                             STATE OF WEST VIRGINIA 

                           SUPREME COURT OF APPEALS 



State of West Virginia, 
                                                          FILED
Plaintiff Below, Respondent                                                    March 23, 2018 

                                                                              EDYTHE NASH GAISER, CLERK
                                                                              SUPREME COURT OF APPEALS
vs) No. 17-0338 (Monongalia County 15-F-11)                                       OF WEST VIRGINIA


Jordan Bennett, 

Defendant Below, Petitioner 



                              MEMORANDUM DECISION

        Petitioner Jordan Bennett, pro se, appeals the March 16, 2017, order of the Circuit Court of
Monongalia County denying his motion for correction of sentence pursuant to Rule 35(a) of the
West Virginia Rules of Criminal Procedure. Respondent State of West Virginia (“the State”), by
counsel Robert L. Hogan, filed an amended summary response in support of the circuit court’s
order.1 Petitioner filed a reply.

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

       On January 9, 2015, petitioner was indicted on ten counts of second-degree sexual assault
and one count of abduction. The first three counts of second-degree sexual assault involved victim
T.M., while the remaining counts of second-degree sexual assault and the count of abduction
involved victim L.W. Trial was scheduled to commence on November 17, 2015. However, prior to
November 17, 2015, petitioner and the State agreed to sever the first three counts of the indictment
and proceed to trial only on the eight counts involving L.W.

       On November 17, 2015, after a jury was sworn, petitioner decided to plead guilty to the
eight counts involving L.W. Petitioner made this decision without a plea offer from the State.
However, “[a]fter a discussion with [petitioner’s] counsel,” the circuit court allowed petitioner to

       1
        This Court granted the State’s motion to file an amended summary response by order
entered October 4, 2017.

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change his pleas. After petitioner’s plea colloquy, the circuit court permitted L.W. to testify and
provide the factual basis for petitioner’s guilty pleas. L.W. testified that on the morning of
September 26, 2014, she went for a jog along the “rail trail” in Morgantown, West Virginia, with
the Monongahela River on the left side of her path. Shortly thereafter, petitioner came up behind
L.W. and spoke to her, at which time she smelled the odor of alcohol. As L.W. continued with her
jog, she testified that petitioner grabbed her and a struggle ensured. Ultimately, L.W. was
overpowered by petitioner who punched and strangled her and dragged her by the hair “across the
path down into the woods.” L.W. testified that petitioner dragged her down “a really steep hill” to
a large black pipe near the riverbank. Petitioner threatened to kill L.W. if she did not crawl under
the pipe.

        Once under the pipe, petitioner removed his and L.W.’s clothing and he sexually assaulted
L.W. numerous times vaginally, anally, and orally, as well as by digital penetration. L.W. gave
specific details regarding each of these sexual assaults. During one of the assaults, petitioner
closed his eyes and L.W. considered whether she had the strength to escape. However, given the
steep incline, L.W. testified that she did not believe that she had “enough strength to beat
[petitioner] up the hill.”2 L.W. testified that petitioner sexually assaulted her for “[n]early two
hours.” L.W. testified that petitioner’s attack left her with long-lasting effects such as a scar on her
back and a fear of walking outside which had been her “favorite thing.” After L.W.’s testimony,
the circuit court asked petitioner the following:

       THE COURT: [Petitioner], in order for me to accept your guilty pleas, I have to
       know that you are guilty. So[,] what [L.W.] said[,] is that the truth?

       [Petitioner]: Yes, ma’am.

       THE COURT: So, in fact, you are guilty?

       [Petitioner]: Yes, ma’am.

        The circuit court made findings of fact at the November 17, 2015, plea hearing. The circuit
court found that petitioner received a copy of the indictment and went “over it with his attorney.”
The circuit court noted that petitioner understood that he could be ordered to serve his sentences
“one after the other.” Furthermore, the circuit court found that petitioner knowingly and
intelligently waived his constitutional rights and intelligently and voluntarily entered guilty pleas
to seven counts of second-degree sexual assault and one count of abduction. Finally, the circuit
court found that, based on L.W.’s testimony, “there is a factual basis for the plea[s].” Accordingly,
the circuit court accepted petitioner’s guilty pleas. At a January 11, 2016, sentencing hearing, the

       2
        Because petitioner challenges the legality of his abduction sentence based on double
jeopardy grounds, infra, we note that the location and environment of the place the victim was
detained is a relevant factor in determining whether an abduction is merely incidental to the
commission of another offense. See State v. Lewis, 235 W.Va. 694, 702 n.20, 776 S.E.2d 591, 599
n.20 (2015).

