
Ms. Shanton filed three separate motions to dismiss the indictment. These
motions attacked each of the fifty-four counts in the indictment on one or more of the
following grounds: insufficiency, lack of jurisdiction, and unconstitutionality. On August
27, 2014, the circuit court held a conference call with the parties’ counsel and requested
that they submit additional factual information regarding the charges against Ms.
3
The text of this statute is provided infra Part III.A.1.
4
Ms. Shanton insists that all of the purchases described in the indictment were
made in furtherance of her duties as Dean of Student Affairs at Shepherd University. The
indictment alleges that Ms. Shanton unlawfully used her P-Card to purchase designer
handbags, perfume, cosmetics, and party supplies. The indictment also alleges that she
unlawfully used the P-Card to purchase windshield wiper blades and installation of the
wiper blades on a 1999 Ford Expedition, white platform boots in size 7–8, New York
Giants women’s gray boyfriend briefs in size extra large, and New York Giants women’s
blue panties size extra large.
3
Shanton. The State filed a “Response to Factual Inquiries of the Court” on September 4,
2014.5
The circuit court entered an order on September 5, 2014, granting Ms.
Shanton’s motion to dismiss with regard to the counts alleging that Ms. Shanton engaged
in fraudulent or unauthorized use of her P-Card in violation of W. Va. Code § 12-3-10b.
The circuit court determined that counts 2 through 54 of the indictment violated
principles of double jeopardy in two ways.
First, the circuit court determined that each swipe of the P-Card was part of
a continuing offense; therefore, because each swipe of the P-Card did not give rise to a
distinct offense, Ms. Shanton could only be charged with one violation of W. Va. Code §
12-3-10b. Accordingly, to avoid running afoul of double jeopardy principles, the circuit
court collapsed counts 2 through 54 of the indictment into one single count.
Second, the circuit court determined that the elements of the crime
described in counts 2 through 54 overlapped completely with the elements of count 1.
5
Neither party alleges that the court’s factual inquiries have bearing on the issues
presented in this proceeding. The inquiries dealt with whether Ms. Shanton was provided
with a budget or limit on spending when using the P-Card, whether other employees of
Shepherd University made purchases similar to those made by Ms. Shanton, whether
there are prohibitions against purchasing particular items with a P-Card, and whether the
expense accounts submitted by Ms. Shanton were approved by her supervisor.
4
The court concluded that double jeopardy prevented charging Ms. Shanton with violating
both statutes, and the court dismissed all counts in the indictment but count 1.
Determining that counts 2 through 54 must be dismissed for violating
principles of double jeopardy, the circuit court declined to address Ms. Shanton’s
remaining questions of constitutionality regarding these counts. The court also declined
to consider the issues raised by Ms. Shanton regarding the sufficiency of the indictment
and the circuit court’s jurisdiction.
The State now seeks a writ of prohibition to prohibit the circuit court from
enforcing its September 5, 2014, order dismissing counts 2 through 54 of the indictment.
II. STANDARD OF REVIEW
There are limited circumstances in which the State may request a writ of
prohibition in a criminal matter. We have held that
“[t]he State may seek a writ of prohibition in this
Court in a criminal case where the trial court has exceeded or
acted outside of its jurisdiction. Where the State claims that
the trial court abused its legitimate powers, the State must
demonstrate that the court’s action was so flagrant that it was
deprived of its right to prosecute the case or deprived of a
valid conviction. In any event, the prohibition proceeding
must offend neither the Double Jeopardy Clause nor the
defendant’s right to a speedy trial. Furthermore, the
application for a writ of prohibition must be promptly
presented.” Syllabus point 5, State v. Lewis, 188 W.Va. 85,
422 S.E.2d 807 (1992).
5
Syl. pt. 2, State ex rel. Sims v. Perry, 204 W. Va. 625, 515 S.E.2d 582 (1999).
The State contends that the circuit court abused its legitimate powers and
deprived the State of its right to prosecute its case against Ms. Shanton. We have held
that when a petitioner contends that a circuit court has abused its legitimate powers, the
Court will consider five factors in determining whether it will issue a writ of prohibition:
(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.
Syl. pt. 4, in part, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).
Pursuant to these standards, our review will proceed by examining the error
alleged by the State and whether that error constitutes an abuse of the circuit court’s
legitimate powers such that it deprived the State of its right to prosecute the case. Then,
we will evaluate whether the Hoover factors weigh in favor of granting the requested writ
of prohibition.
6
III. ANALYSIS
A. The circuit court has abused its legitimate powers and deprived
the State of its right to prosecute the case.
The State contends that the question now before the Court is this: “Did the
Circuit Court exceed its legitimate power in dismissing Counts 2 through 54 of the
Indictment each of which charged the defendant with separate violations of West Virginia
Code § 12-3-10b which statute criminalizes the Fraudulent or Unauthorized Use of a
State Purchasing Card?” This question encapsulates two issues: (1) whether the circuit
court erred by collapsing counts 2 through 54 into a single count, thereby effectively
dismissing all but one of those counts, and (2) whether the circuit court erred by
dismissing the condensed count, thereby dismissing all counts in the indictment alleging
violations of W. Va. Code § 12-3-10b.
1. The circuit court committed clear error by collapsing
counts 2 through 54 into a single count.
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).
