          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                    January 2015 Term                         FILED
                                                                         May 20, 2015
                                    _______________                      released at 3:00 p.m.
                                                                       RORY L. PERRY II, CLERK

                                                                     SUPREME COURT OF APPEALS

                                                                          OF WEST VIRGINIA

                                      No. 14-0904
                                    _______________


       STATE OF WEST VIRGINIA EX REL. RALPH A. LORENZETTI, JR.,

           PROSECUTING ATTORNEY OF JEFFERSON COUNTY,

                              Petitioner


                                            v.

                  THE HONORABLE DAVID H. SANDERS,

           JUDGE OF THE CIRCUIT COURT OF JEFFERSON COUNTY,

                      AND ELIZABETH A. SHANTON,

                              Respondents


       ____________________________________________________________

                    ORIGINAL PROCEEDING IN PROHIBITION

                             WRIT GRANTED
       ____________________________________________________________

                                 Submitted: March 4, 2015

                                   Filed: May 20, 2015



                                                 Shawn R. McDermott, Esq.
Brandon C.H. Sims, Esq.                          Mills McDermott, PLLC
Assistant Prosecuting Attorney                   Martinsburg, West Virginia
of Jefferson County                              Counsel for the Respondent
Charles Town, West Virginia
Counsel for the Petitioner

Lisa A. Hopkins, Esq.

General Counsel

Dawn E. Warfield, Esq.

Associate General Counsel

Vincent J. Smith, Esq.

Associate General Counsel

Amicus Curiae – Glen B. Gainer III,

West Virginia State Auditor




JUSTICE BENJAMIN delivered the Opinion of the Court.

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


              1.     Pursuant to the plain language of W. Va. Code § 12-3-10b (1996),

each purchase of goods or services made using a state purchasing card in a manner

contrary to the provisions of W. Va. Code § 12-3-10a (2007) or the rules promulgated

pursuant to that section involves a distinct offense.



              2.     W. Va. Code § 12-3-10b (1996) and W. Va. Code § 61-3-24d (1995)

each contain elements the other does not, and punishment under these two statutes for

conduct arising from the same act or transaction does not violate double jeopardy

principles.




                                              i
Benjamin, Justice:

              The petitioner, Ralph A. Lorenzetti, Prosecuting Attorney of Jefferson

County (“the State”), seeks a writ of prohibition pursuant to the original jurisdiction of

this Court to prohibit enforcement of the September 5, 2014, order of the Circuit Court of

Jefferson County, dismissing fifty-three counts of a fifty-four count indictment against

respondent Elizabeth A. “Libby” Shanton. Each of the fifty-three dismissed counts

alleged that Ms. Shanton used a state-issued purchasing card in violation of W. Va. Code

§ 12-3-10b (1996). The circuit court reasoned that the inclusion of these counts in the

indictment offended double jeopardy principles. For the reasons set forth herein, we

conclude that the circuit court erred by dismissing these fifty-three counts, abused its

legitimate powers and deprived the State of its right to prosecute the case. Therefore, we

grant the writ.



                  I. FACTUAL AND PROCEDURAL BACKGROUND

              The controversy in this case surrounds the use of a purchasing card (“P-

Card”) issued pursuant to West Virginia’s Purchasing Card Program. The Purchasing

Card Program was implemented in 1996 by the Legislature and is administered by the

West Virginia State Auditor. W. Va. Code § 12-3-10a (2007). P-Cards provide “an

alternative payment method” that make “the procurement and payment of goods and




                                            1

services . . . more efficient.” Id. According to the Auditor,1 the Purchasing Card Program

“obtain[s] greater accountability for purchases, improve[s] vendor payment cycles and

save[s] the State money through a streamlined payment process and cost avoidance.” The

Auditor asserts that P-Cards are “the payment method utilized for millions of dollars in

transactions involving essential state purchases.”



                Ms. Shanton was issued a P-Card while she was employed as Dean of

Student Affairs at Shepherd University in Shepherdstown, West Virginia. Her

responsibilities as Dean of Student Affairs involved organizing student programming,

including meals, special events, and giveaways. Following an investigation by the

Commission on Special Investigations, see W. Va. Code §§ 4-5-1 to -6, and the Purchase

Card Program Oversight Division, Ms. Shanton was indicted in a fifty-four count

indictment connected to her use of her P-Card. Count 1 of the indictment alleges that Ms.

Shanton engaged in a fraudulent scheme in violation of W. Va. Code § 61-3-24d (1995)2

by using her P-Card from July 1, 2011, to August 3, 2011, to make purchases of goods


       1
         We wish to acknowledge the submission of a brief in this matter by amicus
curiae Glen B. Gainer III, West Virginia State Auditor. We express our appreciation for
his participation, and we have considered his position in our decision in this case. See
also West Virginia State Auditor’s Office, Purchasing Card Program,
http://www.wvsao.gov/purchasingcard/ (last visited May 11, 2015) (providing
information on the history and operation of the Purchasing Card Program).
       2
           The text of this statute is provided infra Part III.A.2.



                                                 2

and services, totaling $85,932.67, that were not for an official state purpose but which

Ms. Shanton claimed were for an official state purpose in a monthly P-Card transaction

log. The remaining counts, counts 2 through 54, allege that Ms. Shanton engaged in

fraudulent or unauthorized use of her P-Card in violation of W. Va. Code § 12-3-10b

(1996)3 by using the P-Card fifty-three times on specific dates between October 9, 2010,

and August 2, 2012, to purchase goods and services that were not for official state

purposes.4



               Ms. Shanton filed three separate motions to dismiss the indictment. These

motions attacked each of the fifty-four counts in the indictment on one or more of the

following grounds: insufficiency, lack of jurisdiction, and unconstitutionality. On August

27, 2014, the circuit court held a conference call with the parties’ counsel and requested

that they submit additional factual information regarding the charges against Ms.




      3
          The text of this statute is provided infra Part III.A.1.
      4
        Ms. Shanton insists that all of the purchases described in the indictment were
made in furtherance of her duties as Dean of Student Affairs at Shepherd University. The
indictment alleges that Ms. Shanton unlawfully used her P-Card to purchase designer
handbags, perfume, cosmetics, and party supplies. The indictment also alleges that she
unlawfully used the P-Card to purchase windshield wiper blades and installation of the
wiper blades on a 1999 Ford Expedition, white platform boots in size 7–8, New York
Giants women’s gray boyfriend briefs in size extra large, and New York Giants women’s
blue panties size extra large.



                                                3

Shanton. The State filed a “Response to Factual Inquiries of the Court” on September 4,

2014.5



              The circuit court entered an order on September 5, 2014, granting Ms.

