                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                        FILED
                                                                                March 7, 2016
vs) No. 14-1014 (Randolph County 13-F-26)                                       RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
Rebecca Lou Blankenship,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
         Petitioner Rebecca Lou Blankenship, by counsel Jeremy B. Cooper, appeals the Circuit
Court of Randolph County’s September 16, 2014, order sentencing her to one to three years of
incarceration for her conviction for driving while her license was revoked for DUI, third or
subsequent offense, and to not more than one year for her conviction of the misdemeanor count
of driving with no insurance. Petitioner’s sentences were to be served consecutively. The State,
by counsel Derek A. Knopp, filed a response in support of the circuit court’s order. On appeal,
petitioner argues that the circuit court erred in (1) failing to grant her motion for a bifurcated
trial; (2) permitting the jury to consider a document that implied an inaccurate number of prior
convictions; (3) and allowing the State to introduce a prejudicially defective criminal conviction
to be used as a predicate offense. Petitioner also alleges cumulative error.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.

         In February of 2013, petitioner was indicted on one felony count of driving while her
license was revoked for DUI, third or subsequent offense in violation of West Virginia Code §
17B-4-3(b); one misdemeanor count of driving with no insurance in violation of West Virginia
Code § 17D-2A-3; and one misdemeanor count of driving with no registration in violation of
West Virginia Code § 17A-3-1(a). The charges arose out of a traffic stop wherein petitioner was
initially pulled over for an expired registration. In March of 2013, petitioner filed a motion to
bifurcate the trial. No further action was taken in regard to this motion. A jury trial was set for
May 31, 2013. Petitioner’s trial was delayed, however, due to continuances and her failure to
appear on two occasions resulting in capiases for her arrest.

        In May of 2014, petitioner’s jury trial commenced. During trial, the State presented
testimony from the Randolph County Sheriff’s deputy who initiated petitioner’s traffic stop.
Petitioner testified at trial that she had not been twice convicted of driving while her license was

                                                 1

revoked for DUI, but rather only once. The State admitted evidence contrary to petitioner’s
testimony, including a certified copy of her DMV driving history and two certified magistrate
court disposition forms, which showed petitioner’s two prior convictions for driving while her
license was revoked for DUI. Based on the evidence, the jury found petitioner guilty of all three
counts as contained in the indictment. Petitioner was subsequently sentenced to one to three
years of incarceration for her conviction of driving while license revoked for DUI, third or
subsequent offense, in violation of West Virginia Code § 17B-4-3(b), and was assessed a $3,000
fine. She was also sentenced to not more than one year in jail for her conviction of the
misdemeanor count of no insurance in violation of West Virginia Code § 17D-2A-3, and was
assessed a $1,000 fine. The circuit court ordered these two sentences to run consecutively.
Petitioner was also assessed a $100 fine for her conviction on one misdemeanor count of no
registration in violation of West Virginia Code § 17A-3-1(a). The circuit court entered the
sentencing order on September 16, 2014, and it is from this order that petitioner appeals.

        “The Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse
of discretion standard, unless the order violates statutory or constitutional commands.” Syl. Pt. 1,
in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997). On appeal, petitioner first argues
that the circuit court erred by not granting her motion to bifurcate her trial pursuant to our
decision in State v. McCraine, 214 W.Va. 188, 588 S.E.2d 177 (2003). We held as follows in
McCraine:

               “[a] trial court must grant bifurcation in all cases tried before a jury in
       which a criminal defendant seeks to contest the validity of any alleged prior
       conviction as a status element and timely requests that the jury consider the issue
       of prior conviction separately from the issue of the underlying charge.”

Id. at 193, 588 S.E.2d. at 182, syl. pt. 11. While she asserts that the circuit court was still bound
by McCraine at the time of her trial, petitioner’s reliance is misplaced.