The power of courts to convict and sentence defendants in accordance with the crimes
proscribed by the Legislature is limited by the double jeopardy clauses of the West
Virginia and United States constitutions, which prohibit, among other things, multiple
punishments for the same offense. W. Va. Const. art. III, § 5 (“No person shall . . . be
7
twice put in jeopardy of life or liberty for the same offence.”); U.S. Const. amend. V
(“No person shall . . . be subject for the same offense to be twice put in jeopardy of life or
limb . . . .”); syl. pt. 1, Conner v. Griffith, 160 W. Va. 680, 238 S.E.2d 529 (1977) (in
part) (“The Double Jeopardy Clause . . . prohibits multiple punishments for the same
offense.”). We have recognized that the protection against multiple punishments for the
same offense
“is designed to ensure that the sentencing discretion of courts
is confined to the limits established by the legislature.
Because the substantive power to prescribe crimes and
determine punishments is vested with the legislature, . . . the
question under the Double Jeopardy Clause whether
punishments are “multiple” is essentially one of legislative
intent.”
State v. Gill, 187 W. Va. 136, 141, 416 S.E.2d 253, 258 (1992) (quoting Ohio v. Johnson,
467 U.S. 493, 499 (1984)).
In determining whether double jeopardy principles have been violated by
the prosecution of multiple violations of the same statute, courts must ascertain whether
the offenses are part of the same “unit of prosecution” designated by the Legislature.
United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 221 (1952). The unit of
prosecution “determines what separates a single violation of the statute from multiple
violations.” United States v. Diana Shipping Servs., S.A., 985 F. Supp. 2d 719, 727 (E.D.
Va. 2013); see also State ex rel. Porter v. Recht, 211 W. Va. 396, 399, 566 S.E.2d 283,
286 (2002) (“[T]he analysis of whether a criminal defendant may be separately convicted
8
and punished for multiple violations of a single statutory provision turns upon the
legislatively-intended unit of prosecution.” (internal quotation marks omitted)); People v.
Simon, 266 P.3d 1099, 1106 (Colo. 2011) (en banc) (defining the unit of prosecution as
“the manner in which a criminal statute permits a defendant’s conduct to be divided into
discrete acts for purposes of prosecuting multiple offenses.” (internal quotation marks
omitted)); see generally syl. pt. 9, State v. McGilton, 229 W. Va. 554, 729 S.E.2d 876
(stating that convictions do not violate double jeopardy principles when “the facts
demonstrate separate and distinct violations of the statute”).
Whether a particular course of conduct involves one or more
distinct “offenses” under the statute depends on this
congressional choice, and [f]ew, if any, limitations are
imposed by the Double Jeopardy Clause on the legislative
power to define offenses. In order to determine the proper
unit of prosecution for a disputed statute, a district court is
required to begin with the statutory text.
Diana Shipping, 985 F. Supp. 2d at 727 (citation omitted) (internal quotation marks
omitted). When examining the statutory text, we look to the operative verb; it defines the
offense described in the statute. Porter, 211 W. Va. at 399, 566 S.E.2d at 286 (“[I]t is
axiomatic that the operative verb employed in the statute defines the offense . . . .”).
Counts 2 through 54 of the indictment against Ms. Shanton allege
violations of W. Va. Code § 12-3-10b. That statuteprovides:
It is unlawful for any person to use a state purchase
card, issued in accordance with the provisions of section ten-a
of this article, to make any purchase of goods or services in a
manner which is contrary to the provisions of section ten-a of
9
this article or the rules promulgated pursuant to that section.
Any person who violates the provisions of this section is
guilty of a felony and, upon conviction thereof, shall be
confined in the penitentiary not less than one nor more than
five years, or fined no more than five thousand dollars, or
both fined and imprisoned.
W. Va. Code § 12-3-10b (1996). On January 8, 2014, Senate Bill No. 267 was
introduced, proposing the following amendments to W. Va. Code § 12-3-10b, with strike
throughs indicating language to be deleted from the 1996 version of the statute and
underscoring indicating new language to be added:
It is unlawful for any person to use a state purchase
card, issued in accordance with the provisions of section ten-a
of this article, to make any purchase of goods or services in a
manner which is contrary to the provisions of section ten-a of
this article or the rules promulgated pursuant to that section:
Provided, That such action is a continuing offense beginning
when the purchasing card is issued or obtained by the person
and any county where a substantial or material element of the
offense occurred has jurisdiction to prosecute the offense.
Any person who violates the provisions of this section is
guilty of a felony and, upon conviction thereof, shall be
confined imprisoned in the penitentiary a state correctional
facility not less than one nor more than five years, or fined no
more than $5,000, or both fined and imprisoned.
Following numerous revisions by the Legislature, Senate Bill No. 267 was passed by
legislative act (“the Act”) on March 8, 2014, amending and reenacting W. Va. Code § 12
3-10b.6 As amended by the Act, W. Va. Code § 12-3-10b (2014) now provides:
6
The Act also amended and reenacted W. Va. Code § 6-9-2c (2014) (prohibiting
fraudulent or unauthorized use of a local government purchasing card). The changes to
the Code sections in the Act became effective on June 6, 2014.
10
(a) It is unlawful for any person to use a state
purchasing card, issued in accordance with the provisions of
section ten-a [§ 12-3-10a] of this article, to make any
purchase of goods or services in a manner which is contrary
to the provisions of section ten-a of this article or the rules
promulgated pursuant to that section.
(b) It is unlawful for any person to knowingly or
intentionally possess with the intent to use a purchasing card
without authorization pursuant to section ten-a of this article
or the rules promulgated pursuant to that section.
(c) Any person who violates the provisions of this
section is guilty of a felony and, upon conviction thereof,
shall be imprisoned in the penitentiary not less than one year
nor more than five years, or fined no more than $5,000, or
both fined and imprisoned.
(d) A violation of this section may be prosecuted in the
county in which the card was issued, unlawfully obtained,
fraudulently used, used without authorization, or where any
substantial or material element of the offense occurred.