Shanton’s motion to dismiss with regard to the counts alleging that Ms. Shanton engaged

in fraudulent or unauthorized use of her P-Card in violation of W. Va. Code § 12-3-10b.

The circuit court determined that counts 2 through 54 of the indictment violated

principles of double jeopardy in two ways.



              First, the circuit court determined that each swipe of the P-Card was part of

a continuing offense; therefore, because each swipe of the P-Card did not give rise to a

distinct offense, Ms. Shanton could only be charged with one violation of W. Va. Code §

12-3-10b. Accordingly, to avoid running afoul of double jeopardy principles, the circuit

court collapsed counts 2 through 54 of the indictment into one single count.



              Second, the circuit court determined that the elements of the crime

described in counts 2 through 54 overlapped completely with the elements of count 1.

         5
         Neither party alleges that the court’s factual inquiries have bearing on the issues
presented in this proceeding. The inquiries dealt with whether Ms. Shanton was provided
with a budget or limit on spending when using the P-Card, whether other employees of
Shepherd University made purchases similar to those made by Ms. Shanton, whether
there are prohibitions against purchasing particular items with a P-Card, and whether the
expense accounts submitted by Ms. Shanton were approved by her supervisor.


                                             4

The court concluded that double jeopardy prevented charging Ms. Shanton with violating

both statutes, and the court dismissed all counts in the indictment but count 1.



              Determining that counts 2 through 54 must be dismissed for violating

principles of double jeopardy, the circuit court declined to address Ms. Shanton’s

remaining questions of constitutionality regarding these counts. The court also declined

to consider the issues raised by Ms. Shanton regarding the sufficiency of the indictment

and the circuit court’s jurisdiction.



              The State now seeks a writ of prohibition to prohibit the circuit court from

enforcing its September 5, 2014, order dismissing counts 2 through 54 of the indictment.



                              II. STANDARD OF REVIEW

              There are limited circumstances in which the State may request a writ of

prohibition in a criminal matter. We have held that

                     “[t]he State may seek a writ of prohibition in this
              Court in a criminal case where the trial court has exceeded or
              acted outside of its jurisdiction. Where the State claims that
              the trial court abused its legitimate powers, the State must
              demonstrate that the court’s action was so flagrant that it was
              deprived of its right to prosecute the case or deprived of a
              valid conviction. In any event, the prohibition proceeding
              must offend neither the Double Jeopardy Clause nor the
              defendant’s right to a speedy trial. Furthermore, the
              application for a writ of prohibition must be promptly
              presented.” Syllabus point 5, State v. Lewis, 188 W.Va. 85,
              422 S.E.2d 807 (1992).

                                             5

Syl. pt. 2, State ex rel. Sims v. Perry, 204 W. Va. 625, 515 S.E.2d 582 (1999).



              The State contends that the circuit court abused its legitimate powers and

deprived the State of its right to prosecute its case against Ms. Shanton. We have held

that when a petitioner contends that a circuit court has abused its legitimate powers, the

Court will consider five factors in determining whether it will issue a writ of prohibition:

              (1) whether the party seeking the writ has no other adequate
              means, such as direct appeal, to obtain the desired relief; (2)
              whether the petitioner will be damaged or prejudiced in a way
              that is not correctable on appeal; (3) whether the lower
              tribunal’s order is clearly erroneous as a matter of law; (4)
              whether the lower tribunal’s order is an oft repeated error or
              manifests persistent disregard for either procedural or
              substantive law; and (5) whether the lower tribunal’s order
              raises new and important problems or issues of law of first
              impression. These factors are general guidelines that serve as
              a useful starting point for determining whether a discretionary
              writ of prohibition should issue. Although all five factors
              need not be satisfied, it is clear that the third factor, the
              existence of clear error as a matter of law, should be given
              substantial weight.

Syl. pt. 4, in part, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).



              Pursuant to these standards, our review will proceed by examining the error

alleged by the State and whether that error constitutes an abuse of the circuit court’s

legitimate powers such that it deprived the State of its right to prosecute the case. Then,

we will evaluate whether the Hoover factors weigh in favor of granting the requested writ

of prohibition.

                                             6

                                   III. ANALYSIS

         A. The circuit court has abused its legitimate powers and deprived
                     the State of its right to prosecute the case.

             The State contends that the question now before the Court is this: “Did the

Circuit Court exceed its legitimate power in dismissing Counts 2 through 54 of the

Indictment each of which charged the defendant with separate violations of West Virginia

Code § 12-3-10b which statute criminalizes the Fraudulent or Unauthorized Use of a

State Purchasing Card?” This question encapsulates two issues: (1) whether the circuit

court erred by collapsing counts 2 through 54 into a single count, thereby effectively

dismissing all but one of those counts, and (2) whether the circuit court erred by

dismissing the condensed count, thereby dismissing all counts in the indictment alleging

violations of W. Va. Code § 12-3-10b.



              1. The circuit court committed clear error by collapsing
                       counts 2 through 54 into a single count.

             The Legislature has “substantive power to define crimes and prescribe

punishments.” Syl. pt. 3, in part, State v. Sears, 196 W. Va. 71, 468 S.E.2d 324 (1996).

The power of courts to convict and sentence defendants in accordance with the crimes

proscribed by the Legislature is limited by the double jeopardy clauses of the West

Virginia and United States constitutions, which prohibit, among other things, multiple

punishments for the same offense. W. Va. Const. art. III, § 5 (“No person shall . . . be


                                           7

twice put in jeopardy of life or liberty for the same offence.”); U.S. Const. amend. V

(“No person shall . . . be subject for the same offense to be twice put in jeopardy of life or

limb . . . .”); syl. pt. 1, Conner v. Griffith, 160 W. Va. 680, 238 S.E.2d 529 (1977) (in

part) (“The Double Jeopardy Clause . . . prohibits multiple punishments for the same

offense.”). We have recognized that the protection against multiple punishments for the

same offense

               “is designed to ensure that the sentencing discretion of courts
               is confined to the limits established by the legislature.
               Because the substantive power to prescribe crimes and
               determine punishments is vested with the legislature, . . . the
               question under the Double Jeopardy Clause whether
               punishments are “multiple” is essentially one of legislative
               intent.”

State v. Gill, 187 W. Va. 136, 141, 416 S.E.2d 253, 258 (1992) (quoting Ohio v. Johnson,

467 U.S. 493, 499 (1984)).



               In determining whether double jeopardy principles have been violated by

the prosecution of multiple violations of the same statute, courts must ascertain whether

the offenses are part of the same “unit of prosecution” designated by the Legislature.

