STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
James Cross Jr., FILED
Petitioner Below, Petitioner
March 12, 2018
EDYTHE NASH GAISER, CLERK
vs.) No. 16-1093 (Berkeley County 15-C-534) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Karen Pszczolkowski, Warden,
Northern Correctional Facility,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner James Cross Jr., by counsel Douglas F. Kobayashi, appeals the Circuit Court of
Berkeley County’s October 27, 2016, order denying his amended petition for writ of habeas
corpus. Respondent Karen Pszczolkowski, Warden of Northern Correctional Facility, by counsel
Cheryl K. Saville, filed a response and supplemental appendix. Petitioner filed a reply.
Following appointment of counsel to assist with his appeal, petitioner filed a supplemental brief,
and respondent filed a supplemental response. On appeal, petitioner argues that his recidivist life
sentence is void due to the circuit court’s failure to “duly caution” him in accordance with West
Virginia Code § 61-11-19.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
In June of 2012, petitioner was convicted of second-degree murder, attempted second-
degree murder, and malicious assault. Following these convictions, the State filed a recidivist
information seeking to enhance petitioner’s malicious assault sentence to a life sentenced based
upon two prior separate felony convictions.
On August 27, 2012, petitioner was arraigned on the recidivist information. At his
arraignment, the following exchange occurred:
THE COURT: I then received – so with the motion denied, the State has
filed an information –
MR. PREZIOSO [petitioner’s trial counsel]: That’s correct judge.
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THE COURT: - charging your client with having been twice convicted
previously with a felony prior to this conviction, therefore, they intend to request
that sentencing be done as a recidivist exposing him to life imprisonment. Have
you had a chance to review that with your client?
MR. PREZIOSO: Yes, Your Honor. I’ve received a copy of it. I sent a
copy of it to my client. I’ve reviewed it with my client. I spoke to him at length
and we had a lot prepared for sentencing today but I’m assuming the [c]ourt is
going to probably defer until after recidivist.
We are remaining silent. We are not – I’ve reviewed the information with
him. We waive reading in open court but we are remaining silent pursuant to 61-
11-19 and ask that a jury trial be set.
THE COURT: Mr. Cross, your attorney indicates that he has reviewed
with you the recidivist information filed by the State alleging that you were twice
before convicted of a felony offense prior to this felony conviction. As Mr.
Prezioso pointed out, you can remain silent in the matter but the law requires that
I inquire of you as to whether or not you are, in fact, the same individual that was
named in the information.
MR. PREZIOSO: Your Honor, he’s going to remain silent.
THE COURT: Okay. That’s kind of funny under the law we say you
remain silent but you have to say I remain silent.
So you wish to not plead to that now; is that correct?
DEFENDANT: Yes, sir.
On October 23, 2012, a recidivist trial was held, and the jury found that petitioner was the
same person who previously committed the two felonies alleged in the recidivist information. On
December 3, 2012, petitioner was sentenced to life in prison with the possibility of parole based
upon his status as a habitual offender for his malicious assault conviction, forty years of
incarceration for his second-degree murder conviction, and one to three years of incarceration for
his attempted second-degree murder conviction. The sentences were ordered to run
consecutively. This Court affirmed petitioner’s sentences following his direct appeal. See State v.
Cross, No. 13-0260, 2013 WL 5966968 (W.Va. Nov. 8, 2013)(memorandum decision).
Petitioner thereafter filed a petition for writ of habeas corpus. Following appointment of
counsel, petitioner filed an amended petition on August 31, 2016. In his amended petition,
petitioner alleged that the trial court was without jurisdiction to impose a recidivist life sentence
due to its failure to comply with the mandatory requirements of the recidivist statute, West
Virginia Code § 61-11-19. Specifically, petitioner maintained that he was not “duly cautioned,”
as required by the statute. On October 27, 2016, the circuit court denied petitioner’s amended
petition. It is from this order that petitioner appeals.
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This Court reviews appeals of circuit court orders denying habeas corpus relief under the
following standard:
“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.” Syllabus point 1, Mathena v.
Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).
Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).