Notably, the amended statute does not include the continuing offense language present in
the bill originally introduced to the Legislature. However, the Act contains the following
preamble:
AN ACT to amend and reenact . . . § 12-3-10b of said
code, all relating to fraudulent or unauthorized use of
purchasing cards; ensuring that the courts of West Virginia
have jurisdiction over fraudulent or unauthorized use of
purchasing cards; establishing jurisdiction; and defining the
conduct as a continuing offense.
(Emphasis added).
11
The parties do not dispute that the controlling version of W. Va. Code § 12
3-10b in this case is the 1996 version of the statute.7 The dispute here involves the effect
of the preamble to the Act on the interpretation and application of the controlling statute,
the 1996 version of W. Va. Code § 12-3-10b.
Statutory preambles are not part of the enacted law and “cannot control the
enacting part of the statute which is expressed in clear and unambiguous terms.” Slack v.
Jacob, 8 W. Va. 612, 628 (1875). However, the Court has long held that
[a] preamble may be consulted in some cases to
ascertain the intentions of the Legislature. But it is chiefly
from the main body the purview of the act, that the will of the
Legislature is to be learned; when this is clear and express,
the preamble will not avail to contradict it.
Syl. pt. 7, id.
7
The 2014 version of W. Va. Code § 12-3-10b has not changed the elements of
the crime described therein, nor has it changed the possible penalties, and the Legislature
has not expressed its intent that the newest version of the statute apply retroactively.
Thus, the controlling version of the statute to the facts of this case is the 1996 version.
See syl. pt. 4, State v. Easton, 203 W. Va. 631, 510 S.E.2d 465 (1998) (“‘The Statute in
force at the time of the commission of an offense governs the character of the offense,
and generally the punishment prescribed thereby, unless, as provided by our statute, the
defendant elects to be punished as provided in an amendment thereof.’ Syllabus point 4,
State v. Wright, 91 W.Va. 500, 133 S.E. 764 (1922).”); In re Daniel H., 678 A.2d 462,
468 (Conn. 1996) (“In criminal cases, to determine whether a change in the law applies to
a defendant, we generally have applied the law in existence on the date of the offense,
regardless of its procedural or substantive nature.”); see generally State v. Sessions, 287
P.3d 497 (Utah 2012) (finding no error when the lower court ordered the maximum
sentence under an older version of the controlling statute, where the newer version of the
statute shared the same maximum sentence but had a shorter minimum sentence).
12
The circuit court, relying on the preamble to the Act, concluded in its
September 5, 2014, order:
[T]he recent legislative intent persuades this Court to
construe the word “use” to refer to not singular swipes or
verifications of the purchasing card, but the overall pattern of
use, such that Counts 2 through 54 would necessarily be
collapsed into one count of violation of W.Va. Code §12-3
10b in order to avoid running afoul of double jeopardy
principles.
In its brief to this Court, the State maintains that “the Circuit Court’s
reasoning is flawed and clearly erroneous, based on the introductory paragraph of a
Senate Bill rather than the actual language of the revised statute.” The State asserts that
the language of W. Va. Code § 12-3-10b (1996) is clear and unambiguous and that
because the Legislature “omitted any reference to the criminal conduct being continuing
in character, . . . the ordinary meaning of the language must be given to it: each offense is
a separate offense, not a continuing offense.”
Ms. Shanton contends that the circuit court correctly interpreted the statute
and that it did not err by collapsing counts 2 through 54 of the indictment into one count.
She proposes that “[l]ooking at the text of either the original statute under which [she]
was charged or at the amended statute, the text does not express a clear indication of
whether the offense is of a continuing nature.” She insists that “to determine whether the
13
offense is of a continuing nature, a court must necessarily engage the rules of statutory
interpretation.” Ms. Shanton argues that “the operative verb [‘use’] and unit of
prosecution would support a reading that a violation of § 12-3-10b is a continuing offense
and that [she] can only be charged once for a [sic] alleged continuing course of conduct.”
Upon our review of the circuit court’s order, we observe that the circuit
court has skipped the vital first step in construing a statute: making a determination that
the statute is ambiguous. “A statute is open to construction only where the language used
requires interpretation because of ambiguity which renders it susceptible of two or more
constructions or of such doubtful or obscure meaning that reasonable minds might be
uncertain or disagree as to its meaning.” Hereford v. Meek, 132 W. Va. 373, 386, 52
S.E.2d 740, 747 (1949). “Where the language of a statute is free from ambiguity, its plain
meaning is to be accepted and applied without resort to interpretation.” Syl. pt. 2,
Crockett v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 (1970); see also syl. pt. 2, Mace v.
Mylan Pharm., Inc., 227 W. Va. 666, 714 S.E.2d 223 (2011) (“‘“A statutory provision
which is clear and unambiguous and plainly expresses the legislative intent will not be
interpreted by the courts but will be given full force and effect.” Syl. Pt. 2, State v.
Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951).’ Syl. Pt. 1, State v. Jarvis, 199 W.Va.
635, 487 S.E.2d 293 (1997).”). Thus, only when a court determines that a statute is
ambiguous may it then go on to interpret the meaning of that statute by considering,
among other things, language in a legislative act’s preamble. See syl. pt. 7, Slack, 8 W.
14
Va. 612. If the statutory language is clear and unambiguous, the court must apply the
statute as it is written.
Upon our review of W. Va. Code § 12-3-10b (1996), we determine that the
statute is not ambiguous. The portion of the statute at issue is as follows:
It is unlawful for any person to use a state purchase
card, issued in accordance with the provisions of section ten-a
of this article, to make any purchase of goods or services in a
manner which is contrary to the provisions of section ten-a of
this article or the rules promulgated pursuant to that section.