United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 221 (1952). The unit of

prosecution “determines what separates a single violation of the statute from multiple

violations.” United States v. Diana Shipping Servs., S.A., 985 F. Supp. 2d 719, 727 (E.D.

Va. 2013); see also State ex rel. Porter v. Recht, 211 W. Va. 396, 399, 566 S.E.2d 283,

286 (2002) (“[T]he analysis of whether a criminal defendant may be separately convicted


                                              8

and punished for multiple violations of a single statutory provision turns upon the

legislatively-intended unit of prosecution.” (internal quotation marks omitted)); People v.

Simon, 266 P.3d 1099, 1106 (Colo. 2011) (en banc) (defining the unit of prosecution as

“the manner in which a criminal statute permits a defendant’s conduct to be divided into

discrete acts for purposes of prosecuting multiple offenses.” (internal quotation marks

omitted)); see generally syl. pt. 9, State v. McGilton, 229 W. Va. 554, 729 S.E.2d 876

(stating that convictions do not violate double jeopardy principles when “the facts

demonstrate separate and distinct violations of the statute”).

              Whether a particular course of conduct involves one or more
              distinct “offenses” under the statute depends on this
              congressional choice, and [f]ew, if any, limitations are
              imposed by the Double Jeopardy Clause on the legislative
              power to define offenses. In order to determine the proper
              unit of prosecution for a disputed statute, a district court is
              required to begin with the statutory text.

Diana Shipping, 985 F. Supp. 2d at 727 (citation omitted) (internal quotation marks

omitted). When examining the statutory text, we look to the operative verb; it defines the

offense described in the statute. Porter, 211 W. Va. at 399, 566 S.E.2d at 286 (“[I]t is

axiomatic that the operative verb employed in the statute defines the offense . . . .”).



              Counts 2 through 54 of the indictment against Ms. Shanton allege

violations of W. Va. Code § 12-3-10b. That statuteprovides:

                      It is unlawful for any person to use a state purchase
              card, issued in accordance with the provisions of section ten-a
              of this article, to make any purchase of goods or services in a
              manner which is contrary to the provisions of section ten-a of

                                              9
             this article or the rules promulgated pursuant to that section.
             Any person who violates the provisions of this section is
             guilty of a felony and, upon conviction thereof, shall be
             confined in the penitentiary not less than one nor more than
             five years, or fined no more than five thousand dollars, or
             both fined and imprisoned.

W. Va. Code § 12-3-10b (1996). On January 8, 2014, Senate Bill No. 267 was

introduced, proposing the following amendments to W. Va. Code § 12-3-10b, with strike­

throughs indicating language to be deleted from the 1996 version of the statute and

underscoring indicating new language to be added:

                     It is unlawful for any person to use a state purchase
             card, issued in accordance with the provisions of section ten-a
             of this article, to make any purchase of goods or services in a
             manner which is contrary to the provisions of section ten-a of
             this article or the rules promulgated pursuant to that section:
             Provided, That such action is a continuing offense beginning
             when the purchasing card is issued or obtained by the person
             and any county where a substantial or material element of the
             offense occurred has jurisdiction to prosecute the offense.
             Any person who violates the provisions of this section is
             guilty of a felony and, upon conviction thereof, shall be
             confined imprisoned in the penitentiary a state correctional
             facility not less than one nor more than five years, or fined no
             more than $5,000, or both fined and imprisoned.

Following numerous revisions by the Legislature, Senate Bill No. 267 was passed by

legislative act (“the Act”) on March 8, 2014, amending and reenacting W. Va. Code § 12­

3-10b.6 As amended by the Act, W. Va. Code § 12-3-10b (2014) now provides:


      6
        The Act also amended and reenacted W. Va. Code § 6-9-2c (2014) (prohibiting
fraudulent or unauthorized use of a local government purchasing card). The changes to
the Code sections in the Act became effective on June 6, 2014.


                                           10

                     (a) It is unlawful for any person to use a state
             purchasing card, issued in accordance with the provisions of
             section ten-a [§ 12-3-10a] of this article, to make any
             purchase of goods or services in a manner which is contrary
             to the provisions of section ten-a of this article or the rules
             promulgated pursuant to that section.
                     (b) It is unlawful for any person to knowingly or
             intentionally possess with the intent to use a purchasing card
             without authorization pursuant to section ten-a of this article
             or the rules promulgated pursuant to that section.
                     (c) Any person who violates the provisions of this
             section is guilty of a felony and, upon conviction thereof,
             shall be imprisoned in the penitentiary not less than one year
             nor more than five years, or fined no more than $5,000, or
             both fined and imprisoned.
                     (d) A violation of this section may be prosecuted in the
             county in which the card was issued, unlawfully obtained,
             fraudulently used, used without authorization, or where any
             substantial or material element of the offense occurred.

Notably, the amended statute does not include the continuing offense language present in

the bill originally introduced to the Legislature. However, the Act contains the following

preamble:

                   AN ACT to amend and reenact . . . § 12-3-10b of said
             code, all relating to fraudulent or unauthorized use of
             purchasing cards; ensuring that the courts of West Virginia
             have jurisdiction over fraudulent or unauthorized use of
             purchasing cards; establishing jurisdiction; and defining the
             conduct as a continuing offense.

(Emphasis added).




                                           11

                  The parties do not dispute that the controlling version of W. Va. Code § 12­

3-10b in this case is the 1996 version of the statute.7 The dispute here involves the effect

of the preamble to the Act on the interpretation and application of the controlling statute,

the 1996 version of W. Va. Code § 12-3-10b.



                  Statutory preambles are not part of the enacted law and “cannot control the

enacting part of the statute which is expressed in clear and unambiguous terms.” Slack v.

Jacob, 8 W. Va. 612, 628 (1875). However, the Court has long held that

                         [a] preamble may be consulted in some cases to
                  ascertain the intentions of the Legislature. But it is chiefly
                  from the main body the purview of the act, that the will of the
                  Legislature is to be learned; when this is clear and express,
                  the preamble will not avail to contradict it.

Syl. pt. 7, id.


