                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS

                                                                                   FILED
                                                                              September 2, 2016
State of West Virginia,                                                           RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
Plaintiff Below, Respondent                                                         OF WEST VIRGINIA


vs) No. 15-1000 (Ohio County 03-F-27)

Eric Paul Minda,

Defendant Below, Petitioner



                                MEMORANDUM DECISION
        Petitioner Eric Paul Minda, pro se, appeals the September 17, 2015, order of the Circuit
Court of Ohio County denying his motion for correction of illegal sentence. Respondent State of
West Virginia, by counsel Jonathan E. Porter and Erica N. Peterson, filed a summary response, and
petitioner filed a reply. The parties also filed supplemental briefs pursuant to an amended
scheduling order, entered June 17, 2016.1

        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 January 13, 2003, an indictment was returned against petitioner. Count one of the
indictment charged petitioner with first degree robbery “by the threat of deadly force by the
presenting of a firearm.” Count two charged petitioner with the felony offense of being a person
prohibited from possessing a firearm. The indictment alleged that petitioner possessed a firearm
“despite having been convicted in the State of West Virginia of a felony crime of violence against
the person of another, to-wit: a conviction in Ohio County, West Virginia on March 6, 1990, Case
Number 90-F-6 for ‘Burglary.’”

       On March 27, 2003, petitioner entered into a stipulation with the State as to the existence of
his burglary conviction. Accordingly, pursuant to the parties’ stipulation, the circuit court

       1
           We note that petitioner filed a corrected supplemental brief on July 14, 2016.

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instructed the jury that it was unlawful for petitioner to possess a firearm on the date of the robbery
and that the only finding they needed to make with respect to count two was whether petitioner did
in fact possess a firearm. Following trial, the jury convicted petitioner of first degree robbery and
answered a special interrogatory that petitioner presented a firearm during the commission thereof.
The jury further convicted petitioner of the felony offense of being a person prohibited from
possessing a firearm. The circuit court sentenced petitioner to ninety years of incarceration for the
robbery conviction and five years of incarceration for possessing a firearm when he was legally
prohibited from possessing a firearm. The circuit court ordered that petitioner’s sentences be
served consecutively and noted that, because of the firearm specification, petitioner would not be
eligible for parole until he has served one-third of his sentence. See W.Va. Code §
62-12-13(b)(1)(C). Petitioner filed an appeal, which was refused by this Court on February 9,
2005.

        In December of 2005, petitioner filed a petition for a writ of habeas corpus in Case No.
06-C-92. As part of that proceeding, on December 29, 2009, petitioner’s trial counsel testified at a
deposition. The circuit court then held an evidentiary hearing on February 19, 2010, at which
petitioner was represented by habeas counsel. At the February 19, 2010, hearing, petitioner called
an expert to testify regarding his trial counsel’s effectiveness. A subsequent habeas corpus hearing
was held on December 20, 2013. At the December 20, 2013, petitioner presented no new
witnesses, but presented oral argument and referenced the prior testimony of his expert.
Subsequently, the circuit court entered an order on February 24, 2014, and denied petitioner’s
habeas petition. First, the circuit court found that petitioner’s ninety-year sentence for first degree
robbery was not disproportionate to the offense given that petitioner put the victim of the robbery
in fear that he was going to shoot her. Second, the circuit court found that trial counsel was not
ineffective. Petitioner appealed the circuit court’s February 24, 2014, order in Minda v. Ballard,
No. 14-0334, 2015 WL 1235229 (W.Va. March 16, 2015) (memorandum decision), and this Court
affirmed the denial of habeas relief.

        On July 27, 2015, petitioner filed a motion for correction of illegal sentence pursuant to
Rule 35(a) of the West Virginia Rules of Criminal Procedure.2 On September 17, 2015, the circuit
court denied petitioner’s Rule 35(a) motion. The circuit court rejected petitioner’s arguments and
found that petitioner had the opportunity to make his arguments in prior proceedings such as his
direct appeal.

