       IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                             September 2013 Term
                                                            FILED
                               _____________            October 17, 2013
                                                          released at 3:00 p.m.
                                No. 12-0396               RORY L. PERRY II, CLERK
                                                        SUPREME COURT OF APPEALS
                               _____________                OF WEST VIRGINIA




                            ROBERT L. HOLCOMB,
                                 Petitioner


                                     V.


                      DAVID BALLARD, WARDEN,
              MOUNT OLIVE CORRECTIONAL COMPLEX,
                               Respondent
  ____________________________________________________________________

               Appeal from the Circuit Court of Nicholas County
                         Honorable Jack Alsop, Judge
                          Civil Action No. 09-C-44

                      REVERSED AND REMANDED
  ____________________________________________________________________
                        Submitted: October 1, 2013
                          Filed: October 17, 2013

Steven B. Nanners                               Patrick Morrisey
Nanners & Willett                               Attorney General
Buckhannon, West Virginia                       Benjamin Yancey
Attorney for Petitioner                         Assistant Attorney General
                                                Charleston, West Virginia
                                                Attorneys for Respondent

JUSTICE DAVIS delivered the Opinion of the Court.

JUSTICE WORKMAN and JUSTICE LOUGHRY concur and reserve the right to file
concurring opinions.
                              SYLLABUS BY THE COURT



              1.     The procedural recidivist requirements of W. Va. Code § 61-11-19

(1943) (Repl. Vol. 2010) are mandatory, jurisdictional, and not subject to harmless error

analysis.



              2.     “‘Habitual criminal proceedings providing for enhanced or additional

punishment on proof of one or more prior convictions 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).” Syllabus point 2, Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205

(1981).



              3.     A recidivist sentence under W. Va. Code § 61-11-19 (1943) (Repl. Vol.

2010) is automatically vacated whenever the underlying felony conviction is vacated.




Davis, Justice:

                                               i
              This appeal was brought by Robert L. Holcomb (hereinafter referred to as “Mr.

Holcomb”) from an order of the Circuit Court of Nicholas County that denied his petition for

habeas corpus relief. In this appeal, Mr. Holcomb argues that the circuit court committed

error in ruling that his recidivist life imprisonment sentence was valid, that his life

imprisonment sentence was not disproportionate, and that his trial counsel did not improperly

advise him to stipulate to the recidivist charges. After a careful review of the briefs, the

record submitted on appeal, and listening to the argument of the parties, we reverse and

remand this case for further proceedings consistent with this opinion.



                                               I.

                      FACTUAL AND PROCEDURAL HISTORY

              On April 5, 2006, a jury convicted Mr. Holcomb of child neglect creating a

substantial risk of injury or death.1 On that same day, the State filed a recidivist information

charging Mr. Holcomb with having previously been convicted of five felony offenses.2 On

August 1, 2006, a jury convicted Mr. Holcomb on the recidivist charges and he was

ultimately sentenced to life imprisonment.3 On October 13, 2006, the trial court granted Mr.




              1
               The record does not reveal the underlying facts of the case.
              2
               The prior felony offenses included: two grand larceny convictions, two
receiving stolen goods convictions, and one unlawful wounding conviction.
              3
               The record does not indicate the date of sentencing.

                                               1
Holcomb a new trial on the underlying child neglect felony.4



               A second trial on the child neglect felony was held on January 4, 2007. On the

same day, a jury returned a verdict finding Mr. Holcomb guilty of the child neglect felony

charge. The State filed a recidivist information on January 5, 2007, seeking a life

imprisonment sentence.5 Mr. Holcomb was not served with a copy of the information until

January 8, 2007, the last day of the term of court. At a new term of court on April 30, 2007,

Mr. Holcomb appeared before the trial court and admitted that he was the person named in

each count of the information.6 The trial court subsequently sentenced Mr. Holcomb to life

imprisonment. On February 13, 2008, Mr. Holcomb filed a petition for appeal with this

Court, which was refused.7



               On March 17, 2009, Mr. Holcomb filed a pro se habeas corpus petition with

the circuit court. Following the appointment of counsel, Mr. Holcomb filed an amended




               4
                A new trial was granted as a result of an erroneous jury instruction.
               5
                The information alleged the same offenses that were set out in the first
information.
               6
               Mr. Holcomb’s admission was conditioned on his right to challenge the
timeliness of the information proceeding on appeal.
               7
                Mr. Holcomb was resentenced so that he could timely file the petition for
appeal.

