FILED
August 31, 2022
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
STATE OF WEST VIRGINIA OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia,
Plaintiff Below, Respondent
vs.) No. 21-0605 (Kanawha County 17-F-335)
Todd Wayne Boyes,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Todd Wayne Boyes, self-represented, appeals the May 7, 2021, order of the
Circuit Court of Kanawha County denying his motion to correct an illegal sentence. The State of
West Virginia, by counsel Patrick Morrisey and Andrea Nease Proper, filed a response and a
supplemental appendix in support of the circuit court’s order. Petitioner filed an amended brief.
Respondent filed a second response. On appeal, petitioner argues that the circuit court erred in
denying his motion to correct an illegal sentence.
The 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 May of 2017, a six-count indictment was returned against petitioner. Four months later,
petitioner pled guilty to three felony counts charged: fleeing with reckless indifference, fleeing
from police causing bodily injury, and possession of a stolen vehicle. After accepting petitioner’s
guilty pleas, the circuit court sentenced petitioner in December of 2017 to the statutorily prescribed
terms of incarceration, which amounted to an aggregate term of not less than five nor more than
twenty years of incarceration, and dismissed the remaining counts. All sentences were ordered to
run consecutively.
In February of 2021, petitioner, while self-represented, filed a motion to correct an illegal
sentence, arguing that the fleeing felonies were “of the same nature during the same transaction”
and violated the prohibition against double jeopardy. Without holding a hearing, the circuit court
denied petitioner’s motion. Petitioner now appeals the circuit court’s May 7, 2021, order denying
his motion to correct an illegal sentence.
1
On appeal, petitioner argues that the circuit court abused its discretion when it denied his
motion to correct an illegal sentence. According to petitioner, two of his convictions violate his
constitutional right against double jeopardy, specifically the prohibition against multiple
punishments for the same offense. Petitioner argues that the offenses of fleeing with reckless
indifference and fleeing from police causing bodily injury were part of the same transaction that
occurred on February 25, 2017, and thus were not separate offenses. Petitioner also argues that the
court erred by ordering the sentences for these offenses to run consecutively because the two
offenses are “greater and lesser included offenses,” and the protection against double jeopardy
“forbids cumulative punishment” in this instance. In support, petitioner cites the following: “The
Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations
by the simple expedient of dividing a single crime into a series of temporal or spatial units.” Brown
v. Ohio, 432 U.S. 161, 169 (1977). 1 He then argues that the legislature “took the core crime of
flight [in West Virginia Code] § 61-5-17(e) then divided ‘a single crime into a series of temporal
or spatial units’” and goes on to explain that the various subsections of West Virginia Code § 61-
5-17 share some common elements. 2
This Court has held that
1
Petitioner mistakenly cites Braverman v. United States, 317 U.S. 49 (1942) for the quoted
text.
2
Although, as discussed below, we find that petitioner’s double jeopardy arguments have
been waived, we nonetheless find that he was not given “multiple punishments for the same
offense.” Syl. Pt. 1, State v. Gill, 187 W. Va. 136, 416 S.E.2d 253 (1992). Such a claim is “resolved
by determining the legislative intent as to punishment.” Id. at 143, 416 S.E.2d at 260.
If no such clear legislative intent can be discerned, then the court should
analyze the statutes under the test set forth in Blockburger v. United States, 284
U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), 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 legislature intended to create separate
offenses.
Id. at 138, 416 S.E.2d at 255, Syl. Pt. 8. Below, the statutes at issue are subsections (h) and (f) of
West Virginia Code § 61-5-17. As properly recognized by the lower court, because there is no
clear expression by the legislature that these two offenses were intended to be separate and distinct
offenses, the Blockburger test is applied. Petitioner is correct that the two subsections above share
three elements of proof: 1) fleeing in a vehicle, 2) from law enforcement officers, 3) after the
officers have given a clear visual or audible signal directing the defendant to stop. However, the
subsections each clearly contain an element of proof that the other does not. Subsection (f) requires
the vehicle to be operated in a manner showing reckless indifference to the safety of others while
subsection (h) requires bodily injury resulting from the flight. Contrary to petitioner’s arguments,
these two elements of proof are different, and thus, there is a presumption that the legislature
intended the offenses to be separate and distinct. Accordingly, petitioner was punished for separate
offenses, and his constitutional protections against double jeopardy were not violated.
2
“[i]n reviewing the findings of fact and conclusions of law of a circuit court
concerning an order on a motion made under Rule 35 of the West Virginia Rules
of Criminal Procedure, we apply a three-pronged standard of review. We review
the decision on the Rule 35 motion under an abuse of discretion standard; the
underlying facts are reviewed under a clearly erroneous standard; and questions of
law and interpretations of statutes and rules are subject to a de novo review.” Syl.