       Petitioner now appeals the circuit court’s September 17, 2015, order denying his Rule
35(a) motion for correction of illegal sentence. 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

       2
          Rule 35(a) of the West Virginia Rules of Criminal Procedure provides, in pertinent part,
that “[t]he court may correct an illegal sentence at any time[.]”


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       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.

                      Petitioner’s stipulation to his prior burglary conviction

               relieved the jury from making any finding regarding that conviction.


        Petitioner contends that he should have been convicted of the misdemeanor offense of
being a person prohibited from possessing a firearm pursuant to West Virginia Code § 61-7-7(a)
which provides for a sentence of ninety days in jail to one year of incarceration. However,
petitioner was indicted for the felony offense of being a person prohibited from possessing a
firearm pursuant to West Virginia Code § 61-7-7(b)—which provides for a sentence of five years
of incarceration—on the basis of petitioner’s prior burglary conviction. The State asserts that
petitioner committed the felony offense because his prior conviction constituted “a felony crime of
violence against the person of another.” See W.Va. Code § 61-7-7(b)(1). The State argues that,
because the parties stipulated to the burglary conviction, the jury was properly instructed that the
only finding they needed to make with regard to count two of the indictment was whether
petitioner did in fact possess a firearm. We concur.

        While petitioner failed to include the March 27, 2003, stipulation of the parties in his
appendix,3 he now concedes that he stipulated to his prior burglary conviction. “Stipulations or
agreements made in open court by the parties in the trial of a case and acted upon are binding and
a judgment founded thereon will not be reversed.” Syl. Pt. 1, Butler v. Smith’s Transfer Corp., 147
W.Va. 402, 128 S.E.2d 32 (1962). As we held in both State v. Dews, 209 W.Va. 500, 549 S.E.2d
694 (2001), and State v. Herbert, 234 W.Va. 576, 767 S.E.2d 471 (2014), a criminal defendant
may stipulate to a prior conviction where that conviction constitutes a status element of the present
offense. In Syllabus Point 5 of Herbert, we specifically held that a defendant may enter into such a
stipulation when a prior conviction is a status element of the felony offense of being a person
prohibited from possessing a firearm under West Virginia Code § 61-7-7(b)(1). 234 W.Va. at 579,
767 S.E.2d at 475.4

        While petitioner had a constitutional right to have all elements of a offense proven to the
jury, by entering into the stipulation, he waived that right. See Dews, 209 W.Va. at 504 n.2, 549
S.E.2d at 698 n.2. Petitioner asserts that he did not intend to stipulate that his prior burglary


       3
         We, on our own motion, supplemented the record with the March 27, 2003, stipulation of
the parties by an amended scheduling order entered June 17, 2016.
       4
         Because we did not decide Herbert until after petitioner’s conviction pursuant to West
Virginia Code § 61-7-7(b)(1), the more general holding of Dews governs this case. However, we
find that the result is the same.


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conviction constituted a crime of violence against the person of another.5 However, petitioner
does not claim that he was unaware that the indictment alleged that his burglary conviction was “a
felony crime of violence against the person of another.” Petitioner instead contends that his trial
counsel “hastily agreed” to the stipulation and failed to ensure that the exact nature of the
stipulation was reflected on the record. We find that the doctrine of res judicata bars petitioner
from arguing that trial counsel was ineffective regarding the entry of the stipulation.

        In Syllabus Point 2 of Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981), we held,
as follows:

               A judgment denying relief in post-conviction habeas corpus is res judicata
       on questions of fact or law which have been fully and finally litigated and decided,
       and as to issues which with reasonable diligence should have been known but were
       not raised, and this occurs where there has been an omnibus habeas corpus hearing
       at which the applicant for habeas corpus was represented by counsel or appeared
       pro se having knowingly and intelligently waived his right to counsel.

