No. 17-1045 – Robert Lee Lewis v. Donnie Ames, Superintendent,
Mt. Olive Correctional Complex                                                  FILED
                                                                           November 21, 2019
WORKMAN, J., dissenting:                                                         released at 3:00 p.m.
                                                                             EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA



              The majority opinion is legally unsound and flies in the face of well-

established constitutional law as well as this Court’s recent decision in Montgomery v.

Ames, 241 W. Va. 615, 627 S.E.2d 403 (2019). Further, the majority’s modification of this

Court’s holding in syllabus point seven of State v. Corra, 223 W. Va. 573, 678 S.E.2d 306

(2009), in order to reach a result-driven decision that affirms the circuit court and affords

the petitioner, Robert Lee Lewis, no relief in his second habeas petition, is simply wrong.



              The majority’s modification of Corra is set forth in a new syllabus point

numbered six as follow:

                      A criminal defendant cannot invite the circuit court to
              give an erroneous instruction on a lesser included offense,
              benefit from that instruction, and then complain on appeal, or
              in a collateral attack, that such instruction should not have been
              given. To the extent that Syllabus Point 7 of State v. Corra,
              223 W. Va. 573, 678 S.E.2d 306 (2009), is inconsistent, it is
              hereby modified.

The Court’s reasoning is both legally and factually flawed, and is constitutionally

unsupportable.



              First, the majority gives lip-service to this Court’s recent decision in

Montgomery by circumventing the applicability of Montgomery in three short sentences:


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                     Initially, we note that earlier this term, we held that “[a]
              criminal prosecution requires the existence of an accusation
              charging the commission of an offense. Such an accusation,
              either in the form of an indictment or an information, is an
              essential requisite of a circuit court’s jurisdiction.” Syllabus
              Point 3, Montgomery v. Ames, 241 W. Va. 615, 827 S.E.2d 403
              (2019). Clearly, Montgomery is inapplicable as Petitioner was
              properly charged in an indictment. Petitioner’s own action –
              offering the lesser included offense jury instruction – did not
              deprive the circuit court of subject matter jurisdiction.

In Montgomery, the petitioner filed a petition for writ of habeas corpus, alleging that his

guilty plea by information, rather than by indictment, to a charge of first-degree murder

was illegal and improper. Following plea negotiations, the petitioner had agreed to plead

guilty by way of information in exchange, in part, for the State refraining from pursuing

other possible charges against the petitioner arising from the same facts and agreeing that

the proper disposition was life without mercy. 241 W. Va. at 619, 827 S.E.2d at 407.

Accordingly, the State filed an information, which we acknowledged was “an agreement

between the State and the defendant to proceed without the formalities of a grand jury

indictment.” Id. at 622, 827 S.E.2d at 410. On appeal, the issues before the Court were

whether the petitioner had waived his right to an indictment by agreeing to allow the State

to proceed with an information, and whether the circuit court lacked jurisdiction to accept

the plea because there was no indictment. Id. at 621-22, 827 S.E.2d at 409-10.



              On the waiver issue, this Court held that

                     [a] defendant may waive his constitutional right to a
              grand jury indictment as provided in article III, section 4 of the
              West Virginia Constitution and elect to be prosecuted by
              information in accordance with the provisions of Rule 7 of the

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              West Virginia Rules of Criminal Procedure if such waiver is
              made intelligently and voluntarily.

241 W. Va. at 617, 827 S.E.2d at 405, Syl. Pt. 7. Critical to the waiver of the indictment,

however, was the recognition by the Court that there had been a different charging

instrument—an information—that is required by our Constitution and is necessary for the

circuit court’s subject-matter jurisdiction.



              Essential to understanding how the majority’s analysis in this case goes

completely off the track is a review of the Court’s recent holding in syllabus point three of

Montgomery: “A criminal prosecution requires the existence of an accusation charging the

commission of an offense. Such an accusation, either in the form of an indictment or an

information, is an essential requisite of a circuit court’s jurisdiction.” Id. at 617, 827

S.E.2d at 404, Syl. Pt. 3 (emphasis added). In so holding, we explained:

                      Nevertheless, we are mindful that an information acts in
              lieu of or as a substitute for an indictment and its validity is
              therefore essential to a circuit court’s jurisdiction. . . . Such an
              accusation, either in the form of an indictment or an
              information, is an essential requisite of a circuit court’s
              jurisdiction. See, e.g., Malone [v. Comm.], 30 S.W.3d [180] at
              183 [(Ky. 2000)] (“In Kentucky, subject matter jurisdiction
              over a felony offense may be invoked either by a grand jury
              indictment or by information in cases where the individual
              consents.”); accord Wells v. Sacks, 115 Ohio App. 219, 184
              N.E.2d 449 (Ohio 1962). Thus, if an accused has not validly
              waived his or her constitutional right to an indictment, an
              indictment is still the mandatory charging instrument.