W. Va. Code § 12-3-10b (emphasis added). The word “use” when used as a verb can
mean “[t]o employ for the accomplishment of a purpose; to avail oneself of” and “[t]o put
into practice or employ habitually or as a usual way of doing something.” Black’s Law
Dictionary 1776 (10th ed. 2014). The State argues that “use” in W. Va. Code § 12-3-10b
(1996) refers to the employment of a P-Card to make a single purchase, and Ms. Shanton
argues that the word refers to the employment of a P-Card to make a purchase or
purchases over a period of time. We find that the meaning of the word as it is used in the
statute can be deduced from the context in which it is used. See State v. Ziska, 334 P.3d
964, 967 (Or. 2014) (“Obviously, the verb ‘use’ can be ‘used’ in a variety of senses. . . .
[To] reveal which sense the legislature had in mind . . . we look to the terms of the statute
and how the words in dispute are used in context.”).
15
Parsing the relevant statutory text according to the rules of grammar, we
find that “use” acts as a transitive verb. All transitive verbs have objects, and the object
provides the context for the transitive verb. The Chicago Manual of Style 5.96, at 229
(16th ed. 2010); see also State v. Castleberry, 293 P.3d 757, 764 (Kan. Ct. App. 2013)
(“Focus on the object . . . is therefore critical to giving full effect to the term “use.”);
Pizzo v. State, 235 S.W.3d 711, 721 (Tex. Crim. App. 2007) (“[A] transitive verb . . .
requires a direct object to complete the meaning of the sentence.”). Here, the object of the
transitive verb is “purchase.” As used in the statute, “purchase” is a singular noun defined
as “an instance of buying.” Black’s Law Dictionary 1429 (10th ed. 2014). Thus, the effect
given to the transitive verb “use” by the singular object “purchase” is to limit “use” to a
singular event. In other words, as it is employed in the statute, “use” can only be defined
as a single incident of employing a P-Card. Therefore, each purchase made in violation of
the statute constitutes a separate chargeable offense and a distinct unit of prosecution.
Had the Legislature intended otherwise, it could have replaced the singular object with
the plural object “purchases” or included language specifying that the unlawful “use”
takes place over a period of time. See, e.g., 18 U.S.C. § 1029(a) (2002) (“Whoever . . . (2)
knowingly and with intent to defraud traffics in or uses one or more unauthorized access
devices during any one-year period, and by such conduct obtains anything of value
aggregating $1,000 or more during that period . . . shall, if the offense affects interstate or
foreign commerce, be punished . . . .”).
16
Our reasoning here echoes our analysis in a comparable case, State v.
Green, 207 W. Va. 530, 534 S.E.2d 395 (2000). In Green, the defendant obtained money
orders for $40 each which she then altered to show $400 each, and she forged the
endorsements on the money orders. 207 W. Va. at 533, 534 S.E.2d at 398. She presented
the money orders to a bank in Huntington, West Virginia, which exchanged them for
money. Id. The defendant was indicted on thirty-two counts of forgery, uttering, and
obtaining goods by false pretenses. Id. at 532, 534 S.E.2d at 397. She entered into a plea
deal whereby the State dismissed all of the counts of forgery and obtaining goods by false
pretenses in the indictment in exchange for her entering a plea of guilty to ten counts of
uttering. Id. She was sentenced to a one-to-ten year term of imprisonment on each count,
with the first eight counts to be served consecutively and the remaining two counts to be
served concurrently with the eighth count. Id. at 533, 534 S.E.2d at 398.
Following conviction, the defendant filed a habeas petition for post-
conviction relief with this Court, “claiming that her consecutive sentences violated
double jeopardy and proportionality principles.” Id. The Court ordered the circuit court to
conduct an omnibus hearing. Id. At the hearing, the defendant testified that, under the
language of the controlling statute, “this was one crime [not ten]. I passed these money
orders as a set of ten with one teller with one deposit slip. It was one transaction.” Id. The
circuit court concluded “that the conduct encompassed by the ten pleaded-to counts of the
17
indictment were part of one continuous transaction, thus warranting relief.” Id. (internal
quotation marks omitted).
On appeal, this Court disagreed and reversed the circuit court, concluding
that the lower court had misconstrued the controlling statute, W. Va. Code § 61-4-5
(1961).8 Id. at 538, 534 S.E.2d at 403. That statute states in relevant part with emphasis
added: “If any person forge any writing . . . to the prejudice of another’s right, or utter or
attempt to employ as true such forged writing, knowing it to be forged, he shall be guilty
of a felony . . . .” W. Va. Code § 61-4-5. In Green, the issue before the Court was
whether the unit of prosecution was fixed by the number of money orders passed or the
number of transactions. The State argued that “because the statute uses of [sic] the term
‘writing’ in its singular form, the proper unit of prosecution for uttering must
correspondingly be the number of individual writings passed.” Id. at 537, 534 S.E.2d at
402. The Green Court agreed with the State and recognized that “any,” which is used in
the statute in its singular form, is used in the context of the singular noun “writing.” Id. at
537–38, 534 S.E.2d at 402–03. The Court concluded, “The only logical result that could
be reached after examining § 61–4–5(a) is that each time a person utters a forged
document, he shall be guilty of a felony.” Id. at 538, 534 S.E.2d at 403 (internal quotation
marks omitted).
8
W. Va. Code § 61-4-5 was amended in 1998, but the language at issue in Green
remained the same following the amendments.
18
In reaching this conclusion, the Green Court relied on the same rules of
grammar that apply in the present case. In Green, the unit of prosecution was controlled
by the operation of the transitive verb “utter,” which means “to put or send . . . into
circulation.” Black’s Law Dictionary 1781 (10th ed. 2014). “Writing,” the object of the
transitive verb, provides the context for interpreting the transitive verb. The Court
determined that the Legislature used a singular noun as the object of the transitive verb.