                                              2
habeas petition on April 22, 2011.8 An omnibus hearing was held on August 26, 2011.

Subsequent to the hearing, the trial court entered an order denying habeas relief. This appeal

timely followed.




                                             II.

                               STANDARD OF REVIEW

              This appeal is from an order of the circuit court denying Mr. Holcomb habeas

corpus relief. In Syllabus point 1 of Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771

(2006), we held the following regarding the standard of review:

                      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.

With this standard in mind, we proceed to determine whether the circuit court committed

error in denying habeas corpus relief to Mr. Holcomb.




              8
               Mr. Holcomb asserted 19 grounds for relief in the petition. However, in this
appeal, Mr. Holcomb has raised only three issues. The issues that were not raised in this
appeal are deemed waived. See Mack–Evans v. Hilltop Healthcare Ctr., Inc., 226 W. Va.
257, 264 n.12, 700 S.E.2d 317, 324 n.12 (2010) (“To the extent that the issue was raised
below, but not on appeal, it is deemed waived.”); State v. Lockhart, 208 W. Va. 622, 627 n.4,
542 S.E.2d 443, 448 n.4 (2000) (“Assignments of error that are not briefed are deemed
waived.”).

                                              3
                                              III.

                                        DISCUSSION

              Mr. Holcomb contends that his second recidivist life sentence was invalid

because he was not arraigned on the recidivist information during the same term of court in

which he was convicted on retrial for the underlying offense.9 The trial court held that any

error in not arraigning Mr. Holcomb on the recidivist charge, during the term of court in

which he was convicted, was harmless error. Here, the State now disagrees with the trial

court. The State concedes that the second recidivist proceeding was invalid. However, the

State urges this Court to vacate the life sentence imposed under the second recidivist

proceeding, and remand the case so that the trial court can sentence Mr. Holcomb to life

imprisonment under the first recidivist sentence.



              We begin by observing that the issue presented requires this Court to review

the language of the recidivist statute. Our rules of statutory construction are well established.

“The primary object in construing a statute is to ascertain and give effect to the intent of the

Legislature.” Syl. pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va. 108, 219

S.E.2d 361 (1975). “In ascertaining legislative intent, effect must be given to each part of

the statute and to the statute as a whole so as to accomplish the general purpose of the


              9
               We will note as a general matter that “[s]ince a recidivist proceeding does not
involve a separate substantive offense, double jeopardy principles do not bar a retrial of that
proceeding.” Syl. pt. 6, State ex rel. McMannis v. Mohn, 163 W. Va. 129, 254 S.E.2d 805
(1979).

                                               4
legislation.” Vanderbilt Mortg. & Fin., Inc. v. Cole, 230 W. Va. 505, ___, 740 S.E.2d 562,

567-68 (2013) (internal quotation marks and citations omitted). We have recognized that

“[w]hen a statute is clear and unambiguous and the legislative intent is plain, the statute

should not be interpreted by the courts, and in such case it is the duty of the courts not to

construe but to apply the statute.” Syl. pt. 5, State v. General Daniel Morgan Post No. 548,

V.F.W., 144 W. Va. 137, 107 S.E.2d 353 (1959). “Only when such language is ambiguous

may we interpret and construe a statutory provision.” Webster Cnty.. Comm’n v. Clayton,

206 W. Va. 107, 112, 522 S.E.2d 201, 206 (1999). We should also note as relevant to this

case, “silence does not, in and of itself, render a statute ambiguous.” Griffith v. Frontier

West Virginia, Inc., 228 W. Va. 277, 285, 719 S.E.2d 747, 755 (2011). Moreover, “it is not

for [courts] arbitrarily to read into [a statute] that which it does not say. Just as courts are not

to eliminate through judicial interpretation words that were purposely included, we are

obliged not to add to statutes something the Legislature purposely omitted.” Banker v.