241 W. Va. at 623, 827 S.E.2d at 411.




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              In the instant case, while the circuit court clearly had jurisdiction over the

counts contained in the indictment handed down by the grand jury—burglary, two counts

of second-degree sexual assault, kidnapping, and violation of a protective order—even the

State acknowledged in its supplemental brief that “[t]he indictment did not charge

Petitioner with abduction with intent to defile.” Given the lack of any charging instrument,

either an indictment or an information, for the crime of abduction with intent to defile, “an

essential requisite of” the circuit court’s jurisdiction simply does not exist in this case. Id.

at 617, 827 S.E.2d at 404, Syl. Pt. 3, in part. This jurisdictional defect mandates reversal

of the circuit court’s denial of the petitioner’s request for habeas relief; the lack of either

an indictment or information charging the offense of abduction with intent to defile

deprived the circuit court of subject-matter jurisdiction.



              It is hornbook law that subject-matter jurisdiction simply cannot be waived.

As this Court stated in State v. Tommy Y., Jr., 219 W. Va. 530, 637 S.E.2d 628 (2006):

              ‘Jurisdiction is made up of two components, i.e., (a) personal
              jurisdiction and (b) subject-matter jurisdiction. . . . A court
              must have both personal and subject-matter jurisdiction before
              it may act on a criminal charge. . . . A court acquires personal
              jurisdiction by the accused’s presence before the court,
              irrespective of the events procuring his presence. . . . Subject-
              matter jurisdiction entails the power of a court to hear a case,
              determine the facts, apply the law and set a penalty. . . .
              Subject-matter jurisdiction cannot be conferred by agreement,
              consent, or waiver. . . . A judgment rendered by a court without
              jurisdiction to pronounce it is wholly void and without any
              force or effect whatever. . . . Jurisdiction may be challenged at
              any time during the pendency of the proceedings and for the
              first time on appeal. . . .’


                                               4
Id. at 536, 637 S.E.2d at 634 (quoting State v. Haase, 446 N.W.2d 62, 64-65 (S.D. 1989);

see Miller, 197 W. Va. at 598 n.12, 476 S.E.2d at 545 n.12 (“‘Since a jurisdictional defect

cannot be waived, the failure of the indictment or information to charge an offense shall be

noticed by the court at any time during the pendency of the proceeding.’”) (quoting

Franklin D. Cleckley, Handbook on West Virginia Criminal Procedure, I-687 (1994)

(citing Gov’t of Virgin Is. v. Pemberton, 813 F.2d 626, 631 (3rd Cir.1987).).



              It is also important to note that even if the majority had correctly set aside

the abduction with intent to defile conviction, the petitioner stands convicted of other very

serious criminal conduct, including burglary without breaking and second-degree sexual

assault. The circuit court sentenced the petitioner to a term of one to fifteen years for the

burglary conviction and twenty to twenty-five years for his sexual assault conviction. The

sexual assault sentence was enhanced pursuant to a recidivist conviction after the petitioner

was found guilty of being twice convicted of a second felony offense, being voluntary

manslaughter. Additionally, the sexual assault sentence was ordered by the circuit court to

run consecutive to his other sentences. Consequently, had the majority found that there

was no subject-matter jurisdiction to convict the petitioner for abduction with intent to

defile, there would be minimal impact on the significant sentence imposed on the petitioner

for the terrible crimes he unquestionably committed.



