                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS


                                                                                  FILED
                                                                               June 3, 2016
State of West Virginia,                                                        RORY L. PERRY II, CLERK
Plaintiff Below, Respondent                                                  SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

vs) No. 15-1003 (Wood County 03-F-180)

John B. Christian,
Defendant Below, Petitioner


                                MEMORANDUM DECISION

       Petitioner John B. Christian, pro se, appeals the September 15, 2015, order of the Circuit
Court of Wood County denying his motion to correct an illegal sentence pursuant to Rule 35(a) of
the West Virginia Rules of Criminal Procedure. Respondent State of West Virginia, by counsel
Zachary Aaron Viglianco, filed a summary response, and petitioner filed a reply.

        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.

        On September 23, 2003, petitioner was indicted for first degree murder and unlawful
possession of a firearm. On March 4, 2005, petitioner entered into a plea agreement pursuant to
which he agreed to plead guilty to second degree murder and admitted to being a recidivist.
Petitioner admitted that he was the same person “who was previously convicted of the felony of
Aggravated Assault in the Circuit Court of Pinellas County, State of Florida, on or about the 27th
day May, 1983.” In exchange, the State agreed not to pursue the firearm charge. At the plea
hearing, petitioner’s attorney advised the circuit court that petitioner was accepting the plea
agreement because it allowed him to avoid a recidivist life sentence pursuant to West Virginia
Code § 61-11-18(c). Instead, petitioner pled guilty to having been once previously convicted of a
felony offense pursuant to West Virginia Code § 61-11-18(a) which would enhance his sentence
only by five years. Petitioner confirmed that this was the agreement with the State:

               THE COURT: . . . Is the State of West Virginia agreeing to do
               anything else, other than that?

                                                1
               PETITIONER: Not to pursue any recidivist against me, except what’s in here.

               THE COURT: Except for the one felony conviction?

               PETITIONER: Yes, sir.

        Following the colloquy with petitioner in which the circuit court undertook pursuant to
Call v. McKenzie, 159 W.Va. 191, 220 S.E.2d 665 (1975), the court found that “[petitioner] has
knowingly, intelligently, voluntarily entered into the Plea Agreement; that [petitioner] knows and
understands the terms and conditions of the Plea Agreement and the effect upon him of entering
into the plea.” The circuit court further found that “[petitioner] has freely, knowingly, intelligently,
and waived his constitutional rights, entered his guilty plea, and pled guilty[.]” The circuit court
accepted petitioner’s guilty pleas as to both the second degree murder charge and the recidivist
information. The circuit court subsequently sentenced petitioner to forty years of incarceration for
the murder conviction with an additional five years pursuant to West Virginia Code § 61-11-18(a)
at a May 24, 2005, sentencing hearing. Petitioner appealed the circuit court’s sentencing order.
This Court refused petitioner’s appeal on May 11, 2006.

        On August 21, 2015, petitioner filed a motion to correct an illegal sentence pursuant to
Rule 35(a) on the ground that the enhancement of his sentence was not proper because the
procedures set forth in West Virginia Code § 61-11-19 were not followed.1 The circuit court
denied petitioner’s motion in an order entered September 15, 2015. In its order, the circuit court
ruled, as follows:

               What [petitioner] fails to state in his Motion is the enhancement of his
       sentence was part of a written Plea Agreement that he accepted. A copy of the Plea
       Agreement is attached to this Order. As is shown by the Plea hearing transcript,
       which is part of the record in this case (the change of plea hearing occurring on
       March 4, 2005), the fact that a recidivist information was going to be filed, and that
       he would have his sentence enhanced accordingly, was clearly discussed at several
       points in the hearing.[2]

               Further, after going through the plea colloquy, the Court found that
       [petitioner] made a knowing and intelligent waiver of his rights and that he
       knowingly and intelligently entered into the Plea Agreement.



       1
         While West Virginia Code § 61-11-18 contains the recidivist statute’s substantive
provisions, West Virginia Code § 61-11-19 sets forth the procedural requirements for imposing a
recidivist sentence.
       2
         We note that the plea agreement, the March 4, 2005 plea hearing transcript, and the
recidivist information are included in the record on appeal and have been reviewed by this Court.

