FILED
November 17, 2023
STATE OF WEST VIRGINIA
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
State of West Virginia,
Plaintiff Below, Respondent,
vs.) No. 22-0421 (Mineral County 19-F-77)
Clinton Frederick Knotts,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Clinton Frederick Knotts appeals the April 7, 2022, sentencing order of the
Circuit Court of Mineral County. After a jury trial, petitioner was sentenced to an indeterminate
term of eight to thirty-five years in prison upon his convictions for burglary, grand larceny,
conspiracy to commit burglary, conspiracy to commit grand larceny, and misdemeanor destruction
of property. Respondent State of West Virginia filed a response in support of the circuit court’s
order. 1 After a careful review of the parties’ briefs, the appendix record, and the applicable law,
we affirm, in part, reverse, in part, and remand for further proceedings consistent with this opinion.
See W. Va. R. App. P. 21(a). This case satisfies the “limited circumstances” requirement and is
appropriate for a memorandum decision rather than an opinion. W. Va. R. App. P. 21(d).
On July 21, 2019, Mineral County 9-1-1 received a suspicious vehicle complaint about a
white Chevrolet car parked for several hours in the road in front of a home owned by James and
Jean Nutter (the victims) in Fountain, West Virginia. The caller stated petitioner’s co-defendant
below, Tammy Gray, was sitting in the vehicle. 2 Lieutenant Chris Leatherman, Captain J.J.
Wingler, and Deputy Logan Talley of the Mineral County Sheriff’s Department responded. When
they arrived at the victims’ home, the car was gone, but the officers noticed “items piled up next
to the driveway.” The home had outbuildings and the doors of those outbuildings “were standing
ajar.” The officers also noticed the front door to the residence was damaged and appeared to have
been forced open.
1
Petitioner appears by counsel J. Brent Easton. Respondent appears by Attorney General
Patrick Morrisey and Assistant Attorney General Lara K. Bissett.
2
Petitioner’s co-defendant, Tammy Gray, filed a separate appeal with this Court which
was decided in State v. Tammy Gray, No. 22-0082, 2023 WL 4030074 (W. Va. June 15, 2023)
(memorandum decision).
1
After the officers did a walk-through of the victims’ home and outbuildings, one officer
remained to inventory and take photographs of the items strewn around the property. The other
two officers drove to Gray’s home, where they observed a white 2009 Chevrolet Impala
“completely packed full of items.” The officers knocked on Gray’s door for several minutes while
yelling “Sheriff’s Office,” but received no response. After “several minutes” passed, the officers
entered Gray’s home through an unlocked door, believing they had authority to do so because they
possessed two warrants to search Gray’s residence for evidence of two previous unrelated
burglaries.
Inside Gray’s home, officers found petitioner and Gray asleep on a couch, and petitioner
was holding a trail camera. The officers woke them up and searched them, finding “several pieces
of jewelry” in petitioner’s pocket. Both the trail camera and the jewelry were later identified by
the victims as their property.
The officers were unsure whether the existing search warrants gave them authority to
search the Chevrolet for evidence relevant to the victims’ burglary, so they impounded the vehicle
and obtained a warrant to search it. The victims were on vacation in Virginia and could not
immediately provide police with a comprehensive list of missing property. Therefore, the police
requested a search warrant for categories of items based on logical inference from information
known to them and the items strewn around the victims’ driveway which pointed to the
perpetrators’ interest in landscaping projects. The search warrant listed the property to be seized
as: jewelry, hunting equipment, items used for the assembly and manufacture of a garden pond,
landscaping equipment or supplies, a hose, and “any other item that was stolen from the [Nutter]
residence.”
Petitioner was subsequently indicted for burglary, grand larceny, conspiracy to commit
burglary, conspiracy to commit grand larceny, and misdemeanor destruction of property. Petitioner
filed a motion to suppress evidence seized during the search of Gray’s home. 3 At the suppression
hearing, petitioner’s counsel argued that none of the three search warrants described the property
to be seized with the particularity required by article III, section 6 of the West Virginia Constitution
and the Fourth Amendment to the United States Constitution. After hearing the testimony of the
witnesses and arguments of counsel, the court disagreed, finding that all three warrants were “fine”
and that “there’s only so many ways I can describe a blue box, a blue tote, or a green garden hose.”