              Further, the majority opinion fails to appreciate the constitutional

underpinning of the need for a charging instrument as a prerequisite to conviction of the

                                             5
crime. And the injustice that arises from the cavalier approach taken by the majority is not

one in which great minds can simply disagree. Instead, it is a dismantling of a basic tenet

of criminal law, taught in every Criminal Law 101 class, that every defendant has a

constitutional right to be convicted of a felony only if it is properly charged in an

indictment, information or other charging instrument. This concept is well-entrenched in

our law. In State v. Knight, 168 W. Va. 615, 285 S.E.2d 401 (1981), this Court recognized

the constitutional necessity of an indictment in a criminal prosecution, stating that

                     [o]ne of the basic requirements in a criminal
              prosecution is that the defendant be fully informed, from the
              time he is first brought into court, of the charge against him.
              State v. Grimmer, [162] W. Va. [588], 251 S.E.2d 780 (1979).
              The defendant must be brought before the court on an
              indictment which fully and plainly informs him of the character
              and cause of the accusation. W. Va. Constitution, art. 3, § 4 and
              § 14[;] State v. Furner, [161] W. Va. [680], 245 S.E.2d 618,
              619 (1978); Hubbard v. Spillers, 157 W. Va. 522, 202 S.E.2d
              180 (1974); State v. LaManca, 142 W. Va. 549, 96 S.E.2d 667
              (1957); State v. McGraw, 140 W. Va. 547, 85 S.E.2d 849
              (1955); State v. Johnson, 134 W. Va. 357, 59 S.E.2d 485
              (1954). If the indictment here charges the crime for which the
              defendant was convicted, then there are no constitutional
              problems; if it in some way fails to charge the crime, then the
              conviction must be reversed.

168 W. Va. at 619-20, 285 S.E.2d at 404-05 (emphasis added).

              Justice Cleckley also discussed this principle in State v. Adams, 193 W. Va.

277, 456 S.E.2d 4 (1995):

              It is well settled law that a defendant has a right under the
              Grand Jury Clause of Section 4 of Article III of the West
              Virginia Constitution to be tried only on felony offenses for
              which a grand jury has returned an indictment. In unbroken
              precedent, this Court has stated: “‘A valid indictment or
              presentment can be made only by a grand jury; and no court

                                              6
              can make an indictment in the first instance or alter or amend
              the substance of an indictment returned by a grand jury.’
              Syllabus Point 5, State v. McGraw, 140 W.Va. 547, 85 S.E.2d
              849 (1955).”

Id. at 280, 456 S.E.2d at 7 and Syl. Pt. 1 (emphasis added); but see id. at 279, 456 S.E.2d

at 6, Syl. Pt. 2 (modifying McGraw to allow the circuit court to make amendments to an

indictment that are not substantial). This Court subsequently held in State v. Miller, 197

W. Va. 588, 476 S.E.2d 535 (1996), that “[o]ur decisions hold that a fundamental principle

stemming from Section 5 of Article III of the West Virginia Constitution is that a criminal

defendant only can be convicted of a crime charged in the indictment.” 197 W. Va. at 599,

476 S.E.2d at 546; see State v. Boyd, 209 W. Va. 90, 93, 543 S.E.2d 647, 650 (2000) (“We,

therefore, believe it is abundantly clear that felony criminal proceedings commence with

either the filing of a complaint or by indictment.”).



              The United States Supreme Court discussed the importance of this

fundamental constitutional principle:

              The Court has long recognized that an indictment may charge
              numerous offenses or the commission of any one offense in
              several ways. As long as the crime and the elements of the
              offense that sustain the conviction are fully and clearly set out
              in the indictment, the right to a grand jury is not normally
              violated by the fact that the indictment alleges more crimes or
              other means of committing the same crime. See, e.g., Ford v.
              United States, 273 U.S. 593, 47 S. Ct. 531, 71 L. Ed. 793
              (1927); Salinger v. United States, 272 U.S. 542, 47 S. Ct. 173,
              71 L. Ed. 398 (1926). See also Berger v. United States, supra;
              Hall v. United States, 168 U.S. 632, 638-640, 18 S. Ct. 237,
              239-240, 42 L. Ed. 607(1898). Indeed, a number of
              longstanding doctrines of criminal procedure are premised on


                                              7
              the notion that each offense whose elements are fully set out in
              an indictment can independently sustain a conviction.

United States v. Miller, 471 U.S. 130, 136 (1985).