        7
         The 2014 version of W. Va. Code § 12-3-10b has not changed the elements of
the crime described therein, nor has it changed the possible penalties, and the Legislature
has not expressed its intent that the newest version of the statute apply retroactively.
Thus, the controlling version of the statute to the facts of this case is the 1996 version.
See syl. pt. 4, State v. Easton, 203 W. Va. 631, 510 S.E.2d 465 (1998) (“‘The Statute in
force at the time of the commission of an offense governs the character of the offense,
and generally the punishment prescribed thereby, unless, as provided by our statute, the
defendant elects to be punished as provided in an amendment thereof.’ Syllabus point 4,
State v. Wright, 91 W.Va. 500, 133 S.E. 764 (1922).”); In re Daniel H., 678 A.2d 462,
468 (Conn. 1996) (“In criminal cases, to determine whether a change in the law applies to
a defendant, we generally have applied the law in existence on the date of the offense,
regardless of its procedural or substantive nature.”); see generally State v. Sessions, 287
P.3d 497 (Utah 2012) (finding no error when the lower court ordered the maximum
sentence under an older version of the controlling statute, where the newer version of the
statute shared the same maximum sentence but had a shorter minimum sentence).


                                                12

              The circuit court, relying on the preamble to the Act, concluded in its

September 5, 2014, order:

                     [T]he recent legislative intent persuades this Court to
              construe the word “use” to refer to not singular swipes or
              verifications of the purchasing card, but the overall pattern of
              use, such that Counts 2 through 54 would necessarily be
              collapsed into one count of violation of W.Va. Code §12-3­
              10b in order to avoid running afoul of double jeopardy
              principles.



              In its brief to this Court, the State maintains that “the Circuit Court’s

reasoning is flawed and clearly erroneous, based on the introductory paragraph of a

Senate Bill rather than the actual language of the revised statute.” The State asserts that

the language of W. Va. Code § 12-3-10b (1996) is clear and unambiguous and that

because the Legislature “omitted any reference to the criminal conduct being continuing

in character, . . . the ordinary meaning of the language must be given to it: each offense is

a separate offense, not a continuing offense.”



              Ms. Shanton contends that the circuit court correctly interpreted the statute

and that it did not err by collapsing counts 2 through 54 of the indictment into one count.

She proposes that “[l]ooking at the text of either the original statute under which [she]

was charged or at the amended statute, the text does not express a clear indication of

whether the offense is of a continuing nature.” She insists that “to determine whether the


                                             13

offense is of a continuing nature, a court must necessarily engage the rules of statutory

interpretation.” Ms. Shanton argues that “the operative verb [‘use’] and unit of

prosecution would support a reading that a violation of § 12-3-10b is a continuing offense

and that [she] can only be charged once for a [sic] alleged continuing course of conduct.”



              Upon our review of the circuit court’s order, we observe that the circuit

court has skipped the vital first step in construing a statute: making a determination that

the statute is ambiguous. “A statute is open to construction only where the language used

requires interpretation because of ambiguity which renders it susceptible of two or more

constructions or of such doubtful or obscure meaning that reasonable minds might be

uncertain or disagree as to its meaning.” Hereford v. Meek, 132 W. Va. 373, 386, 52

S.E.2d 740, 747 (1949). “Where the language of a statute is free from ambiguity, its plain

meaning is to be accepted and applied without resort to interpretation.” Syl. pt. 2,

Crockett v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 (1970); see also syl. pt. 2, Mace v.

Mylan Pharm., Inc., 227 W. Va. 666, 714 S.E.2d 223 (2011) (“‘“A statutory provision

which is clear and unambiguous and plainly expresses the legislative intent will not be

interpreted by the courts but will be given full force and effect.” Syl. Pt. 2, State v.

Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951).’ Syl. Pt. 1, State v. Jarvis, 199 W.Va.

635, 487 S.E.2d 293 (1997).”). Thus, only when a court determines that a statute is

ambiguous may it then go on to interpret the meaning of that statute by considering,

among other things, language in a legislative act’s preamble. See syl. pt. 7, Slack, 8 W.


                                            14

Va. 612. If the statutory language is clear and unambiguous, the court must apply the

statute as it is written.



               Upon our review of W. Va. Code § 12-3-10b (1996), we determine that the

statute is not ambiguous. The portion of the statute at issue is as follows:

                       It is unlawful for any person to use a state purchase
               card, issued in accordance with the provisions of section ten-a
               of this article, to make any purchase of goods or services in a
               manner which is contrary to the provisions of section ten-a of
               this article or the rules promulgated pursuant to that section.

W. Va. Code § 12-3-10b (emphasis added). The word “use” when used as a verb can

mean “[t]o employ for the accomplishment of a purpose; to avail oneself of” and “[t]o put

into practice or employ habitually or as a usual way of doing something.” Black’s Law

Dictionary 1776 (10th ed. 2014). The State argues that “use” in W. Va. Code § 12-3-10b

(1996) refers to the employment of a P-Card to make a single purchase, and Ms. Shanton

argues that the word refers to the employment of a P-Card to make a purchase or

purchases over a period of time. We find that the meaning of the word as it is used in the

statute can be deduced from the context in which it is used. See State v. Ziska, 334 P.3d

964, 967 (Or. 2014) (“Obviously, the verb ‘use’ can be ‘used’ in a variety of senses. . . .

[To] reveal which sense the legislature had in mind . . . we look to the terms of the statute

and how the words in dispute are used in context.”).




                                             15

              Parsing the relevant statutory text according to the rules of grammar, we

find that “use” acts as a transitive verb. All transitive verbs have objects, and the object

provides the context for the transitive verb. The Chicago Manual of Style 5.96, at 229

(16th ed. 2010); see also State v. Castleberry, 293 P.3d 757, 764 (Kan. Ct. App. 2013)

(“Focus on the object . . . is therefore critical to giving full effect to the term “use.”);

Pizzo v. State, 235 S.W.3d 711, 721 (Tex. Crim. App. 2007) (“[A] transitive verb . . .

requires a direct object to complete the meaning of the sentence.”). Here, the object of the

transitive verb is “purchase.” As used in the statute, “purchase” is a singular noun defined

as “an instance of buying.” Black’s Law Dictionary 1429 (10th ed. 2014). Thus, the effect

given to the transitive verb “use” by the singular object “purchase” is to limit “use” to a

singular event. In other words, as it is employed in the statute, “use” can only be defined

as a single incident of employing a P-Card. Therefore, each purchase made in violation of

the statute constitutes a separate chargeable offense and a distinct unit of prosecution.

Had the Legislature intended otherwise, it could have replaced the singular object with

the plural object “purchases” or included language specifying that the unlawful “use”

takes place over a period of time. See, e.g., 18 U.S.C. § 1029(a) (2002) (“Whoever . . . (2)

knowingly and with intent to defraud traffics in or uses one or more unauthorized access

devices during any one-year period, and by such conduct obtains anything of value

aggregating $1,000 or more during that period . . . shall, if the offense affects interstate or

foreign commerce, be punished . . . .”).