(Emphasis added.) In his habeas proceeding, petitioner did not allege that his trial counsel was
ineffective in agreeing to the stipulation, but questioned his trial counsel regarding the stipulation
at the latter’s December 29, 2009, deposition.6 Thus, we find that, with reasonable diligence, this
issue should have been known by petitioner, but was not raised in Case No. 06-C-92. Therefore,
we determine that petitioner may not raise it now.

        We conclude that the March 27, 2003, stipulation of the parties to petitioner’s prior
burglary conviction relieved the jury from making any finding regarding that conviction. The jury
did find that petitioner possessed a firearm—which, evidenced by the parties’ stipulation,
constituted an unlawful act. Accordingly, we conclude that petitioner was properly convicted of


       5
         Petitioner feels that he should be able to argue that his burglary conviction was not a crime
of violence against the person of another under the facts and circumstances of his case where the
residence he burglarized was unoccupied at the time of that offense. See State ex rel. Boso v.
Hedrick, 182 W.Va. 701, 709, 391 S.E.2d 614, 622 (1990) (finding life recidivist sentence
constitutionally disproportionate where the offenses, including a nighttime burglary of an
unoccupied dwelling, involved neither weapons nor threats of violence). We note that, in other
cases, we have found that burglary constitutes a crime which involves either violence or the threat
of violence. See State v. Evans, 203 W.Va. 446, 450, 508 S.E.2d 606, 610 (1998) (stating that
“[w]e expressly reject Evans’ contention that burglary does not constitute a crime of violence.”);
Martin v. Leverette, 161 W.Va. 547, 555, 244 S.E.2d 39, 43-44 (1978) (stating that burglary is a
“serious [crime] and involve[s] the threat of violence against persons”).
       6
        We took judicial notice of the transcript of trial counsel’s December 29, 2009, deposition
in Case No. 06-C-92 by an order entered July 20, 2016.


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the felony offense of being a person prohibited from possessing a firearm under West Virginia
Code § 61-7-7(b)(1).

                    The Double Jeopardy Clause was not violated in this case.

         Petitioner contends that he is being punished twice for the same conduct in violation of the
Double Jeopardy Clause.7 See Syl. Pts. 1 and 2, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253
(1992) (holding that the Double Jeopardy Clauses of both the United States and West Virginia
Constitutions prohibit “multiple punishments for the same offense.”). Petitioner asserts that his
possession and use of a firearm affected his sentence under each count of the indictment. Petitioner
notes that (1) the firearm specification attached to his robbery conviction has delayed his parole
eligibility pursuant to West Virginia Code § 62-12-13(b)(1)(C); and (2) he has a separate sentence
of five years of incarceration for being a person prohibited from possessing a firearm pursuant to
West Virginia Code § 61-7-7(b)(2).

         The State counters that there has been no double jeopardy violation in this case. The State
asserts that, for it to prove that petitioner was guilty of first degree robbery with a firearm
specification attached, it had to show use of a firearm during the commission of the robbery—not
simply possession. We agree with the State that separate conduct served as the basis for each
offense. We find that petitioner completed the offense under West Virginia Code § 61-7-7(b) as
soon as he possessed a firearm on the day in question independent of the fact that he used the
firearm in a robbery. Therefore, we find that the Double Jeopardy Clause has not been violated
because petitioner is not being punished twice for the same conduct. Accordingly, we conclude
that the circuit court did not abuse its discretion in denying petitioner’s motion for correction of
illegal sentence.

        For the foregoing reasons, we affirm the circuit court’s September 17, 2015, order denying
petitioner’s Rule 35(a) motion for correction of illegal sentence.

                                                                                          Affirmed.


ISSUED: September 2, 2016




       7
        The Double Jeopardy Clause of the United States Constitution is found in the Fifth
Amendment, made applicable to the several States through the Fourteenth Amendment. See
Benton v. Maryland, 395 U.S. 784, 787 (1969). The Double Jeopardy Clause of the West Virginia
Constitution is found at article III, section 5.

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CONCURRED IN BY:

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




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