              But what transpired below, and now approved by the majority, is a

substantive or constructive amendment to the grand jury indictment, which is not condoned

either by the state or federal constitution. As the United States Court of Appeals for the

Fourth Circuit stated in United States v. Foster, 507 F.3d 233 (4th Cir. 2007):

                      A constructive amendment to an indictment occurs
              when either the government (usually during its presentation of
              evidence and/or its argument), the court (usually through its
              instructions to the jury), or both, broadens the possible bases
              for conviction beyond those presented by the grand jury.
              United States v. Floresca, 38 F.3d 706, 714 (4th Cir.1994) (en
              banc). We have referred to constructive amendments of a
              federal indictment as fatal variances because “the indictment is
              altered to change the elements of the offense charged, such that
              the defendant is actually convicted of a crime other than that
              charged in the indictment.” United States v. Randall, 171 F.3d
              195, 203 (4th Cir.1999) (citation and internal quotation marks
              omitted). Constructive amendments are error per se and, given
              the Fifth Amendment right to be indicted by a grand jury,
              “must be corrected on appeal even when not preserved by
              objection.” Floresca, 38 F.3d at 714.

Foster, 507 F.3d at 242. On this issue we held in syllabus point three of Adams that “[a]ny

substantial amendment, direct or indirect, of an indictment must be resubmitted to the grand

jury.” 193 W. Va. at 279, 456 S.E.2d at 6, Syl. Pt. 3, in part.



              Instead of recognizing the jurisdictional and constitutional violations that

occurred below, the majority adds insult to injury by modifying our existing law in an effort

                                              8
to condone the jurisdictional and constitutional deprivations. Turning to the damage done

by the majority in its modification of Corra, we held in no uncertain terms that “[w]hen a

defendant is charged with a crime in an indictment, but the State convicts the defendant of

a charge not included in the indictment, then per se error has occurred, and the conviction

cannot stand and must be reversed.” 223 W. Va. at 575-76, 678 S.E.2d at 308-09, Syl. Pt.

7 (emphasis added). Significantly, in reaching its holding in Corra, this Court faced a

factual situation on all fours with the instant case: “[t]here [was] no doubt that the

defendant was convicted of a different crime than that for which he was indicted.” Id. at

580, 678 S.E.2d at 313.



              Moreover, in Corra, just as in the instant case, the State argued that the

defendant had waived any error arising from the fact that the State had charged him with

violating the wrong statute,1 because defense counsel never objected before the jury

returned its verdict and defense counsel agreed in the charge conference that beer was an

alcoholic liquor, telling the circuit court “‘there is no issue here.’” Id. at 579, 678 S.E.2d

at 312. Additionally, the State argued in Corra that the defendant had invited the error

because his counsel told the circuit court that it was not necessary to instruct the jury about



       1
        In Corra, the indictment charged the defendant with a violation of West Virginia
Code § 60-3-22a(b) (1986), which prohibited a person from knowingly furnishing
“‘alcoholic liquors’” to individuals under the age of twenty-one. 223 W. Va. at 578, 678
S.E.2d at 311. In fact, the State could only prove that the defendant furnished beer to
persons under twenty-one. Thus, the defendant should have been charged with furnishing
nonintoxicating beer under West Virginia Code § 11-16-19(c) (2005). See 223 W. Va. at
579, 678 S.E.2d at 312.
                                              9
the definition of “‘alcoholic liquor’ because beer was alcohol.” Id. This Court rejected the

State’s argument, determining that “[w]e believe that, even if the record demonstrated that

the defendant waived, forfeited or invited error, the jury verdict must be reversed.” Id. at

582, 678 S.E.2d at 315.



              The majority’s position set forth in its new syllabus point is that a defendant

can invite error such that it allows him to be convicted of a felony for which he was never

charged. Despite this new law, when applying it to the facts of this case, it is undeniable

that neither the petitioner, the State, nor the circuit court understood that the crime of

abduction with intent to defile was not a lesser included offense of the crime of kidnapping.

Compare W. Va. Code § 61-2-14 (1984)(providing for abduction with intent to defile) with

W. Va. Code § 61-2-14a (1999)(providing for kidnapping). Instead it is a separate felony

to which the State now concedes: “[t]he State agrees with Petitioner that abduction with

intent to defile is not a lesser included offense of kidnapping.”