                                              16

              Our reasoning here echoes our analysis in a comparable case, State v.

Green, 207 W. Va. 530, 534 S.E.2d 395 (2000). In Green, the defendant obtained money

orders for $40 each which she then altered to show $400 each, and she forged the

endorsements on the money orders. 207 W. Va. at 533, 534 S.E.2d at 398. She presented

the money orders to a bank in Huntington, West Virginia, which exchanged them for

money. Id. The defendant was indicted on thirty-two counts of forgery, uttering, and

obtaining goods by false pretenses. Id. at 532, 534 S.E.2d at 397. She entered into a plea

deal whereby the State dismissed all of the counts of forgery and obtaining goods by false

pretenses in the indictment in exchange for her entering a plea of guilty to ten counts of

uttering. Id. She was sentenced to a one-to-ten year term of imprisonment on each count,

with the first eight counts to be served consecutively and the remaining two counts to be

served concurrently with the eighth count. Id. at 533, 534 S.E.2d at 398.



              Following conviction, the defendant filed a habeas petition for post-

conviction relief with this Court, “claiming that her consecutive sentences violated

double jeopardy and proportionality principles.” Id. The Court ordered the circuit court to

conduct an omnibus hearing. Id. At the hearing, the defendant testified that, under the

language of the controlling statute, “this was one crime [not ten]. I passed these money

orders as a set of ten with one teller with one deposit slip. It was one transaction.” Id. The

circuit court concluded “that the conduct encompassed by the ten pleaded-to counts of the




                                             17

indictment were part of one continuous transaction, thus warranting relief.” Id. (internal

quotation marks omitted).



              On appeal, this Court disagreed and reversed the circuit court, concluding

that the lower court had misconstrued the controlling statute, W. Va. Code § 61-4-5

(1961).8 Id. at 538, 534 S.E.2d at 403. That statute states in relevant part with emphasis

added: “If any person forge any writing . . . to the prejudice of another’s right, or utter or

attempt to employ as true such forged writing, knowing it to be forged, he shall be guilty

of a felony . . . .” W. Va. Code § 61-4-5. In Green, the issue before the Court was

whether the unit of prosecution was fixed by the number of money orders passed or the

number of transactions. The State argued that “because the statute uses of [sic] the term

‘writing’ in its singular form, the proper unit of prosecution for uttering must

correspondingly be the number of individual writings passed.” Id. at 537, 534 S.E.2d at

402. The Green Court agreed with the State and recognized that “any,” which is used in

the statute in its singular form, is used in the context of the singular noun “writing.” Id. at

537–38, 534 S.E.2d at 402–03. The Court concluded, “The only logical result that could

be reached after examining § 61–4–5(a) is that each time a person utters a forged

document, he shall be guilty of a felony.” Id. at 538, 534 S.E.2d at 403 (internal quotation

marks omitted).

       8
       W. Va. Code § 61-4-5 was amended in 1998, but the language at issue in Green
remained the same following the amendments.


                                              18

             In reaching this conclusion, the Green Court relied on the same rules of

grammar that apply in the present case. In Green, the unit of prosecution was controlled

by the operation of the transitive verb “utter,” which means “to put or send . . . into

circulation.” Black’s Law Dictionary 1781 (10th ed. 2014). “Writing,” the object of the

transitive verb, provides the context for interpreting the transitive verb. The Court

determined that the Legislature used a singular noun as the object of the transitive verb.

Use of a singular noun provides the context for “utter.” In that context, as the Court

concluded, the statute can only mean that each writing uttered in Green gave rise to one

violation of W. Va. Code § 61-4-5.



             Ms. Shanton asserts that State ex rel. Porter v. Recht, 211 W. Va. 396, 566

S.E.2d 283 (2002), which distinguishes itself from Green, is directly on point and

supports her position. In Porter, the defendant was charged with twenty counts of false

swearing. 211 W. Va. at 398, 566 S.E.2d at 285. These charges arose from two affidavits

signed by the defendant that were each comprised of ten separate statements. Id. The

State alleged that each separate statement—twenty in all—constituted separate violations

of W. Va. Code § 61-5-2 (1923). Id. The defendant, on the other hand, argued that the

charges were “multiplicitous” and violated double jeopardy principles. Id. W. Va. Code §

61-5-2 provides with emphasis added, “To willfully swear falsely, under oath or

affirmation lawfully administered . . . on any occasion other than a trial for a felony,


                                           19

concerning any matter or thing material or not material . . . is false swearing and is a

misdemeanor.”



              In Porter, the State argued that according to Green, the use of the word

“any” in W. Va. Code § 61-5-2 indicates that the Legislature intended that the statute

“necessarily permits separate charges for each false statement set forth in an affidavit.”

211 W. Va. at 399, 566 S.E.2d at 286. However, the Porter Court determined that

“[w]hile this Court clearly focused on the singular nature of ‘any’ in reference to the

writing required for a forgery in Green, it is the act of forgery that is key to the offense,

and not the singular versus plural nature of the writings required to commit a forgery.” Id.

The Court continued:

                      In determining whether the Legislature intended each
              false statement included in an affidavit, or the entire affidavit
              as a whole, as the unit of prosecution under the false swearing
              statute, we must look to the gravamen of the offense of false
              swearing. Rather than the making of the individual false
              statements, it is the act of willfully swearing to the
              truthfulness of those statements while under oath, whether
              they be singular or multiple in number, that is the essence of
              the charge of false swearing under West Virginia Code § 61–
              5–2. Given the mechanics of executing an affidavit, the act of
              swearing to the veracity of the statement(s) set forth
              cumulatively within the document occurs after the affidavit,
              complete with averments, has been prepared for the affiant’s
              signature. While the signature is not an equivalent of the oath,
              it is the method by which the affiant indicates that he has
              sworn to the veracity of the statements set forth above his
              signature.




                                             20

Id. at 399–400, 566 S.E.2d at 286–87. Accordingly, the Court held, “An affiant who

commits the act of swearing to the veracity of one or more matters set forth in an

affidavit may only be charged with a single count of false swearing within the meaning of

West Virginia Code § 61–5–2 (1923) (Repl.Vol.2000).” Syl. pt. 2, id.



              Ms. Shanton insists that Porter supports her position that “the operative

verb ‘to use’ a state purchase card . . . encompasses any and all purchases of ‘goods or

services’” and that “[i]t is not a single use of the state purchase card that is an offense, but

rather the person’s overall use of the state purchase card, if such use is in a manner

contrary to the code or rules.” We disagree.