Banker, 196 W. Va. 535, 546-47, 474 S.E.2d 465, 476-77 (1996).



               The procedure for imposing recidivist punishment on a defendant is contained

in W. Va. Code § 61-11-19 (1943) (Repl. Vol. 2010).10 This statute provides in relevant part

as follows:

                       It shall be the duty of the prosecuting attorney when he


               10
              The substantive or punishment provision for recidivism is contained in
W. Va. Code § 61-11-18 (2000) (Repl. Vol. 2010).

                                                 5
              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. . . .

(Emphasis added). This Court previously has held that “[t]he language of the above quoted

statute is clear and the procedural requirements contained therein are mandatory.” State ex

rel. Foster v. Boles, 147 W. Va. 655, 658, 130 S.E.2d 111, 114 (1963). First, the statute

requires a prosecutor to present an information to a court after a defendant is convicted, but

before the defendant is sentenced. Second, a court must arraign the defendant on the

information before expiration of the term of court at which the defendant was convicted.



              In the analysis that follows, we will separately examine the trial court’s

harmless error ruling and the State’s alternative sentencing proposal.



              (1) Failure to arraign Mr. Holcomb on the recidivist charge during the

same term of court. As previously noted, under W. Va. Code § 61-11-19, a trial court is

obligated to arraign a defendant on a recidivist information during the term of court in which

the defendant is convicted. The trial court and the parties agree that Mr. Holcomb was not


                                              6
arraigned on the second recidivist information during the term of court of his second

conviction. The trial court found that this error was harmless and that Mr. Holcomb could

be arraigned on the second recidivist information during a subsequent term of court. There

is no support in our cases for the trial court’s harmless error ruling. The seminal case on this

issue is State ex rel. Housden v. Adams, 143 W. Va. 601, 103 S.E.2d 873 (1958).



              The defendant in Housden was convicted by a jury of sodomy. Before the

defendant was sentenced, but after the term of court had expired, the State filed a recidivist

information charging the defendant with having been convicted of three prior felonies. The

trial court arraigned the defendant on the information, and the defendant admitted that he was

the person named in the information. The trial court thereafter sentenced the defendant to

life imprisonment.11 The defendant filed a habeas corpus petition directly with this Court

seeking to vacate the recidivist sentence. The defendant argued that the trial court did not

have jurisdiction to impose the recidivist sentence because he was not arraigned during the

term of court in which he was convicted. This Court agreed with the defendant as follows:

                        Here the petitioner was convicted of a criminal offense
              . . . in one term of court, and in a subsequent term of the court he
              was charged and sentenced under the habitual criminal statute.
              This course of action is not in compliance with the plain and
              unambiguous provisions of such statute, and as compliance with
              the provisions of the habitual criminal statute is jurisdictional
              and mandatory, there can be no material deviation therefrom,
              and must be applied. While procedural steps relating to


              11
                The punishment for sodomy was only one to ten years imprisonment.

                                               7
              sentencing and other matters, including sentencing, may be done
              at a subsequent term, if the habitual criminal statute is sought to
              be enforced, the information must be given and the convicted
              person confronted with the charge of previous convictions
              “before expiration of the term at which such person was
              convicted.”

              ....

                     The judgment sentencing the petitioner to life
              imprisonment, being in excess of imprisonment for a term of ten
              years, which is the maximum sentence of imprisonment which
              the Circuit Court had jurisdiction to pronounce upon the verdict
              convicting the petitioner of the crime of sodomy, is a void
              judgment to the extent it exceeds the maximum sentence of
              imprisonment for ten years from the date of its rendition.

Housden, 143 W. Va. at 606-08, 103 S.E.2d at 876-77.