At petitioner’s trial on August 26, 2021, Capt. Wingler testified about his investigation and
detailed the evidence of burglary at the victims’ home. Lt. Leatherman and Dep. Talley described
the jewelry and trail camera they observed on petitioner’s person when they entered Gray’s
residence, as well as the items seized from Gray’s vehicle pursuant to the search warrant. Lt.
Leatherman testified he took photographs of the evidence seized from petitioner and co-defendant
Gray. One of the victims viewed photographs of the jewelry and other property found in
petitioner's possession and identified the property as hers. The court admitted the following
exhibits into evidence: photographs of the victims’ property sitting in their driveway, photographs
of the property seized from petitioner and Gray, a property receipt itemizing the seized property,
3
Petitioner testified that he had been living in Gray’s home for four months prior to the
search.
2
and a 911 computer assisted dispatch report of the initial call about a suspicious vehicle parked in
front of the victims’ home. After deliberation, the jury ultimately convicted petitioner of all
charges.
On August 20, 2021, the State filed a recidivist information alleging that petitioner had a
prior felony conviction. Petitioner did not have a hearing on this recidivist information until his
sentencing hearing on April 7, 2022. At sentencing, the court found petitioner to be the same
person who was previously convicted of burglary in 2012 and applied a recidivist enhancement to
his sentences. This appeal followed.
I. Recidivist Enhancement.
In his first assignment of error, petitioner argues the circuit court lacked jurisdiction to
enhance his sentence under the recidivist statute, West Virginia Code § 61-11-19, because he was
not arraigned on the recidivist information within the next term of court in which he was convicted.
When the State files a recidivist information, the court
shall, before expiration of the next term at which such person was convicted, cause
such person or prisoner to be brought before it, and upon an information filed by
the prosecution attorney, setting forth the records of conviction and sentence … and
alleging the identity of the prison with the person named in each, shall require the
prisoner to say whether he or she is the same person or not.
W. Va. Code § 61-11-19 (2020) (emphasis added). 4 “The procedural recidivist requirements of W.
Va. Code § 61-11-19 . . . are mandatory, jurisdictional, and not subject to harmless error analysis.”
Syl. Pt. 1, Holcomb v. Ballard, 232 W. Va. 253, 752 S.E.2d 284 (2013). 5 Further, recidivist
proceedings “‘are wholly statutory. In such proceedings, a court has no inherent or common law
power or jurisdiction. Being in derogation of the common law, such statutes are generally held to
require a strict construction in favor of the prisoner.’ State ex rel. Ringer v. Boles, 151 W. Va. 864,
871, 157 S.E.2d 554, 558 (1967).” Holcomb, 232 W. Va. at 253, 752 S.E.2d at 285, Syl. Pt, 2, in
part (citing Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981)).
4
Petitioner’s crimes occurred in 2019 and the legislature amended West Virginia Code §
61-11-19 in 2020. Relevant to this appeal, the previous version of the statute provided that the
“court shall, before expiration of the term at which such person was convicted, cause such person
or prisoner to be brought before it . . . .” W. Va. Code § 61-11-19 (1943) (emphasis added). In
their briefs before this Court, the parties agree that W. Va. Code § 61-11-19 (2020) applies in this
case. We find it unnecessary to determine which version of W. Va. Code § 61-11-19 applies to
this case because the State did not comply with either version.
5
The cases cited in this opinion analyze the previous version of W. Va. Code § 61-11-19,
but as explained herein, this does not affect our analysis under this set of facts.