              Green and Porter are distinguished by the operative verbs used in the

statutes at issue in those cases. In Green, the operative verb “utter” is transitive; in

Porter, the operative verb “swear” is intransitive and means “[t]o take an oath.” Black’s

Law Dictionary 1677 (10th ed. 2014). “An intransitive verb does not require an object to

express a complete thought . . . .” The Chicago Manual of Style 5.96, at 229 (16th ed.

2010). While consideration of words in the statute other than the operative verb—

specifically, the direct object of the verb—was essential in ascertaining the meaning of

the transitive verb in Green, the opposite was true in Porter. Because the operative verb

in the present matter, which defines the offense, is transitive rather than intransitive, the

analysis in Green is comparable, while the analysis in Porter is not.


                                               21

              Although we conclude that W. Va. Code § 12-3-10b is not ambiguous and

does not require interpretation to discern legislative intent, we note that our construction

thereof is consistent with our treatment of similar statutes. W. Va. Code § 61-3C-13(c)

(1989) is one such instance. That statute provides, among other things, that a person is

guilty of a felony when that person “knowingly, willfully and with intent to defraud . . .

uses . . . any . . . access device [obtained without authority].” See W. Va. Code § 61-3C­

13(a)(1) (defining “access device” as including “any card . . . that can be used . . . to

obtain money, goods, services, or any other thing of value.”). In State v. Ross, No. 12­

0441, 2013 WL 2462166, at *1, *3 (W. Va. June 7, 2013) (memorandum decision), the

defendant had been found guilty of three counts of fraudulent use of an access device in

violation of W. Va. Code § 61-3C-13(c) after he used a stolen credit card in three

different locations, and this Court upheld his conviction. In so doing, the Court implicitly

recognized that use of an access device within the meaning of W. Va. Code § 61-3C­

13(c) refers not to the continued employment of the stolen card over a period of time but

to the individual swipes of the card.



              The circuit court erred by applying a meaning to W. Va. Code § 12-3-10b

that is contrary to the plain language used therein. We hold that pursuant to the plain

language of W. Va. Code § 12-3-10b (1996), each purchase of goods or services made

using a state purchasing card in a manner contrary to the provisions of the W. Va. Code §


                                            22

12-3-10a (2007) or rules promulgated pursuant to that section involves a distinct offense.

In view of this holding, we conclude that counts 2 through 54 of the indictment constitute

distinct offenses, and prosecution under each count does not violate double jeopardy

principles. Thus, the circuit court abused its legitimate powers by condensing counts 2

through 54 of the indictment into a single count. This abuse of power has deprived the

State of its right to prosecute its case against Ms. Shanton.9


       9
         In addition to challenging the indictment on double jeopardy grounds, Ms.
Shanton also argues in her brief that counts 2 through 54 are insufficient as a matter of
law because they do not substantially follow the language of the statute and do not fully
inform the accused of the particular offense with which she is charged. We disagree.

      Syllabus point 4 of Ballard v. Dilworth, 230 W. Va. 449, 739 S.E.2d 643 (2013),
provides:

              “‘An indictment is sufficient under Article III, § 14 of the West
       Virginia Constitution and W.Va. R.Crim. P. 7(c)(1) if it (1) states the
       elements of the offense charged; (2) puts a defendant on fair notice of the
       charge against which he or she must defend; and (3) enables a defendant to
       assert an acquittal or conviction in order to prevent being placed twice in
       jeopardy.’ Syl. Pt. 6, State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20
       (1999).” Syl. Pt. 5, State v. Haines, 221 W.Va. 235, 654 S.E.2d 359 (2007).

       Counts 2 through 54 all accuse Ms. Shanton of committing the offense of
fraudulent or unauthorized use of a P-Card in violation of W. Va. Code § 12-3-10b, thus
informing her of the particular offense with which she is charged. Each of these counts
includes the elements of the offense charged, to-wit: (1) use of a P-Card (2) to make any
purchase (3) of goods or services (4) in a manner contrary to W. Va. Code § 12-3-10a or
the rules promulgated pursuant to that section. See discussion of the elements of W. Va.
Code § 12-3-10b infra Part III.A.2. Each count contains the following language that
significantly tracks the language of the statute: “[S]he did use a state purchase card to
make a purchase of goods and services in a manner contrary to the provisions of law,
and/or for purchases which were not for official state purposes.” Finally, each count
describes with specificity when and how Ms. Shanton has allegedly violated W. Va. Code
                                                                           (continued . . .)

                                             23

        2. The circuit court committed clear error by dismissing every count
                   alleging a violation of W. Va. Code § 12-3-10b.

              As discussed supra, the double jeopardy clause prohibits multiple

punishments for the same offense. Syl. pt. 1, Conner, 160 W. Va. 680, 238 S.E.2d 529.

We held in syllabus point 8 of State v. Zaccagnini, 172 W. Va. 491, 308 S.E.2d 131

(1983), that “[w]here the same act or transaction constitutes a violation of two distinct

statutory provisions, the test to be applied to determine whether there are two offenses or

only one is whether each provision requires proof of an additional fact which the other

does not.” Accord Blockburger v. United States, 284 U.S. 299, 304 (1932). This test is

“traditionally regarded as ‘a rule of statutory construction . . . [based on] . . . [t]he

assumption underlying the rule . . . that [the Legislature] ordinarily does not intend to

punish the same offense under two different statutes.’” Gill, 187 W. Va. at 142, 416

S.E.2d at 259 (first two alterations in original) (quoting Whalen v. United States, 445 U.S.

684, 691–92 (1980)). However, the test does not apply where

              the [L]egislature has made a clear expression of its intention
              to aggregate sentences for related crimes. If no such clear
              legislative intent can be discerned, then the court should
              analyze the statutes under the test set forth in Blockburger 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 [L]egislature
              intended to create separate offenses.


§ 12-3-10b, enabling her to assert an acquittal or conviction in order to prevent being
placed twice in jeopardy. We conclude that the indictment is sufficient.


                                            24
Syl. pt. 8, in part, id.



                Below, the circuit court did not make any findings as to Legislative intent,

instead skipping directly to applying the Blockburger test. Pursuant to Blockburger, the

circuit court determined that the charges against Ms. Shanton alleging violations of both

W. Va. Code § 12-3-10b and W. Va. Code § 61-3-24d violated her double jeopardy

rights, stating in its order:

                [T]his [c]ourt discerns no substantial difference between one
                who acts with specific intent to deprive another of his
                property using false statements, and one who uses a
                purchasing card in a manner contrary to the rules of
                governing such use, where such use includes the verification
                that said use was permitted (thus in so doing, employing the
                false representation that such use was permitted). The other
                elements of these statutes, West Virginia Code §61-3-24d and
                West Virginia Code §12-3-10b(a), align . . . . Thus, this Court
                agrees with the defendant that [she] can only be charged with
                either a violation of Section 12-3-10b or a violation of W. Va.
                Code §61-3-24d.