Pt. 1, State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).
Syl. Pt. 1, State v. Marcum, 238 W. Va. 26, 792 S.E.2d 37 (2016). Additionally, “[t]he court may
correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner
within the time period provided herein for the reduction of sentence.” W. Va. R. Crim. P. 35(a).
We find that petitioner’s double jeopardy claim was waived by the entry of his knowing
and voluntary guilty plea. This Court has held that
[i]f a guilty plea is shown to have been intelligently and voluntarily entered
into, generally it cannot be directly or collaterally attacked on double jeopardy
grounds. One exception to this rule permits a defendant to show that the face of the
record in the case establishes that a court lacked power to convict or sentence the
defendant.
Syl. Pt. 2, State v. Coles, 234 W. Va. 132, 763 S.E.2d 843 (2014). In Coles, the defendant pled
guilty to obtaining money by false pretenses and fraudulent scheme. Id. at 134, 763 S.E.2d at 845.
The defendant filed a motion to correct an illegal sentence under Rule 35(a) of the West Virginia
Rules of Criminal Procedure, arguing, for the first time, that the two felony convictions violated
his protections against double jeopardy. Id. at 135, 763 S.E.2d at 846. To determine whether the
defendant had waived his double jeopardy claim, the Court analyzed the following holding from
United States v. Broce, 488 U.S. 563 (1989):
A plea of guilty and the ensuing conviction comprehend all of the factual and legal
elements necessary to sustain a binding, final judgment of guilt and a lawful
sentence. Accordingly, when the judgment of conviction upon a guilty plea has
become final and the offender seeks to reopen the proceeding, the inquiry is
ordinarily confined to whether the underlying plea was both counseled and
voluntary. If the answer is in the affirmative then the conviction and the plea, as a
general rule, foreclose the collateral attack. There are exceptions where on the face
of the record the court had no power to enter the conviction or impose the sentence.
Broce, 488 U.S. 563, 569 (1989). The Coles Court further noted that the exception referenced in
Broce—i.e., where a court lacks power—includes where “judged on its face—the charge is one
which the State may not constitutionally prosecute.” Coles, 234 W. Va. at 136, 763 S.E.2d at 847
(quoting Broce, 488 U.S. at 575).
Relying on Broce, this Court held that “if a guilty plea is shown to have been intelligently
and voluntarily entered into, generally it cannot be directly or collaterally attacked on double
3
jeopardy grounds.” Coles, 234 W. Va. at 136, 763 S.E.2d at 847. Having found that petitioner was
limited to arguing that his guilty plea had not been entered into intelligently and voluntarily and
that he made no such showing, the Court in Coles determined that the defendant had waived this
double jeopardy claim. Id. at 137, 763 S.E.2d at 848.
Like the defendant in Coles, petitioner pled guilty to offenses which he later claimed
violated his protection against double jeopardy via a motion to correct an illegal sentence, and he
failed to make a showing that his guilty pleas were not intelligently and voluntarily made. 3 Also
like the defendant in Coles, petitioner does not argue that the court did not have the power to enter
a conviction or impose a sentence for fleeing with reckless indifference and fleeing from police
causing bodily injury, nor do we find that the limited record on appeal reveals a lack of jurisdiction
over these crimes. As such, we find that petitioner waived his double jeopardy claim and we will
not consider it on appeal. 4 See also State v. Proctor, 227 W. Va. 352, 364, 709 S.E.2d 549, 651
(2011) (“A knowing and voluntary guilty plea waives all antecedent, nonjurisdictional defects. A
double jeopardy claim is not a ‘true’ jurisdictional issue (one that renders the court powerless to
consider the case) and for that reason can be subject to waiver under appropriate circumstances.”)
(quoting State v. Greene, 196 W. Va. 500, 507 n.1, 473 S.E.2d 921, 928 n.1 (1996)), overruled on
other grounds by State v. Marcum, 238 W. Va. 26, 792 S.E.2d 37 (2016).
For the foregoing reasons, the circuit court’s May 7, 2021, order is hereby affirmed.
Affirmed.
ISSUED: August 31, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
3
The supplemental appendix contains petitioner’s guilty pleas, which outline the waiver of
his various constitutional rights, pre-trial defects, and all non-jurisdictional defects. Petitioner
acknowledged his understanding of these waivers and signed every page for each guilty plea.
4
We acknowledge that the circuit court resolved petitioner’s Rule 35(a) motion on grounds
other than waiver. This Court is not bound by that analysis, however, and “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.” Syl. Pt. 3, Barnett v. Wolfolk, 149 W. Va. 246, 140 S.E.2d 466 (1965).
4