              In State ex rel. Foster v. Boles, 147 W. Va. 655, 130 S.E.2d 111 (1963), we

were again called upon to address the issue of a defendant being arraigned on an information

in a term of court in which he was not convicted of the principal offense. The defendant in

Foster was convicted by a jury of buying and receiving stolen goods. After the conviction,

the State filed a recidivist information alleging the defendant previously had been convicted

of two felony offenses. However, the defendant was not arraigned on the information until

after the expiration of the term of court in which he was convicted. When the trial court

arraigned the defendant on the information, the defendant admitted that he was the person

named in the information. The trial court thereafter sentenced the defendant to life




                                              8
imprisonment.12 The defendant filed a habeas corpus petition directly with this Court seeking

to vacate the recidivist sentence. One of the arguments made was that the trial court lacked

jurisdiction to impose the recidivist sentence. We agreed with the defendant as follows:

                      The procedure, as set out in Section 19 of the habitual
              criminal statute, expressly requires that the prosecutor not only
              give information of previous convictions to the court but that the
              court shall, before expiration of the term at which such person
              was convicted, cause such person to be brought before it and
              require him to say whether or not he is the same person named
              in the information. This language is clear and unequivocal. The
              record clearly reveals that the petitioner was not confronted with
              the charges contained in the information until February 10,
              1961, admittedly at a term of court subsequent to that at which
              he was tried and convicted of the principal offense. Clearly, this
              procedure did not satisfy the requirements of the statute (Code,
              61–11–19).

                      When it affirmatively appears from the record in the trial
              of a criminal case, on an indictment for a felony punishable by
              confinement in the penitentiary for a period of less than life
              imprisonment, that the trial court entered a judgment imposing
              a life sentence but did not comply with the provisions of the
              habitual criminal act, then that part of the sentence, in excess of
              the maximum statutory sentence for the particular offense
              charged in the indictment, is void. The trial court lacks
              jurisdiction to render such judgment and its enforcement will be
              prevented in a habeas corpus proceeding.

Foster, 147 W. Va. at 658-59, 130 S.E.2d at 114.



              The decision in State ex rel. Robb v. Boles, 148 W. Va. 641, 136 S.E.2d 891



              12
                The punishment for buying and receiving stolen goods was one to ten years
imprisonment.

                                              9
(1964), concerned the addition of five years to a sentence under the recidivist statute. The

defendant in Robb entered a plea of guilty to a charge of forgery. Subsequent to the

conviction, the State filed a recidivist information alleging the defendant had a prior felony

conviction.13 The court did not, however, arraign the defendant on the information until

after the expiration of the term of court in which he was convicted. Upon being arraigned

on the information, the defendant admitted that he was the person named in the information.

The trial court thereafter sentenced the defendant to not less than two years nor more than

ten years imprisonment on the forgery offense, and imposed an additional five years

imprisonment on the recidivist charge.14 The defendant filed a habeas corpus petition

directly with this Court seeking to vacate the recidivist sentence. The defendant contended

that the trial court lacked jurisdiction to impose the recidivist sentence. We agreed with the

defendant as follows:

                     When, as here, it affirmatively appears from the record
              in the trial of a criminal case on an indictment for a felony
              punishable by confinement in the penitentiary for a period of
              less than life imprisonment that the trial court entered a
              judgment imposing an additional period of imprisonment under
              the habitual criminal statute, Sections 18 and 19, Article 11,
              Chapter 61, Code, 1931, as amended, but did not fully comply
              with the provisions of that statute by failing to cause the
              defendant in such case to be confronted with the charges in the
              information and to be duly cautioned at the same term of court


              13
               The information actually alleged the defendant previously had been convicted
of two felony offenses. However, without explanation, the opinion indicated that the trial
court only considered one of the offenses.
              14
                   The court ordered the sentences be served consecutively.

                                               10
              at which he was convicted of the principal offense charged in
              the indictment, the added portion of the sentence, in excess of
              the maximum statutory sentence for such principal offense, is
              void for the reason that the trial court lacked jurisdiction to
              impose such additional sentence.

              ....

                      The sentence of confinement for the additional period of
              five years, being void, can not be enforced. The relief from that
              portion of the sentence imposed upon the petitioner as prayed
              for by him is granted, and the petitioner after completely serving
              the valid portion of his sentence must be released.