(Internal quotation marks omitted). In seeking this writ, the State asserts that it the circuit

court erred by dismissing counts 2 through 54 of the indictment.



                In our de novo review, we begin by examining the factual allegations

contained in the indictment. Count 1 alleges that Ms. Shanton committed the offense of

fraudulent schemes in violation of W. Va. Code § 61-3-24d in connection with her use of

her P-Card between July 1, 2011, and August 3, 2011. Of the remaining fifty-three counts


                                              25

in the indictment, all of which allege that Ms. Shanton committed the offense of

fraudulent or unauthorized use of a P-Card in violation of W. Va. Code § 12-3-10b, only

one of those counts can be construed as alleging unlawful P-Card use during the

timeframe described in count 1 of the indictment. That count, count 14, alleges that Ms.

Shanton used her P-Card on July 27, 2011, to purchase merchandise totaling $160.06.

Because the prohibition against multiple punishments for the same offense is not

implicated where the alleged crimes do not arise from the same act or transaction, counts

2 through 13 and counts 15 through 54 do not offend double jeopardy principles. While it

is not clear in the indictment whether the conduct described in count 14 is part of the

same transaction described in count 1, upon application of the analysis required by

syllabus point 8 of Gill, it is evident that punishments under both W. Va. Code § 12-3­

10b and W. Va. Code § 61-3-24d for conduct arising from the same act does not violate

double jeopardy principles.



              The first step of the Gill analysis requires courts to determine whether the

Legislature expressed clear intent that actions violating both W. Va. Code § 12-3-10b and

W. Va. Code § 61-3-24d constitute one offense or multiple offenses. W. Va. Code § 12­

3-10b (1996), quoted supra Part III.A.1, does not include any language in the statute

itself nor its legislative history indicating the Legislature’s desire to create multiple

offenses and punishments for the same conduct. On the contrary, W. Va. Code § 61-3­

24d does contain a relevant provision. That statute provides:


                                            26

                     (a) Any person who willfully deprives another of any
              money, goods, property or services by means of fraudulent
              pretenses, representations or promises shall be guilty of the
              larceny thereof.
                     (b) In determining the value of the money, goods,
              property or services referred to in subsection (a) of this
              section, it shall be permissible to cumulate amounts or values
              where such money, goods, property or services were
              fraudulently obtained as part of a common scheme or plan.
                     (c) A violation of law may be prosecuted under this
              section notwithstanding any other provision of this code.

W. Va. Code § 61-3-24d (emphasis added).



              In State v. Coles, 234 W. Va. 132, 763 S.E.2d 843 (2014), the Court

examined W. Va. Code § 61-3-24d(c) and held in syllabus point 4:

                     The Legislature has made clear that the fraudulent
              scheme offense under W. Va. Code § 61-3-24d (1995)
              (Repl.Vol.2010) is a separate offense that may be prosecuted
              in addition to any other offense under the Code. Therefore,
              double jeopardy principles do not preclude a conviction and
              sentence . . . for any other offense arising out of the same
              transaction or occurrence.

(In part). However, Coles was decided thirteen days after the circuit court’s order was

entered in this case. At the time the order was entered, syllabus point 7 of State v. Rogers,

209 W. Va. 348, 547 S.E.2d 910 (2001), set forth the controlling law:

                     The provision in West Virginia Code § 61–3–24d
              (1995) (Repl.Vol.2000) [defining the crime of larceny by
              fraudulent scheme] found in subsection (c), which reads, “A
              violation of law may be prosecuted under this section
              notwithstanding any other provision of this code,” does not
              express a clear legislative intent to create a separate and
              distinct offense, with separate, additional punishment for the
              same acts.

                                             27

              Because Coles was decided after the circuit court entered the order on

appeal, Rogers must control in this case. Coles cannot be applied retroactively because

doing so would permit W. Va. Code § 61-3-24d to function as an ex post facto law by

allowing, particularly where two or more crimes involve the same elements, greater

punishments than might have been anticipated when the crime was committed. See Bouie

v. City of Columbia, 378 U.S. 347, 353–54 (1964) (“[A]n unforeseeable judicial

enlargement of a criminal statute, applied retroactively, operates precisely like an ex post

facto law . . . . If a judicial construction of a criminal statute is unexpected and

indefensible by reference to the law which had been expressed prior to the conduct in

issue, it must not be given retroactive effect.” (internal quotation marks omitted)).10

Consequently, we must consider whether the circuit court correctly decided the case

pursuant to Rogers.



              Because Rogers controls, we are constrained by the holding in syllabus

point 7 to find no clear legislative intent in W. Va. Code § 61-3-24d indicating that the


       10
         The U.S. Supreme Court has held that ex post facto laws include “‘[e]very law
that changes the punishment, and inflicts a greater punishment, than the law annexed to
the crime, when committed.’” Peugh v. United States, ___ U.S. ___, ___, 133 S. Ct.
2072, 2081 (2013) (quoting Calder v. Bull, 3 U.S. 386, 390 (1798)). Both the United
States Constitution and the West Virginia Constitution prohibit the passing of ex post
facto laws. U.S. Const. art. I, § 9, cl. 3; W. Va. Const. art. III, § 4.


                                            28

statute was intended to provide a separate punishment for the same acts giving rise to a

violation of another statutory provision. Therefore, our analysis must continue on to the

second part of the analysis set forth in syllabus point 8 of Gill: application of the

Blockburger test. Under this test, if each offense requires an element of proof the other

does not, double jeopardy principles are not offended by charging the defendant with

both crimes.



               The full text of W. Va. Code § 12-3-10b (1996) is quoted supra Part

III.A.1. The elements of that crime are summarized as follows: (1) use of a P-Card (2) to

make any purchase (3) of goods or services (4) in a manner contrary to W. Va. Code §

12-3-10a or the rules promulgated pursuant to that section. The elements of W. Va. Code

§ 61-3-24d, which is quoted supra, are summarized as follows: (1) willful deprivation (2)

of any money, goods, property or services (3) of another person (4) by means of

pretenses, representations, or promises (5) that are fraudulent. See Rogers, 209 W. Va. at

358, 547 S.E.2d at 920.



               The circuit court did not discern any difference between the elements of the

two crimes. This conclusion is clearly erroneous. Unlike W. Va. Code § 12-3-10b, W.