3
In this case, petitioner was tried and convicted during the May 2021 term of court 6, but he
was not arraigned on the recidivist information until April 7, 2022, during the January 2022 term
of court. This was two terms of court after petitioner was convicted. At sentencing, petitioner’s
counsel objected to imposition of a recidivist enhancement, stating “we are beyond the time that
the recidivism statute permits [petitioner] to be recidivised.” Because petitioner was not arraigned
on the recidivist information until after the next term of court at which he was convicted, the court
erred when it enhanced petitioner’s sentence. See W. Va. Code § 61-11-19; W. Va. R. Tr. Ct. 2.21;
Holcomb, 232 W. Va. at 253, 752 S.E.2d at 285, Syl. Pts. 1 and 2, Holcomb. Thus, we reverse the
circuit court’s sentencing order as it pertains to this issue and remand for resentencing with
instructions to vacate the recidivist sentence enhancements.
II. Double Jeopardy.
In his second assignment of error, petitioner argues his convictions for two counts of
conspiracy – conspiracy to commit burglary and conspiracy to commit grand larceny – violate
double jeopardy. In support of this argument, petitioner contends the evidence at trial demonstrated
the existence of only one agreement between petitioner and his co-defendant, i.e., to burglarize the
victims’ home with the intent to steal items found therein. In other words, petitioner argues the
scope of the conspiracy to commit grand larceny was wholly subsumed within the conspiracy to
commit burglary. See State v. Tammy Gray, No. 22-0082, 2023 WL 4030074, at *8 (W. Va. June
15, 2023) (memorandum decision). Petitioner admits that he failed to timely object to this issue
but asks this Court to review this issue on the merits. We construe this as a request to review for
plain error.
“This court’s application of the plain error rule in a criminal prosecution is not dependent
upon a defendant asking the Court to invoke the rule. We may, sua sponte, in the interest of justice,
notice plain error.” Syl. Pt. 1, State v. Myers, 204 W. Va. 449, 513 S.E.2d 676 (1998). “To trigger
application of the ‘plain error’ doctrine, there must be (1) an error; (2) that is plain; (3) that affects
substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the
judicial proceeding.’” Syl. Pt. 4, State v. Wilson, 244 W. Va. 370, 853 S.E.2d 610 (2020) (citations
omitted).
The plain error doctrine of W. Va. R. Crim. P. 52(b), whereby the court may
take notice of plain errors or defects affecting substantial rights although they were
not brought to the attention of the court, is to be used sparingly and only in those
circumstances in which a miscarriage of justice would otherwise result.
Id. at 372, 853 S.E.2d at 612, Syl. Pt. 3 (citations omitted).
Petitioner frames this assignment of error solely as one involving the Double Jeopardy
Clause of the West Virginia Constitution which “prohibits multiple punishments for the same
offense.” Syl. Pt. 2, in part, State v. Kent, 223 W. Va. 520, 678 S.E.2d 26 (2009); see W. Va. Const.
art. III, § 5 (“nor shall any person, in any criminal case . . . be twice put in jeopardy of life or liberty
6
See W. Va. R. Tr. Ct. 2.21 (providing that the terms of court for Mineral County are “on
the second Tuesday in January, and the first Tuesday in May and September”).
4
for the same offense.”). Thus, our inquiry in this case is whether petitioner received multiple
punishments for the same offense. Petitioner’s co-defendant Tammy Gray raised an identical
double jeopardy argument in her appeal; finding plain error, this Court vacated one of Gray’s
conspiracy convictions. Gray, 2023 WL 4030074, at *7-10. Therefore, in the interest of justice,
we review petitioner’s double jeopardy argument in this case for plain error.
The first issue to be determined on plain error review is whether the circuit court committed
error in sentencing petitioner for two separate conspiracies. See Wilson, 244 W. Va. at 372, 853
S.E.2d at 612, Syl. Pt. 4. “The double jeopardy clause of the Fifth Amendment prohibits the
prosecution of a single conspiracy as two or more conspiracies under a general conspiracy statute
merely because two separate substantive crimes have been committed.” Syl. Pt. 7, State v. Johnson,
179 W. Va. 619, 371 S.E.2d 340 (1988); see State v. Judy, 179 W. Va. 734, 737, 372 S.E.2d 796,
799 (1988) (holding that “as a matter of law that the defendant’s multiple conspiracy convictions
were improper under Johnson.”). To determine whether single or multiple conspiracy agreements
exist, this Court applies a “totality of circumstances test” that examines the following factors:
(1) time; (2) persons acting as co-conspirators; (3) the statutory offenses charged in
the indictments; (4) the overt acts charged by the government or any other
description of the offenses charged which indicate the nature and the scope of the
activity which the government sought to punish in each case; and (5) places where
the events alleged as part of the conspiracy took place.