Robb, 148 W. Va. at 647-48, 136 S.E.2d at 894-95. See State ex rel. Albright v. Boles, 149

W. Va. 561, 564, 142 S.E.2d 725, 727 (1965) (“It is clear from the authorities cited herein

that the additional five year sentence is void and cannot be enforced.”); State ex rel. Bonnette

v. Boles, 148 W. Va. 649, 655, 136 S.E.2d 873, 877 (1964) (“The sentence of confinement

for the additional period of five years, being void, can not be enforced.”).



              The decision in State v. Cain, 178 W. Va. 353, 359 S.E.2d 581 (1987),

involved an amendment to an information after the expiration of the term of court in which

the defendant was convicted. In Cain, the defendant was convicted of breaking and entering.

After the conviction, the State filed an information alleging the defendant had two prior

felony convictions. The defendant was properly arraigned on the information before the

expiration of the term of court in which he was convicted. However, after the term expired,

the State amended the information and charged the defendant with having previously

committed a third felony offense. The defendant was convicted on the information and was

                                              11
sentenced to life imprisonment. On appeal, the defendant argued that the recidivist sentence

was void because he was not arraigned on the amended recidivist charge during the term of

court in which he was convicted. The State argued that such amendment was proper because

the recidivist statute did not expressly prohibit such amendment. Justice McHugh, writing

for the Court, rejected the State’s position as follows:

                      We note that W. Va. Code, 61-11-19 [1943] does not
              explicitly prohibit a prosecuting attorney from filing an
              amendment or amendments to a recidivist information
              subsequent to the term at which a defendant was convicted and
              the original information was filed. However, to hold that a
              prosecuting attorney may file amendments to that information
              subsequent to the term at which the defendant was convicted
              would deprive the defendant of his right to confront all the
              charges against him, particularly when the sole reason for the
              amendment is to add another offense. In addition, such a
              holding would ignore the mandatory language as well as the
              spirit of the recidivist provisions embodied in W. Va. Code,
              61-11-19. Furthermore, there is strong precedent in this State as
              evidenced by [State ex rel. Housden v. Adams, 143 W. Va. 601,
              103 S.E.2d 873 (1958),] and its progeny for holding that
              amendments to a recidivist information, which in essence
              constitute the complete information, must be filed “before
              expiration of the term at which [a defendant] was convicted.”

                     Accordingly, we conclude that a person convicted of a
              felony may not be sentenced pursuant to W. Va. Code,
              61-11-18, -19 [1943], unless a recidivist information and any or
              all material amendments thereto as to the person’s prior
              conviction or convictions are filed by the prosecuting attorney
              with the court before expiration of the term at which such person
              was convicted, so that such person is confronted with the facts
              charged in the entire information, including any or all material
              amendments thereto.

Cain, 178 W. Va. at 357-58, 359 S.E.2d at 585-86 (citation omitted).


                                              12
              In State v. Cavallaro, 210 W. Va. 237, 557 S.E.2d 291 (2001), the defendant

was convicted of unlawful wounding. After the conviction, the State filed a recidivist

information alleging the defendant had been convicted of four prior felonies. However, the

defendant was not arraigned on the information until after the expiration of the term of court

in which he was convicted. A jury ultimately convicted the defendant under the information,

and he was sentenced to life imprisonment. On appeal, the defendant argued that the trial

court lacked jurisdiction to impose the recidivist sentence because he was not arraigned

during the same term of court that he was convicted of the principal offense.15 We agreed

with the defendant as follows:

                     The disposition of the present case is controlled by State
              ex rel. Housden v. Adams, 143 W. Va. 601, 103 S.E.2d 873
              (1958). . . . We agreed with the defendant in Housden that the
              recidivist statute required that he be arraigned (not tried) on the
              recidivist information during the same term of court in which he
              was convicted of the underlying crime. . . .

                     In this case, immediately after the jury was discharged,
              the prosecutor expressly informed the trial court that a recidivist
              information was being filed against Mr. Cavallaro and that the
              trial court had to confront Mr. Cavallaro regarding the
              information. The trial court erroneously believed that so long as
              the information was filed during the term of court in which Mr.
              Cavallaro was convicted, the recidivist statute was followed.
              Consequently, the trial court delayed arraigning Mr. Cavallaro
              on the recidivist information until the subsequent term of court.