We have subsequently held:

               When a defendant is charged with a crime in which a prior conviction is
       an essential element of the current crime charged . . . and does not stipulate to
       having been previously convicted of a crime, the trial court shall not bifurcate the
       prior conviction from the remaining elements of the crime charged. To the extent
       State v. McCraine, 214 W.Va. 188, 588 S.E.2d 177 (2003), is inconsistent with
       this holding, it is hereby overruled.

Syl. Pt. 4, State v. Herbert, 234 W.Va. 576, 767 S.E.2d 471 (2014). Based upon this subsequent
holding, we find no error in the circuit court denying petitioner’s motion for bifurcation. First, it
is clear that the crime with which petitioner was charged, third offense driving while license
suspended for DUI, includes prior convictions for this crime as essential elements. See State v.
Palmer, 210 W.Va. 372, 378, 557 S.E.2d 779, 785 (2001) (holding that prior convictions for
driving while revoked for DUI “are essential elements of the recidivist crimes set forth in West
Virginia Code § 17B-4-3(b).”) Second, the record is clear that petitioner did not stipulate to the
prior convictions at issue and, instead, challenged their validity below. Specifically, petitioner
stipulated to only one previous conviction for driving while her license was revoked for DUI.

                                                 2

Further, petitioner testified that the other convictions reflected in the evidence submitted by the
State constituted transcription errors by the probation officer.1 Because petitioner chose to
challenge the validity of her some of her prior convictions as essential elements to the crime with
which she was charged, the circuit court did not err in failing to grant her motion to bifurcate.
Accordingly, we find no error.

        Petitioner next argues that the circuit court committed plain error by permitting the jury
to consider a document that implied an inaccurate number of prior convictions and by permitting
a facially defective conviction to be used as a predicate offense. Because these two assignments
of error are similar, we will address them together. Specifically, petitioner asserts that the circuit
court erred in permitting the jury to view a magistrate court deposition form that provided that
she pled down a felony charge of driving suspended for DUI, fourth offense, because it actually
demonstrated that she had not been convicted of a first offense of that charge. Petitioner contends
that the State failed to prove that she had been convicted of a first, second, or third offense of
that charge. A thorough review of the record on appeal, however, proves otherwise. It is clear
that petitioner never brought these issues to the circuit court’s attention or otherwise objected to
the document at trial. Likewise, petitioner concedes that she did not raise these issues below. We
have previously held that our “general rule is that nonjurisdictional questions not raised at the
circuit court level will not be considered . . . [for] the first time on appeal.” State v. Jessie, 225
W.Va. 21, 27, 689 S.E.2d 21, 27 (2009) (citing Whitlow v. Bd. of Educ. of Kanawha Cty, 190
W.Va. 223, 226, 438 S.E.2d 15, 18 (1993)). Because petitioner failed to raise this issue below,
the Court declines to consider the same on appeal.

       Finally, petitioner argues that the circuit court erred cumulatively, citing our prior
holding, which states that “[w]here the record of a criminal trial shows that the cumulative effect
of numerous errors committed during the trial prevented the defendant from receiving a fair trial,
his conviction should be set aside, even though any one of such errors standing alone would be
harmless error.” Syl. Pt. 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972). Based on the
evidence above, we find no merit to petitioner’s cumulative error argument. Petitioner failed to
demonstrate that the circuit court erred. “In order to invoke the cumulative error doctrine, there
must be more than one harmless error.” State v. McKinley, 234 W.Va. 143, 167, 764 S.E.2d 303,
327 (2014). Therefore, we reject petitioner’s final assignment of error.

       For the foregoing reasons, the circuit court’s September 16, 2014, order, is hereby
affirmed.

                                                                                           Affirmed.




       1
         In support of her argument, petitioner references her full criminal background report, but
does not provide a copy of this report on appeal and acknowledges that that it was not a part of
the circuit court record.
                                                  3

ISSUED: March 7, 2016

CONCURRED IN BY:

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




                                 4