Johnson, 179 W. Va. at 622, 371 S.E.2d at 343, Syl. Pt. 8, in part. Applying the totality of
circumstances test to this case, our review of the record on appeal discloses no evidence that
petitioner and Ms. Gray entered into two separate conspiracies. See Gray, 2023 WL 4030074, at
*8-9. Viewing the evidence in the light most favorable to the State, only one agreement was proven
– an agreement to burglarize the victims’ home and outbuildings and steal the contents. The fact
that this agreement constituted two distinct crimes, burglary, and larceny, “cannot transform one
agreement into two agreements under the conspiracy statute.” Id. at *9 (citing Johnson, 179 W.
Va. at 630-31, 371 S.E.2d at 351-52). The following circumstances of the two alleged conspiracies
are substantially the same: time, persons acting as co-conspirators, and place where the
conspiratorial events took place. And the statutory substantive offenses charged – burglary and
larceny – were the same as the overt acts charged in the two counts of conspiracy. Id.
Consequently, we find petitioner’s convictions for two counts of conspiracy constitutes error.
The second prong of the plain error test requires this Court to evaluate whether the error in
this case was “plain.” Syl. Pt. 4, in part, State v. Wilson, 244 W. Va. 370, 853 S.E.2d 610 (2020)
(citations omitted). It is firmly established that, in the absence of multiple agreements, petitioner
can only be sentenced for one conspiracy. Johnson, 179 W. Va. at 630, 371 S.E.2d at 351. In this
case, the State did not present any evidence that the petitioner and Ms. Gray entered into more than
one agreement. See Gray, 2023 WL 4030074, at *9. Thus, we find petitioner’s sentence for two
counts of conspiracy to be an error that is plain.
The third prong of the plain error test requires this Court to determine whether the
petitioner’s conviction and sentence for two conspiracies, when only one existed, affected
petitioner’s “substantial rights.” Wilson, 244 W. Va. at 372, 853 S.E.2d at 612, Syl. Pt. 3, in part.
5
In this case, petitioner suffered multiple punishments for conspiracy when there was only one
agreement to burglarize the victims’ home and steal personal property. Given the constitutional
prohibition against multiple punishments for the same offense, we conclude that the circuit court’s
error in sentencing petitioner twice for the same conspiracy affected petitioner’s substantial right
to be protected from double jeopardy. See id. at 372, 853 S.E.2d 612, Syl. Pt. 4.
The final prong of the plain error test requires this Court to analyze whether the circuit
court’s error seriously affected “the fairness, integrity, or public reputation of the judicial
proceeding.” Id. at 372, 853 S.E.2d at 612, Syl. Pt. 3. As discussed above, we have found that there
was only one agreement reflected in the record on appeal and so two conspiracy convictions for
one agreement to commit both burglary and larceny violates the Double Jeopardy Clause. See W.
Va. Const. art. III, § 5; Johnson, 179 W. Va. at 622, 371 S.E.2d at 343, Syl. Pt. 7; Gray, 2023 WL
4030074, at *9-10. Further, the consecutive sentences imposed by the trial court violate well-
established precedent that “the Constitution was designed as much to prevent the criminal from
being twice punished for the same offense as being twice tried for it.” Ex parte Lange, 85 U.S.
163, 173 (1873). Considering the foregoing authorities, we conclude the final prong of the plain
error test is satisfied because petitioner was prosecuted, convicted, and punished for two counts of
conspiracy, where the evidence at trial demonstrated the existence of only one agreement between
the conspirators.
For all these reasons, we reverse the circuit court insofar as it sentenced petitioner on two
counts of conspiracy and remand with instructions to vacate one conspiracy conviction, render a
judgment of not guilty on that charge, and resentence petitioner accordingly.