                     Pursuant to Housden, the trial court was without


              15
               We note that, in Cavallaro, “the state concede[d] that the recidivist
proceeding was invalid and that the life sentence should be vacated.” Cavallaro, 210 W. Va.
at 239, 557 S.E.2d at 293.

                                              13
              jurisdiction under the facts of this case to permit the prosecution
              and sentence of Mr. Cavallaro on the recidivist information.
              Consequently, we must reverse the recidivist sentence. In doing
              so, however, we do not disturb the sentence for the underlying
              conviction of unlawful wounding.

Cavallaro, 210 W. Va. at 239-40, 557 S.E.2d at 293-94.



              Under the teachings of Housden and its progeny, we make clear today, and so

hold, that the procedural recidivist requirements of W. Va. Code § 61-11-19 (1943) (Repl.

Vol. 2010) are mandatory, jurisdictional, and not subject to harmless error analysis. See

State ex rel. Ringer v. Boles, 151 W. Va. 864, 871, 157 S.E.2d 554, 558 (1967) (“This Court

has consistently held that the habitual criminal statutes of this state are mandatory and

jurisdictional.”). In the instant proceeding, the State failed to comply with the requirements

of W. Va. Code § 61-11-19 insofar as Mr. Holcomb was not arraigned on the information

during the term of court in which he was convicted of the principal offense. The trial court

found that this error was harmless. Our holding today has made clear that the harmless error

analysis is inapplicable to a violation of the procedures outlined under W. Va. Code

§ 61-11-19.



              (2) The status of a recidivist judgment when the underlying conviction is

vacated. As pointed out earlier, the State concedes that the circuit court committed error in

applying harmless error to Mr. Holcomb’s improperly held second recidivist proceeding.

However, the State urges this Court to remand the case so that the trial court can merge the

                                              14
first recidivist sentence with the second conviction for felony child neglect. Although this

Court understands that judicial economy would be served by allowing the prior valid

recidivist judgment to be used against Mr. Holcomb, our cases teach us that judicial economy

has limitations under W. Va. Code § 61-11-19. We have made clear that

                      “[h]abitual criminal proceedings providing for enhanced
              or additional punishment on proof of one or more prior
              convictions 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).

Syl. pt. 2, Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981). In other

words, the “[h]abitual criminal statutes are generally held to be highly penal, in derogation

of common law, to be strictly construed against the prosecution and not to be extended to

embrace cases not falling clearly within the statutory provisions.” State ex rel. Smith v.

Boles, 150 W. Va. 1, 8, 146 S.E.2d 585, 590 (1965) (Calhoun, J., dissenting). There is no

language in W. Va. Code § 61-11-19 that permits the alternative disposition argued by the

State.



              Although the State contends that this Court has not previously addressed the

issue of what happens to a recidivist sentence when the principal conviction is reversed, we

have, in fact, previously squarely addressed the issue. This issue was confronted by the

Court in State ex rel. Young v. Morgan, 173 W. Va. 452, 317 S.E.2d 812 (1984). The


                                              15
defendant in Young was convicted of second degree murder. He was subsequently properly

arraigned on a recidivist information for having previously been convicted of one prior

felony. Upon a determination that the defendant was the person charged in the information,

the trial court added an additional five years to his sentence, as required by the recidivist

statute. The defendant's conviction for second degree murder was ultimately vacated by a

federal court in a habeas proceeding. The State retried the defendant, and he was found

guilty of first degree murder. The trial court sentenced the defendant to life imprisonment.

As a result of the sentence, the State did not file a new recidivist information. The defendant

appealed the first degree murder conviction to this Court. On appeal, this Court vacated the

defendant’s first degree murder conviction on double jeopardy grounds,16 and remanded the

case back to the circuit court for resentencing for second degree murder. On remand the

State filed a new information seeking to impose recidivist punishment during the

resentencing proceeding. The defendant filed a writ a prohibition with this Court seeking to

prevent a new recidivist charge.



              One of the arguments made by the State in Young was that the prior recidivist

conviction was still valid, and could be imposed on the defendant, because the federal court

reversed only the underlying second degree murder conviction–not the recidivist judgment.