Use of a singular noun provides the context for “utter.” In that context, as the Court
concluded, the statute can only mean that each writing uttered in Green gave rise to one
violation of W. Va. Code § 61-4-5.
Ms. Shanton asserts that State ex rel. Porter v. Recht, 211 W. Va. 396, 566
S.E.2d 283 (2002), which distinguishes itself from Green, is directly on point and
supports her position. In Porter, the defendant was charged with twenty counts of false
swearing. 211 W. Va. at 398, 566 S.E.2d at 285. These charges arose from two affidavits
signed by the defendant that were each comprised of ten separate statements. Id. The
State alleged that each separate statement—twenty in all—constituted separate violations
of W. Va. Code § 61-5-2 (1923). Id. The defendant, on the other hand, argued that the
charges were “multiplicitous” and violated double jeopardy principles. Id. W. Va. Code §
61-5-2 provides with emphasis added, “To willfully swear falsely, under oath or
affirmation lawfully administered . . . on any occasion other than a trial for a felony,
19
concerning any matter or thing material or not material . . . is false swearing and is a
misdemeanor.”
In Porter, the State argued that according to Green, the use of the word
“any” in W. Va. Code § 61-5-2 indicates that the Legislature intended that the statute
“necessarily permits separate charges for each false statement set forth in an affidavit.”
211 W. Va. at 399, 566 S.E.2d at 286. However, the Porter Court determined that
“[w]hile this Court clearly focused on the singular nature of ‘any’ in reference to the
writing required for a forgery in Green, it is the act of forgery that is key to the offense,
and not the singular versus plural nature of the writings required to commit a forgery.” Id.
The Court continued:
In determining whether the Legislature intended each
false statement included in an affidavit, or the entire affidavit
as a whole, as the unit of prosecution under the false swearing
statute, we must look to the gravamen of the offense of false
swearing. Rather than the making of the individual false
statements, it is the act of willfully swearing to the
truthfulness of those statements while under oath, whether
they be singular or multiple in number, that is the essence of
the charge of false swearing under West Virginia Code § 61–
5–2. Given the mechanics of executing an affidavit, the act of
swearing to the veracity of the statement(s) set forth
cumulatively within the document occurs after the affidavit,
complete with averments, has been prepared for the affiant’s
signature. While the signature is not an equivalent of the oath,
it is the method by which the affiant indicates that he has
sworn to the veracity of the statements set forth above his
signature.
20
Id. at 399–400, 566 S.E.2d at 286–87. Accordingly, the Court held, “An affiant who
commits the act of swearing to the veracity of one or more matters set forth in an
affidavit may only be charged with a single count of false swearing within the meaning of
West Virginia Code § 61–5–2 (1923) (Repl.Vol.2000).” Syl. pt. 2, id.
Ms. Shanton insists that Porter supports her position that “the operative
verb ‘to use’ a state purchase card . . . encompasses any and all purchases of ‘goods or
services’” and that “[i]t is not a single use of the state purchase card that is an offense, but
rather the person’s overall use of the state purchase card, if such use is in a manner
contrary to the code or rules.” We disagree.
Green and Porter are distinguished by the operative verbs used in the
statutes at issue in those cases. In Green, the operative verb “utter” is transitive; in
Porter, the operative verb “swear” is intransitive and means “[t]o take an oath.” Black’s
Law Dictionary 1677 (10th ed. 2014). “An intransitive verb does not require an object to
express a complete thought . . . .” The Chicago Manual of Style 5.96, at 229 (16th ed.
2010). While consideration of words in the statute other than the operative verb—
specifically, the direct object of the verb—was essential in ascertaining the meaning of
the transitive verb in Green, the opposite was true in Porter. Because the operative verb
in the present matter, which defines the offense, is transitive rather than intransitive, the
analysis in Green is comparable, while the analysis in Porter is not.
21
Although we conclude that W. Va. Code § 12-3-10b is not ambiguous and
does not require interpretation to discern legislative intent, we note that our construction
thereof is consistent with our treatment of similar statutes. W. Va. Code § 61-3C-13(c)
(1989) is one such instance. That statute provides, among other things, that a person is
guilty of a felony when that person “knowingly, willfully and with intent to defraud . . .
uses . . . any . . . access device [obtained without authority].” See W. Va. Code § 61-3C
13(a)(1) (defining “access device” as including “any card . . . that can be used . . . to
obtain money, goods, services, or any other thing of value.”). In State v. Ross, No. 12
0441, 2013 WL 2462166, at *1, *3 (W. Va. June 7, 2013) (memorandum decision), the
defendant had been found guilty of three counts of fraudulent use of an access device in
violation of W. Va. Code § 61-3C-13(c) after he used a stolen credit card in three
different locations, and this Court upheld his conviction. In so doing, the Court implicitly
recognized that use of an access device within the meaning of W. Va. Code § 61-3C
13(c) refers not to the continued employment of the stolen card over a period of time but
to the individual swipes of the card.
The circuit court erred by applying a meaning to W. Va. Code § 12-3-10b
that is contrary to the plain language used therein. We hold that pursuant to the plain
language of W. Va. Code § 12-3-10b (1996), each purchase of goods or services made
using a state purchasing card in a manner contrary to the provisions of the W. Va. Code §
22
12-3-10a (2007) or rules promulgated pursuant to that section involves a distinct offense.