                                                   2

               Based upon a review of the change of plea hearing and the record in this
       case, [petitioner]’s pro se Motion to Correct Illegal Sentence Under Rule 35(a) is
       ORDERED Denied.

        Petitioner now appeals the circuit court’s September 15, 2015, order denying his motion to
correct an illegal sentence pursuant to Rule 35(a). In Syllabus Point 1 of State v. Head, 198 W.Va.
298, 480 S.E.2d 507 (1996), we set forth the pertinent standard of review:

       In 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.

       “The procedural recidivist requirements of [West Virginia] Code § 61-11-19 (1943) (Repl.
Vol. 2010) 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). However, a defendant may waive a
requirement of West Virginia Code § 61-11-19. State v. Plymail, No. 14-0016, 2015 WL 7628723,
at *8 (W.Va. Nov. 20, 2015) (memorandum decision) (citing State v. Crabtree, 198 W.Va. 620,
627, 482 S.E.2d 605, 612 (1996)).3

       On appeal, petitioner contends that the procedural requirements of West Virginia Code §
61-11-19—and, accordingly, his due process rights—were violated. West Virginia Code §
61-11-19 provides, in pertinent part, as follows:

       It 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 impanelled 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

       3
         State v. Plymail, No. 14-0016, 2015 WL 7628723, at *8 (W.Va. Nov. 20, 2015)
(memorandum decision), involved application of the invited error rule which is “a branch of the
doctrine of waiver.” (quoting State v. Crabtree, 198 W.Va. 620, 627, 482 S.E.2d 605, 612 (1996)).

                                                 3

       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 [W.Va. Code § 61-11-18] of this article on a second or third conviction as
       the case may be.

        First, petitioner alleges that he did not have notice that a recidivist information would be
filed against him at the plea hearing. We find this assertion dubious given that, in the plea
agreement, petitioner admitted to the felony conviction upon which the recidivist information was
based. Moreover, at the plea hearing, petitioner confirmed to the circuit court that the plea
agreement contemplated his being charged as a recidivist pursuant to West Virginia Code §
61-11-18(a). Therefore, we reject petitioner’s contention that he did not have notice of the
recidivist information.

        Second, petitioner contends that he was not “duly cautioned” that he had a right not to
admit being the same person who committed the prior felony set forth in the recidivist information
and to have a jury trial on the issue, as required by West Virginia Code § 61-11-19. Upon our
review of the plea hearing transcript, we find that the circuit court informed petitioner that he did
not have to admit to the recidivist information and that he would be entitled to a jury trial on the
issue. Therefore, we reject petitioner’s contention that he was not “duly cautioned” as required by
West Virginia Code § 61-11-19.

        Finally, petitioner contends that the recidivist information was filed at the plea hearing
before the circuit court accepted his guilty plea which was, therefore, before he was convicted
within the meaning of West Virginia Code § 61-11-19. The State counters that petitioner’s
argument is a highly technical one, and one that he waived by entering into the plea agreement. We
agree with the State. In Plymail, the defendant argued that his recidivist life sentence was invalid
because the circuit court did not arraign him on the recidivist information in the same term of court
in which he was convicted of the triggering offense in violation of West Virginia Code § 61-11-19.
2015 WL 7628723, at *6. However, we determined that there was no error because the defendant
“requested [the] delay in his arraignment on the recidivist information.” Id. at *8. Similarly, in the
instant case, petitioner voluntarily entered into a plea agreement and agreed to being convicted on
a recidivist information. Accordingly, we find no error with regard to the timing of the recidivist
information’s filing at petitioner’s plea hearing. Therefore, we conclude that the circuit court did
not abuse its discretion in denying petitioner’s Rule 35(a) motion to correct an illegal sentence.

       For the foregoing reasons, we affirm.

                                                                                           Affirmed.


ISSUED: June 3, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
                                                  4
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




                              5