On appeal, petitioner argues that he was not “duly cautioned” in accordance with the
requirements of West Virginia Code § 61-11-19, which deprived the circuit court of jurisdiction
to impose his recidivist life sentence and violated his due process rights. Petitioner argues further
that the record does not reflect the circuit court’s finding that he affirmatively expressed his
desire to remain silent. Finally, petitioner contends that the circuit erroneously employed a
harmless error analysis in concluding that, even assuming he was not duly cautioned, such failure
did not prejudice him.
West Virginia Code § 61-11-19 provides that
[i]t shall be the duty of the prosecuting attorney when he has knowledge of former
sentence or sentences to the penitentiary of any person convicted of an offense
punishable by confinement in the penitentiary to give information thereof to the
court immediately upon conviction and before sentence. Said court shall, before
expiration of the term at which such person was convicted, cause such person or
prisoner to be brought before it, and upon an information filed by the prosecuting
attorney, setting forth the records of conviction and sentence, or convictions and
sentences, as the case may be, and alleging the identity of the prisoner with the
person named in each, shall require the prisoner to say whether he is the same
person or not. If he says he is not, or remains silent, his plea, or the fact of his
silence, shall be entered of record, and a jury shall be impaneled to inquire
whether the prisoner is the same person mentioned in the several records. If the
jury finds that he is not the same person, he shall be sentenced upon the charge of
which he was convicted as provided by law; but if they find that he is the same, or
after being duly cautioned if he acknowledged in open court that he is the same
person, the court shall sentence him to such further confinement as is prescribed
by section eighteen of this article on a second or third conviction as the case may
be.
Further,
[i]t is well established in this State that the provisions of W.Va. Code [§] 61-11-19
[1943], including the requirement that the defendant, before he acknowledges his
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identity as the person who has been previously convicted, must be duly cautioned,
are mandatory and must be complied with fully for the imposition of a valid
sentence of further confinement under the statute.
State v. Cain, 178 W.Va. 353, 356, 359 S.E.2d 581, 584 (1987) (citing State ex rel. Beckett v.
Boles, 149 W.Va. 112, 118, 138 S.E.2d 851, 855 (1964)). The words “duly cautioned,”
with regard to former convictions and sentences before a valid judgment can be
imposed for an additional sentence as provided in Code, 61-11-18, as amended,
are fully complied with when the accused, after being convicted of the substantive
offense and before being sentenced thereon, is later brought before the court in the
same term and advised that the prosecuting attorney has filed a written
information informing the court of former convictions and sentences; and the
court then proceeds to advise the accused of the nature of each former offense and
of the time and place of each former sentence, and then after giving the accused
an opportunity to say whether he has any defense thereto, asks him if he is the
same person as was formerly convicted and sentenced. If he answers in the
affirmative, appropriate sentence may be pronounced in accordance with the
statute.
Syl. Pt. 4, in part, State ex rel. Mounts v. Boles, 147 W.Va. 152, 126 S.E.2d 393 (1962).
Petitioner first argues that he was not “duly cautioned” as required under West Virginia
Code § 61-11-19 and Boles. Petitioner contends that the circuit court’s failure to “perform this
procedural colloquy as a matter of fact constitutes a denial of due process because it leaves the
court without jurisdiction.” Petitioner, however, ignores our pronouncement that “the defendant,
before he acknowledges his identity as the person who has been previously convicted, must be
duly cautioned[.]” Cain, 178 W.Va. at 356, 359 S.E.2d at 584 (emphasis added). Petitioner
herein did not acknowledge his identity. Rather, he demanded that a jury be empaneled to
determine the issue of identity. Indeed, in every case cited by petitioner for the proposition that
he should have been duly cautioned, the defendant admitted his identity. Petitioner offers no
authority establishing that that the circuit court was obligated to comply with Syllabus Point 4 of
Boles prior to empaneling a jury to determine the issue of identity.