In view of this holding, we conclude that counts 2 through 54 of the indictment constitute
distinct offenses, and prosecution under each count does not violate double jeopardy
principles. Thus, the circuit court abused its legitimate powers by condensing counts 2
through 54 of the indictment into a single count. This abuse of power has deprived the
State of its right to prosecute its case against Ms. Shanton.9
9
In addition to challenging the indictment on double jeopardy grounds, Ms.
Shanton also argues in her brief that counts 2 through 54 are insufficient as a matter of
law because they do not substantially follow the language of the statute and do not fully
inform the accused of the particular offense with which she is charged. We disagree.
Syllabus point 4 of Ballard v. Dilworth, 230 W. Va. 449, 739 S.E.2d 643 (2013),
provides:
“‘An indictment is sufficient under Article III, § 14 of the West
Virginia Constitution and W.Va. R.Crim. P. 7(c)(1) if it (1) states the
elements of the offense charged; (2) puts a defendant on fair notice of the
charge against which he or she must defend; and (3) enables a defendant to
assert an acquittal or conviction in order to prevent being placed twice in
jeopardy.’ Syl. Pt. 6, State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20
(1999).” Syl. Pt. 5, State v. Haines, 221 W.Va. 235, 654 S.E.2d 359 (2007).
Counts 2 through 54 all accuse Ms. Shanton of committing the offense of
fraudulent or unauthorized use of a P-Card in violation of W. Va. Code § 12-3-10b, thus
informing her of the particular offense with which she is charged. Each of these counts
includes the elements of the offense charged, to-wit: (1) use of a P-Card (2) to make any
purchase (3) of goods or services (4) in a manner contrary to W. Va. Code § 12-3-10a or
the rules promulgated pursuant to that section. See discussion of the elements of W. Va.
Code § 12-3-10b infra Part III.A.2. Each count contains the following language that
significantly tracks the language of the statute: “[S]he did use a state purchase card to
make a purchase of goods and services in a manner contrary to the provisions of law,
and/or for purchases which were not for official state purposes.” Finally, each count
describes with specificity when and how Ms. Shanton has allegedly violated W. Va. Code
(continued . . .)
23
2. The circuit court committed clear error by dismissing every count
alleging a violation of W. Va. Code § 12-3-10b.
As discussed supra, the double jeopardy clause prohibits multiple
punishments for the same offense. Syl. pt. 1, Conner, 160 W. Va. 680, 238 S.E.2d 529.
We held in syllabus point 8 of State v. Zaccagnini, 172 W. Va. 491, 308 S.E.2d 131
(1983), that “[w]here 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.” Accord Blockburger v. United States, 284 U.S. 299, 304 (1932). This test is
“traditionally regarded as ‘a rule of statutory construction . . . [based on] . . . [t]he
assumption underlying the rule . . . that [the Legislature] ordinarily does not intend to
punish the same offense under two different statutes.’” Gill, 187 W. Va. at 142, 416
S.E.2d at 259 (first two alterations in original) (quoting Whalen v. United States, 445 U.S.
684, 691–92 (1980)). However, the test does not apply where
the [L]egislature has made a clear expression of its intention
to aggregate sentences for related crimes. If no such clear
legislative intent can be discerned, then the court should
analyze the statutes under the test set forth in Blockburger to
determine whether each offense requires an element of proof
the other does not. If there is an element of proof that is
different, then the presumption is that the [L]egislature
intended to create separate offenses.
§ 12-3-10b, enabling her to assert an acquittal or conviction in order to prevent being
placed twice in jeopardy. We conclude that the indictment is sufficient.
24
Syl. pt. 8, in part, id.
Below, the circuit court did not make any findings as to Legislative intent,
instead skipping directly to applying the Blockburger test. Pursuant to Blockburger, the
circuit court determined that the charges against Ms. Shanton alleging violations of both
W. Va. Code § 12-3-10b and W. Va. Code § 61-3-24d violated her double jeopardy
rights, stating in its order:
[T]his [c]ourt discerns no substantial difference between one
who acts with specific intent to deprive another of his
property using false statements, and one who uses a
purchasing card in a manner contrary to the rules of
governing such use, where such use includes the verification
that said use was permitted (thus in so doing, employing the
false representation that such use was permitted). The other
elements of these statutes, West Virginia Code §61-3-24d and
West Virginia Code §12-3-10b(a), align . . . . Thus, this Court
agrees with the defendant that [she] can only be charged with
either a violation of Section 12-3-10b or a violation of W. Va.
Code §61-3-24d.
(Internal quotation marks omitted). In seeking this writ, the State asserts that it the circuit
court erred by dismissing counts 2 through 54 of the indictment.
In our de novo review, we begin by examining the factual allegations
contained in the indictment. Count 1 alleges that Ms. Shanton committed the offense of
fraudulent schemes in violation of W. Va. Code § 61-3-24d in connection with her use of
her P-Card between July 1, 2011, and August 3, 2011. Of the remaining fifty-three counts
25
in the indictment, all of which allege that Ms. Shanton committed the offense of
fraudulent or unauthorized use of a P-Card in violation of W. Va. Code § 12-3-10b, only
one of those counts can be construed as alleging unlawful P-Card use during the
timeframe described in count 1 of the indictment. That count, count 14, alleges that Ms.
Shanton used her P-Card on July 27, 2011, to purchase merchandise totaling $160.06.
Because the prohibition against multiple punishments for the same offense is not
implicated where the alleged crimes do not arise from the same act or transaction, counts
2 through 13 and counts 15 through 54 do not offend double jeopardy principles. While it
is not clear in the indictment whether the conduct described in count 14 is part of the
same transaction described in count 1, upon application of the analysis required by
syllabus point 8 of Gill, it is evident that punishments under both W. Va. Code § 12-3
10b and W. Va. Code § 61-3-24d for conduct arising from the same act does not violate
double jeopardy principles.