Va. Code § 61-3-24d requires that a defendant have used pretenses, representations, or

promises that were fraudulent. Additionally, W. Va. Code § 12-3-10b contains elements




                                            29

that do not appear in W. Va. Code § 61-3-24d, including use of a P-Card and action that

is contrary to W. Va. Code § 12-3-10a or the rules promulgated pursuant to that section.



              We conclude that both W. Va. Code § 12-3-10b and W. Va. Code § 61-3­

24d each contain elements that the other statute does not. Therefore, pursuant to Gill and

Blockburger, a charge under each of these statutes for conduct arising out of the same

transaction or occurrence does not offend double jeopardy principles. We now hold that

W. Va. Code § 12-3-10b (1996) and W. Va. Code § 61-3-24d (1995) each contain

elements the other does not, and punishment under these two statutes for conduct arising

from the same act or transaction does not violate double jeopardy principles.

Accordingly, the circuit court abused its legitimate powers by dismissing every count in

the indictment alleging a violation of W. Va. Code § 12-3-10b, and this action deprived

the State of its right to prosecute its case against Ms. Shanton.



                         B. The writ of prohibition should issue

              Hoover requires that the Court consider five factors in determining whether

it should issue a writ of prohibition. Syl. pt. 4, Hoover, 199 W. Va. 12, 483 S.E.2d 12,

quoted supra Part II.     The parties dispute whether the factors weigh for or against

granting the writ.




                                             30

              First, Ms. Shanton asserts that the State may seek a direct appeal, and that

this weighs against granting the writ. She claims that a direct appeal is available pursuant

to W. Va. Code § 58-5-30 (1998) (permitting the state to appeal the dismissal of an

indictment “held bad or insufficient by the judgment of a circuit court”) because

“[c]ounts 2 through 54 of the Indictment were clearly dismissed for being bad and/or

insufficient.” She cites to State v. Lewis, 188 W. Va. 85, 95, 422 S.E.2d 807, 817 (1992),

which provides that “if the adverse ruling involves the sufficiency of an indictment,

which can be appealed under W.Va.Code, 58–5–30, there is no need for the State to use

prohibition because it has an adequate remedy.” See also State ex rel. Forbes v. Canady,

197 W. Va. 37, 42, 475 S.E.2d 37, 42 (1996) (“Although the State does not have the

ability to appeal the dismissal of an indictment when it is not bad or insufficient, we

recognize that the State is armed with another right of appellate review in the form of

prohibition.”), superseded by rule on other grounds as recognized in State v. Hartman,

229 W. Va. 749, 735 S.E.2d 898 (2012).



              We disagree with Ms. Shanton’s assertion that the circuit court dismissed

counts 2 through 54 of the indictment for being “bad or insufficient.” In Forbes, the

Court explained that

                     [a]n indictment is bad or insufficient for purposes of
              analysis under W. Va.Code 58–5–30 when within the four
              corners of the indictment it: (1) fails to contain the elements
              of the offense to be charged and sufficiently apprise the
              defendant of what he or she may be prepared to meet; and (2)


                                            31
              fails to contain sufficient accurate information to permit a
              plea of former acquittal or conviction.

197 W. Va. at 41, 475 S.E.2d at 41 (citing Russell v. United States, 369 U.S. 749, 763–64

(1962)). The circuit court’s order does not indicate that the indictment was bad or

insufficient. Additionally, the order does not include any findings that the indictment

failed to contain all of the elements of the offense addressed therein, that the indictment

failed to apprise Ms. Shanton of what she must be prepared to meet, or that the

indictment failed to contain sufficient accurate information to permit a plea of former

acquittal or conviction. It is clear that this indictment was not dismissed for being bad or

insufficient. See id. (“[B]ecause there is no contention that the indictment failed to

contain all the elements of the offense of malicious assault, or that it did not sufficiently

apprise the defendant of what he was prepared to meet, or that it failed to contain

sufficient accurate information to permit a plea of former acquittal or conviction, then the

potential dismissal of the indictment has nothing to do with its being bad or with its

sufficiency.”). Thus, W. Va. Code § 58-5-30, does not permit an appeal in this case.

Indeed, the Court has recognized that “prohibition is an appropriate method for the State

to challenge the dismissal of an indictment.” State ex rel. State v. Gustke, 205 W. Va. 72,

76, 516 S.E.2d 283, 287 (1999). The first Hoover factor therefore weighs in favor of

granting the writ requested by the State.



              The second Hoover factor—whether the petitioner will be damaged or

prejudiced in a way that is not correctable on appeal—also weighs in favor of the State.

                                             32

The State would be foreclosed from challenging the dismissal of the counts on appeal

following trial. See Lewis, 188 W. Va. at 89, 422 S.E.2d at 811 (“[T]he State’s right to an

appeal in a criminal case is contained in W.Va.Code, 58–5–30, and is confined to those

cases where an indictment is held bad or insufficient by the judgment or order of the

circuit court[.]” (internal quotation marks omitted)).



              The third Hoover factor, which involves the determination of whether the

circuit court committed clear error as a matter of law, weighs in favor of granting the writ

in the present case. As set forth in Part III.A. supra, the circuit court clearly erred when it

condensed counts 2 through 54 of the indictment into a single count and when it

dismissed that condensed count. Pursuant to Hoover, we provide this factor substantial

weight.



              The fourth Hoover factor—whether the error is an oft repeated error—does

not weigh in favor of granting the writ. Neither party has alleged that W. Va. Code § 12­

3-10b has been consistently misapplied.



              Finally, the fifth Hoover factor, which weighs in favor of granting a writ of

prohibition where an issue of first impression is presented, is supportive of the State’s

position. As the State points out in its brief, W. Va. Code § 12-3-10b “has not been the




                                              33

subject of any decisions of this [C]ourt.” In the present matter, we have addressed the

issue of first impression by creating a new syllabus point.



               In summary, the first, second, third, and fifth Hoover factors weigh in favor

of granting the State’s requested writ of prohibition. Pursuant to Hoover, we conclude

that the State is entitled to the writ it seeks.



                                      IV. CONCLUSION

               For the reasons set forth above, we conclude that the circuit court has

abused its legitimate powers and denied the State the right to prosecute its case against

Ms. Shanton. Further, we conclude that the Hoover factors weigh in favor of granting the

requested writ of prohibition to prohibit enforcement of the circuit court’s order entered

September 5, 2014. Accordingly, we grant the writ, vacate the September 5, 2014, order,

and remand this case for further proceedings consistent with this opinion.



                                                                              Writ granted.




                                                   34