              The State’s concession of error is crucial to this case because the majority

has now modified the decision Corra to allow the State to convict a defendant of a crime

for which he was never charged so long as the defendant invited the circuit court “to give

an erroneous instruction on a lesser included offense, [and] benefit from that instruction.”

Given that the petitioner’s attorney, the State, and the circuit court were all unaware of the

fact that abduction with intent to defile was its own crime, not a lesser included offense, it

is absurd to hold the unassuming, unsophisticated petitioner responsible for something for

                                             10
which even the professionals lacked knowledge. In this regard, as we stated in

Montgomery, despite the constitutional requirement of indictment,

              just as an accused may waive his constitutional rights to
              assistance of counsel and trial by jury, which are designed for
              the protection of his or her personal rights, an accused may
              waive the similar personal right of indictment by a grand jury.
              An accused may waive sundry constitutional rights and
              privileges, if he or she does so intelligently and voluntarily.

241 W. Va. at 625, 827 S.E.2d at 413 (footnote omitted and emphasis added). In this case,

there is no intelligent and voluntary waiver of the constitutional right to be charged with a

felony in an indictment when none of the individuals charged with upholding the

petitioner’s constitutional rights—certainly not the petitioner’s counsel or the circuit

court—understood that the crime for which the petitioner was convicted was not a lesser

included offense of the crime for which he was indicted.



              Further, the two cases relied upon by the Court for the proposition that

“[c]learly, our prior jurisprudence has affirmed convictions where criminal defendants

have offered jury instructions of unindicted offense, like Tidwell, and where a conviction

would otherwise be barred by the statute of limitations, like Boyd[,]” are of no moment

where, as in the instant case the court of conviction lacked subject-matter jurisdiction. See

State v. Tidwell, 215 W. Va. 280, 599 S.E.2d 703 (2004); State v. Boyd, 209 W. Va. 90,

543 S.E.2d 647 (2000). Significantly, in Tidwell, the unindicted offense was a lesser

included offense of the crime charged in the indictment. See 215 W. Va. at 281, 599 S.E.2d

at 704. This Court has found that


                                             11
              Rule 31(c) of the West Virginia Rules of Criminal Procedure
              provides, however, that a “defendant may be found guilty of an
              offense necessarily included in the offense charged or of an
              attempt to commit either the offense charged or an offense
              necessarily included therein if the attempt is an offense.” In
              other words, a defendant may be convicted of a lesser included
              offense of the specific charge set forth in the indictment
              without violating the constitutional notice requirement.

State v. Henning, 238 W. Va. 193, 196, 793 S.E.2d 843, 846 (2016); accord State v. Bland,

239 W. Va. 463, 467, 801 S.E.2d 478, 482 (2017) (discussing Henning and the fact that

one can be convicted of a lesser included offense of a specific charge in indictment).

Moreover, Boyd involved the defendant’s request for the jury to be instructed on a lesser-

included misdemeanor offense even though the misdemeanor offense was time-barred.

209 W. Va. at 91-92, 543 S.E.2d at 648-49. Ironically, in Boyd, in determining that the

defendant waived the statute of limitations defense to the misdemeanor crime for which he

sought the instruction, this Court found that “[w]e agree with the courts which hold that

the statute of limitations in a criminal case does not go to the jurisdiction of the court.

Consequently, the expiration of a statute of limitations does not terminate a court’s

jurisdiction over the subject matter.” Id. at 93, 543 S.E.2d at 650.



              Additionally, the majority places great weight on the United States Supreme

Court’s decision in Currier v. Virginia, 138 S. Ct. 2144 (2018), for the proposition that a

defendant can consent to proceeding in a certain manner that precludes his later complaint

“that such proceeding—that he requested—violated a constitutional protection.” Such

reliance is misguided as Currier does not address the pivotal problem before the Court—


                                             12
that the circuit court lacked subject-matter jurisdiction over the crime for which the

petitioner stands convicted. Further, even the Supreme Court has stated that “[o]bjections

to subject-matter jurisdiction . . . may be raised at any time. Thus, a party, after losing at

trial, may move to dismiss the case because the trial court lacked subject-matter

jurisdiction.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434-35 (2011).



              In other words, the law relied upon by the majority to create the modification

to Corra simply does not provide the legal justification claimed by the majority.



              For the foregoing reasons, I respectfully dissent.




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