The first step of the Gill analysis requires courts to determine whether the
Legislature expressed clear intent that actions violating both W. Va. Code § 12-3-10b and
W. Va. Code § 61-3-24d constitute one offense or multiple offenses. W. Va. Code § 12
3-10b (1996), quoted supra Part III.A.1, does not include any language in the statute
itself nor its legislative history indicating the Legislature’s desire to create multiple
offenses and punishments for the same conduct. On the contrary, W. Va. Code § 61-3
24d does contain a relevant provision. That statute provides:
26
(a) Any person who willfully deprives another of any
money, goods, property or services by means of fraudulent
pretenses, representations or promises shall be guilty of the
larceny thereof.
(b) In determining the value of the money, goods,
property or services referred to in subsection (a) of this
section, it shall be permissible to cumulate amounts or values
where such money, goods, property or services were
fraudulently obtained as part of a common scheme or plan.
(c) A violation of law may be prosecuted under this
section notwithstanding any other provision of this code.
W. Va. Code § 61-3-24d (emphasis added).
In State v. Coles, 234 W. Va. 132, 763 S.E.2d 843 (2014), the Court
examined W. Va. Code § 61-3-24d(c) and held in syllabus point 4:
The Legislature has made clear that the fraudulent
scheme offense under W. Va. Code § 61-3-24d (1995)
(Repl.Vol.2010) is a separate offense that may be prosecuted
in addition to any other offense under the Code. Therefore,
double jeopardy principles do not preclude a conviction and
sentence . . . for any other offense arising out of the same
transaction or occurrence.
(In part). However, Coles was decided thirteen days after the circuit court’s order was
entered in this case. At the time the order was entered, syllabus point 7 of State v. Rogers,
209 W. Va. 348, 547 S.E.2d 910 (2001), set forth the controlling law:
The provision in West Virginia Code § 61–3–24d
(1995) (Repl.Vol.2000) [defining the crime of larceny by
fraudulent scheme] found in subsection (c), which reads, “A
violation of law may be prosecuted under this section
notwithstanding any other provision of this code,” does not
express a clear legislative intent to create a separate and
distinct offense, with separate, additional punishment for the
same acts.
27
Because Coles was decided after the circuit court entered the order on
appeal, Rogers must control in this case. Coles cannot be applied retroactively because
doing so would permit W. Va. Code § 61-3-24d to function as an ex post facto law by
allowing, particularly where two or more crimes involve the same elements, greater
punishments than might have been anticipated when the crime was committed. See Bouie
v. City of Columbia, 378 U.S. 347, 353–54 (1964) (“[A]n unforeseeable judicial
enlargement of a criminal statute, applied retroactively, operates precisely like an ex post
facto law . . . . If a judicial construction of a criminal statute is unexpected and
indefensible by reference to the law which had been expressed prior to the conduct in
issue, it must not be given retroactive effect.” (internal quotation marks omitted)).10
Consequently, we must consider whether the circuit court correctly decided the case
pursuant to Rogers.
Because Rogers controls, we are constrained by the holding in syllabus
point 7 to find no clear legislative intent in W. Va. Code § 61-3-24d indicating that the
10
The U.S. Supreme Court has held that ex post facto laws include “‘[e]very law
that changes the punishment, and inflicts a greater punishment, than the law annexed to
the crime, when committed.’” Peugh v. United States, ___ U.S. ___, ___, 133 S. Ct.
2072, 2081 (2013) (quoting Calder v. Bull, 3 U.S. 386, 390 (1798)). Both the United
States Constitution and the West Virginia Constitution prohibit the passing of ex post
facto laws. U.S. Const. art. I, § 9, cl. 3; W. Va. Const. art. III, § 4.
28
statute was intended to provide a separate punishment for the same acts giving rise to a
violation of another statutory provision. Therefore, our analysis must continue on to the
second part of the analysis set forth in syllabus point 8 of Gill: application of the
Blockburger test. Under this test, if each offense requires an element of proof the other
does not, double jeopardy principles are not offended by charging the defendant with
both crimes.
The full text of W. Va. Code § 12-3-10b (1996) is quoted supra Part
III.A.1. The elements of that crime are summarized as follows: (1) use of a P-Card (2) to
make any purchase (3) of goods or services (4) in a manner contrary to W. Va. Code §
12-3-10a or the rules promulgated pursuant to that section. The elements of W. Va. Code
§ 61-3-24d, which is quoted supra, are summarized as follows: (1) willful deprivation (2)
of any money, goods, property or services (3) of another person (4) by means of
pretenses, representations, or promises (5) that are fraudulent. See Rogers, 209 W. Va. at
358, 547 S.E.2d at 920.
The circuit court did not discern any difference between the elements of the
two crimes. This conclusion is clearly erroneous. Unlike W. Va. Code § 12-3-10b, W.
Va. Code § 61-3-24d requires that a defendant have used pretenses, representations, or
promises that were fraudulent. Additionally, W. Va. Code § 12-3-10b contains elements
29
that do not appear in W. Va. Code § 61-3-24d, including use of a P-Card and action that
is contrary to W. Va. Code § 12-3-10a or the rules promulgated pursuant to that section.
We conclude that both W. Va. Code § 12-3-10b and W. Va. Code § 61-3
24d each contain elements that the other statute does not. Therefore, pursuant to Gill and
Blockburger, a charge under each of these statutes for conduct arising out of the same
transaction or occurrence does not offend double jeopardy principles. We now hold that
W. Va. Code § 12-3-10b (1996) and W. Va. Code § 61-3-24d (1995) each contain
elements the other does not, and punishment under these two statutes for conduct arising
from the same act or transaction does not violate double jeopardy principles.