III. Search and Seizure.
In his third and final assignment of error, petitioner alleges the circuit court erred in denying
his motion to suppress the evidence gathered by police pursuant to three search warrants. When
reviewing the circuit court’s ruling on a motion to suppress, the “court’s factual findings are
reviewed for clear error,” and the court’s “ultimate determination as to whether a search or seizure
was reasonable . . . is a question of law that is reviewed de novo.” Syl. Pts. 1 and 2, in part, State
v. Payne, 239 W. Va. 247, 800 S.E.2d 833 (2016) (quoting Syl. Pts. 1 and 2, in part, State v. Lacy,
194 W. Va. 104, 468 S.E.2d 719 (1996)). Petitioner argues the police seized property pursuant to
two search warrants, but the warrants did not describe the property with necessary particularity.
More specifically, petitioner contends that because the warrants contained “generic terms”
describing “items commonly found in any home,” they had the effect of allowing a “largely
general” search. See, e.g., Lacy, 196 W. Va. at 111, 468 S.E.2d at 726 (reasoning that “the police
may not use an initially lawful search as a pretext and means to conduct a broad warrantless
search.”). For this reason, petitioner argues the circuit court erred in its decision to admit the seized
items into evidence. 7
7
Petitioner also claims “the court appeared to admit [the seized evidence] under a ‘plain
view’ exception” to the warrant requirement. But the circuit court’s order denying petitioner’s
motion to suppress holds “the search warrants were properly issued and properly executed,” and
does not rely upon the plain view exception. “[H]aving held that a court speaks through its orders,
6
We find petitioner’s argument fails for several reasons. First, prior to the burglary in
question, the officers had two unexecuted warrants to search Gray’s residence. Gray was a suspect
in two burglaries in Mineral County that occurred before the day in question. None of the items
described in these warrants had anything to do with the burglary of the victims’ residence, but they
gave the officers the right to enter Gray’s home when no one responded after they knocked and
announced their presence. See Gray, 2023 WL 4030074, at *11. Second, petitioner does not allege
an unlawful entry into Gray’s home because the warrants lacked particularity, or for any other
reason. Third, with respect to the search warrant for the vehicle, there is no support in our precedent
for the proposition that items commonly found in homes must be described in a search warrant
with some enhanced layer of particularity or additional descriptors. Id. To the contrary, the law
requires only that
[i]n determining whether a specific warrant meets the particularity
requirement, a circuit court must inquire whether an executing officer reading the
description in the warrant would reasonably know what items are to be seized. In
circumstances where detailed particularity is impossible, generic language is
permissible if it particularizes the types of items to be seized.
Lacy, 196 W. Va. at 107, 468 S.E.2d at 722. We find categories of items listed in the vehicle search
warrant are sufficient to meet these requirements. The categories were developed by the officers
based upon their investigation at the victims’ home, and the property in petitioner’s possession
during the protective frisk. Thus, the officers “reasonably knew” what items they were looking for
during the search. Given the facts and circumstances of this case, we cannot say the circuit court’s
findings to this effect were clearly erroneous. Further, we find any alleged lack of particularity in
the search warrants for Gray’s home is irrelevant because petitioner does not claim the officers’
entry into the home was unlawful and no evidence seized pursuant to those warrants was entered
into evidence at petitioner’s trial. We agree with and affirm the circuit court’s conclusion that the
description of items to be seized from the vehicle was constitutionally sufficient and further find
that it was based upon adequate factual findings. Petitioner is not entitled to relief based on this
assignment of error.
IV. Conclusion
For the foregoing reasons, the order of the circuit court is affirmed in part, reversed in part,
and remanded with instructions to vacate the recidivist sentence enhancements, vacate one of
petitioner’s conspiracy convictions, render a judgment of not guilty on that vacated charge, and
resentence accordingly.
ISSUED: November 17, 2023
we are left to decide this case within the parameters of the circuit court’s order.” State v. White,
188 W. Va. 534, 536 n.2, 425 S.E.2d 210, 212, n.2 (1992); State ex rel. Erlewine v. Thompson,
156 W. Va. 714, 718, 207 S.E.2d 105, 107 (1973) (“A court of record speaks only through its
orders[.]”).
7
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
8