Next, citing Mounts v. Boles, 326 F.2d 186 (4th Cir. 1963), petitioner contends that he
was denied due process under the Fourteenth Amendments to the West Virginia and United
States Constitutions. In Mounts, the circuit court read to the defendant the recidivist information
without explaining the purpose of the information, the effect of the defendant’s affirmative
answers to the court’s questions, or that he had a right to stand silent and empanel a jury. 326
F.2d at 187. The circuit court asked the defendant if he was the same person convicted of the
offenses set forth in the information, and the defendant responded in the affirmative. Id. The
defendant, “[w]ithout more,” was then sentenced to life imprisonment. Id. The Mounts Court
reiterated that “if the prisoner was not duly cautioned prior to his admission of his identity and
prior to the imposition of sentence then the failure to do so denied to the prisoner due process of
law.” Id. at 188 (emphasis added). Because the defendant was not “informed of the grave
consequences of his answers to the questions concerning his identity,” and because “essential
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fairness dictates that the disposition of any issue determinative of the legal power of the tribunal
to inflict the additional [recidivist] punishment must be accompanied by adequate notice to the
accused that the issue is before the Court, followed by an opportunity to be heard[,]” the Mounts
Court found that the defendant therein had been deprived due process of law. Id. Thus, it
continued,
[t]o satisfy the minimum requirements of fundamental fairness under the
circumstances the prisoner should have been told of his right to admit, or to deny,
or remain silent and have the issue of his identity submitted to a jury.
Furthermore, he should have been told that the consequences of his admissions
would be a mandatory life sentence.
Id. (emphasis added.)
Again, petitioner fails to offer support for the argument that a denial of due process
results when a defendant stands silent and proceeds to trial on the issue of identity, as he did in
this case. Accordingly, we find no error in the circuit court’s conclusion that petitioner’s due
process rights were not violated.
Petitioner also argues that, at the arraignment on his recidivist information, the circuit
court failed to ask him directly whether he wished to remain silent, and he did not state on the
record that he wished to remain silent. Petitioner acknowledges that the circuit court stated,
“[t]hat’s kind of funny under the law we say you remain silent but you have to say I remain
silent[,]” but contends that the court’s failure to require him to say the words, “I remain silent,”
amounts to error. Petitioner also argues that the circuit court’s subsequent question, “So you wish
to not plead to that now; is that correct?” and his response of “Yes, sir” “is not the plea
articulated by the mandatory procedures in West Virginia Code § 61-11-19.” In short, petitioner
argues that the circuit court’s failure to require him to say specifically that he is not the person
identified in the recidivist information or that he “remains silent” deprived the circuit court of
jurisdiction to impose a recidivist life sentence.
As with petitioner’s other contentions, he fails to set forth any law to support his
argument that specific words be used by either the court or defendant where a defendant chooses
to remain silent on the issue of identity. As such, we find no error in the circuit court’s
conclusion that the above-quoted exchange between petitioner and the circuit court at his
arraignment satisfied West Virginia Code § 61-11-19’s requirement that the court inquire into
petitioner’s identity and that petitioner be entitled to stand silent.
Petitioner’s final contention is that the circuit court’s harmless error analysis regarding
any failure to duly caution him is improper and warrants reversal.1 Indeed, we held in Syllabus
Point 1 of Holcomb v. Ballard, 232 W.Va. 253, 752 S.E.2d 284 (2013) that “[t]he procedural
recidivist requirements of W.Va. Code § 61-11-19 (1943) . . . are mandatory, jurisdictional, and
not subject to harmless error analysis.” But, the circuit court’s primary basis for denying his
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In its order, the circuit court stated that “assuming [it] erred and did not duly caution
him, such error did not result in a violation of [petitioner’s] constitutional rights.”
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petition for writ of habeas corpus was that he “never made an admission to prior convictions
without being duly cautioned[; therefore,] the trial court had jurisdiction to impose the enhanced
penalty and did not violate [petitioner’s] right to due process.” Because we may affirm a
judgment for any just reason appearing from the record, we find that the circuit court’s
alternative, but erroneous, basis for denying petitioner’s habeas petition does not warrant reversal
of the circuit court’s order. See Syl. Pt. 3, Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466
(1965) (“This Court may, on appeal, affirm the judgment of the lower court when it appears that
such judgment is correct on any legal ground disclosed by the record, regardless of the ground,
reason or theory assigned by the lower court as the basis for its judgment.).
For the foregoing reasons, we affirm the circuit court’s October 27, 2016, order denying
petitioner’s amended petition for writ of habeas corpus.
Affirmed.
ISSUED: March 12, 2018
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Justice Elizabeth D. Walker
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