Accordingly, the circuit court abused its legitimate powers by dismissing every count in
the indictment alleging a violation of W. Va. Code § 12-3-10b, and this action deprived
the State of its right to prosecute its case against Ms. Shanton.
B. The writ of prohibition should issue
Hoover requires that the Court consider five factors in determining whether
it should issue a writ of prohibition. Syl. pt. 4, Hoover, 199 W. Va. 12, 483 S.E.2d 12,
quoted supra Part II. The parties dispute whether the factors weigh for or against
granting the writ.
30
First, Ms. Shanton asserts that the State may seek a direct appeal, and that
this weighs against granting the writ. She claims that a direct appeal is available pursuant
to W. Va. Code § 58-5-30 (1998) (permitting the state to appeal the dismissal of an
indictment “held bad or insufficient by the judgment of a circuit court”) because
“[c]ounts 2 through 54 of the Indictment were clearly dismissed for being bad and/or
insufficient.” She cites to State v. Lewis, 188 W. Va. 85, 95, 422 S.E.2d 807, 817 (1992),
which provides that “if the adverse ruling involves the sufficiency of an indictment,
which can be appealed under W.Va.Code, 58–5–30, there is no need for the State to use
prohibition because it has an adequate remedy.” See also State ex rel. Forbes v. Canady,
197 W. Va. 37, 42, 475 S.E.2d 37, 42 (1996) (“Although the State does not have the
ability to appeal the dismissal of an indictment when it is not bad or insufficient, we
recognize that the State is armed with another right of appellate review in the form of
prohibition.”), superseded by rule on other grounds as recognized in State v. Hartman,
229 W. Va. 749, 735 S.E.2d 898 (2012).
We disagree with Ms. Shanton’s assertion that the circuit court dismissed
counts 2 through 54 of the indictment for being “bad or insufficient.” In Forbes, the
Court explained that
[a]n indictment is bad or insufficient for purposes of
analysis under W. Va.Code 58–5–30 when within the four
corners of the indictment it: (1) fails to contain the elements
of the offense to be charged and sufficiently apprise the
defendant of what he or she may be prepared to meet; and (2)
31
fails to contain sufficient accurate information to permit a
plea of former acquittal or conviction.
197 W. Va. at 41, 475 S.E.2d at 41 (citing Russell v. United States, 369 U.S. 749, 763–64
(1962)). The circuit court’s order does not indicate that the indictment was bad or
insufficient. Additionally, the order does not include any findings that the indictment
failed to contain all of the elements of the offense addressed therein, that the indictment
failed to apprise Ms. Shanton of what she must be prepared to meet, or that the
indictment failed to contain sufficient accurate information to permit a plea of former
acquittal or conviction. It is clear that this indictment was not dismissed for being bad or
insufficient. See id. (“[B]ecause there is no contention that the indictment failed to
contain all the elements of the offense of malicious assault, or that it did not sufficiently
apprise the defendant of what he was prepared to meet, or that it failed to contain
sufficient accurate information to permit a plea of former acquittal or conviction, then the
potential dismissal of the indictment has nothing to do with its being bad or with its
sufficiency.”). Thus, W. Va. Code § 58-5-30, does not permit an appeal in this case.
Indeed, the Court has recognized that “prohibition is an appropriate method for the State
to challenge the dismissal of an indictment.” State ex rel. State v. Gustke, 205 W. Va. 72,
76, 516 S.E.2d 283, 287 (1999). The first Hoover factor therefore weighs in favor of
granting the writ requested by the State.
The second Hoover factor—whether the petitioner will be damaged or
prejudiced in a way that is not correctable on appeal—also weighs in favor of the State.
32
The State would be foreclosed from challenging the dismissal of the counts on appeal
following trial. See Lewis, 188 W. Va. at 89, 422 S.E.2d at 811 (“[T]he State’s right to an
appeal in a criminal case is contained in W.Va.Code, 58–5–30, and is confined to those
cases where an indictment is held bad or insufficient by the judgment or order of the
circuit court[.]” (internal quotation marks omitted)).
The third Hoover factor, which involves the determination of whether the
circuit court committed clear error as a matter of law, weighs in favor of granting the writ
in the present case. As set forth in Part III.A. supra, the circuit court clearly erred when it
condensed counts 2 through 54 of the indictment into a single count and when it
dismissed that condensed count. Pursuant to Hoover, we provide this factor substantial
weight.
The fourth Hoover factor—whether the error is an oft repeated error—does
not weigh in favor of granting the writ. Neither party has alleged that W. Va. Code § 12
3-10b has been consistently misapplied.
Finally, the fifth Hoover factor, which weighs in favor of granting a writ of
prohibition where an issue of first impression is presented, is supportive of the State’s
position. As the State points out in its brief, W. Va. Code § 12-3-10b “has not been the
33
subject of any decisions of this [C]ourt.” In the present matter, we have addressed the
issue of first impression by creating a new syllabus point.
In summary, the first, second, third, and fifth Hoover factors weigh in favor
of granting the State’s requested writ of prohibition. Pursuant to Hoover, we conclude
that the State is entitled to the writ it seeks.
IV. CONCLUSION
For the reasons set forth above, we conclude that the circuit court has
abused its legitimate powers and denied the State the right to prosecute its case against
Ms. Shanton. Further, we conclude that the Hoover factors weigh in favor of granting the
requested writ of prohibition to prohibit enforcement of the circuit court’s order entered
September 5, 2014. Accordingly, we grant the writ, vacate the September 5, 2014, order,
and remand this case for further proceedings consistent with this opinion.
Writ granted.
34