We disagreed with the State as follows:



              16
                Double jeopardy prevents a higher conviction on retrial.

                                              16
                       We find no merit in the respondent’s argument that the
              recidivist penalty added to Young’s sentence on his initial
              conviction of second degree murder survived the setting aside
              of that conviction by the federal district court. The recidivist
              penalty cannot survive the vacating of the principal felony
              offense. We have consistently held under the habitual criminal
              statutes that the recidivist penalty authorized for a second felony
              conviction must be added to and incorporated in the underlying
              sentence to form a single sentence. The recidivist penalty is not
              a separate sentence. Consequently, when Young’s second degree
              murder conviction was set aside, he was no longer a habitual
              offender. The legal predicate for the penalty was removed and
              it fell along with the conviction.

Young, 173 W. Va. at 454, 317 S.E.2d at 814.17 See Syl. pt. 3, State ex rel. Keenan v.

Hatcher, 210 W. Va. 307, 557 S.E.2d 361 (2001) (“Where a recidivist proceeding has

previously been initiated against a criminal defendant by an information filed pursuant to

W. Va. Code §§ 61-11-18 & -19, and it is later determined that the prosecuting attorney who

initiated the charge was disqualified from acting in the case at the time such instrument was

filed, the recidivist information is invalid and may not serve as a basis for further

proceedings.”).



              In view of our decision in Young, we make clear and now hold that a recidivist

sentence under W. Va. Code § 61-11-19 (1943) (Repl. Vol. 2010) is automatically vacated

whenever the underlying felony conviction is vacated. In view of our holding, Mr.


              17
                The opinion went on to hold that the State could prosecute a new recidivist
charge because the defendant delayed the proceeding by appealing the conviction. Insofar
as the ground relied upon in Young to allow a new recidivist proceeding to take place is not
before this Court, we will not address the soundness of the opinion’s reasoning on that issue.

                                              17
Holcomb’s first recidivist sentence was vacated when the trial court set aside the principal

conviction in the first proceeding. Consequently, we reject the State’s request that we

remand this case and order the first recidivist judgment be merged with Mr. Holcomb’s

second conviction for felony child neglect.18



                                               IV.

                                        CONCLUSION

               In view of the foregoing, the recidivist life imprisonment sentence imposed

upon Mr. Holcomb is void and unenforceable. This case is remanded for a determination of

whether Mr. Holcomb has served the maximum term for his conviction under W. Va. Code

§ 61-8D-4(e) (1996) (Repl. Vol. 2010).19 See Syl. pt. 5, State ex rel. McMannis v. Mohn, 163

W. Va. 129, 254 S.E.2d 805 (1979) (“The void portion of a judgment can be attacked in a

habeas corpus proceeding, but if there remains a valid portion of the sentence yet to be

served, the relator is not entitled to a discharge.”); Syl. pt. 3, State ex rel. Albright v. Boles,

149 W. Va. 561, 142 S.E.2d 725 (1965) (“Where an additional sentence imposed under the

provisions of the habitual criminal statute is void, a petitioner in a habeas corpus proceeding

is not entitled to release from confinement in the penitentiary until the expiration of the



               18
               Because of our resolution of the Mr. Holcomb’s first assignment of error, we
need not address his remaining assignments of error.
               19
              The punishment under this statute is a fine of three thousand dollars and
confinement for not less than one nor more than five years.

                                                18
maximum term provided by the statute as punishment for the principal offense.”); Syl. pt. 2,

State ex rel. Medley v. Skeen, 138 W. Va. 409, 76 S.E.2d 146 (1953) (“A petitioner in a

habeas corpus proceeding upon whom punishment by imprisonment for life has been

imposed, under Code, 61–11–19, may be relieved of the void portion of the punishment, but

will not be discharged from serving the maximum terms provided by statute as punishment

for the principal offenses.”). If it is determined on remand that Mr. Holcomb has served the

maximum sentence for the felony child neglect conviction and is not serving an unexpired

sentence for another offense, he is to be discharged from confinement forthwith.



                                                               Reversed and Remanded.




                                            19