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circuit court sentenced petitioner to seven terms of ten to twenty-five years of incarceration for
second-degree sexual assault and to one term of three to ten years of incarceration for abduction.
The circuit court ordered that petitioner serve his sentences consecutively for an aggregate term of
seventy-three to 185 years of incarceration. Petitioner did not appeal the circuit court’s January 12,
2016, sentencing order.

        On July 13, 2016, petitioner filed, pro se, a motion for correction of sentence pursuant to
Rule 35(a) of the West Virginia Rules of Criminal Procedure.3 In the motion, petitioner argued
that several of the counts of the indictment violated double jeopardy principles because his
abduction of L.W. was merely incidental to the commission of the sexual assaults and because
L.W.’s initial statement to police supported only three of the seven sexual assault counts. With
regard to the other four sexual assault counts, petitioner argued that “the State failed to meet its
burden of proving separate and distinct offenses.” The circuit court denied petitioner’s motion for
correction of sentence by order entered March 16, 2017. The circuit court effectively ruled that
petitioner waived the double jeopardy arguments by pleading guilty to the counts of the indictment
involving L.W.:

       At no point prior to or at the entry of his plea[s] did [petitioner] raise any objection
       to the charges alleged in the indictment on constitutional grounds, or otherwise
       register any objection to entry of his plea[s]. Furthermore, at no point did
       [petitioner] indicate to the [c]ourt that the entry of his plea[s] was in any way
       subject to the constitutional objections now raised in [petitioner]’s [m]otion.

       Petitioner now appeals the circuit court’s March 16, 2017, order denying his Rule 35(a)
motion for correction of sentence. In syllabus point one of State v. Marcum, 238 W.Va. 26, 792
S.E.2d 37 (2016), we set forth the pertinent standard of review:

                “In reviewing the findings of fact and conclusions of law of a circuit court
       concerning an order on a motion made under Rule 35 of the West Virginia Rules of
       Criminal Procedure, we apply a three-pronged standard of review. We review the
       decision on the Rule 35 motion under an abuse of discretion standard; the
       underlying facts are reviewed under a clearly erroneous standard; and questions of
       law and interpretations of statutes and rules are subject to a de novo review.” Syl.
       Pt. 1, State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).

The Double Jeopardy Clauses of the United States and West Virginia Constitutions prohibit
“multiple punishments for the same offense.” Syl. Pts 1 and 2, State v. Gill, 187 W.Va. 136, 416
S.E.2d 253 (1992). In syllabus point two of State v. Coles, 234 W.Va. 132, 763 S.E.2d 843 (2014),
we held as follows:


       3
        On May 5, 2016, petitioner’s attorney filed a motion for reconsideration of sentence
pursuant to Rule 35(b) that requested concurrent sentences for at least some of his convictions. The
Rule 35(b) motion remains pending before the circuit court.

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               If a guilty plea is shown to have been intelligently and voluntarily entered
       into, generally it cannot be directly or collaterally attacked on double jeopardy
       grounds. One exception to this rule permits a defendant to show that the face of the
       record in the case establishes that a court lacked power to convict or sentence the
       defendant.

        On appeal, petitioner concedes that, by intelligently and voluntarily pleading guilty, he
waived a wide array of constitutional rights. However, petitioner argues that he may still claim a
violation of the constitutional prohibition against multiple punishments for the same offense
because such a claim goes to the legality of certain sentences. See Syl. Pt. 1, State v. Sims, 162
W.Va. 212, 248 S.E.2d 834 (1978) (holding that a guilty plea does not preclude a challenge to a
sentence’s legality). The State counters that the circuit court properly denied petitioner’s motion
for correction of sentence because the time for him to challenge the factual basis of his guilty pleas
was at the November 17, 2015, plea hearing and he failed to do so. We agree with the State. At the
plea hearing, L.W. provided the factual basis for petitioner’s guilty pleas. The circuit court asked
petitioner if L.W.’s testimony was the truth and petitioner answered, “yes, ma’am.” Therefore, we
find that the record establishes that the circuit court possessed the power to convict and sentence
the defendant on all eight counts for which he pled guilty. Accordingly, we conclude that the
circuit court did not abuse its discretion in denying petitioner’s motion for correction of sentence.

       For the foregoing reasons, we affirm the circuit court’s March 16, 2017, order denying his
Rule 35(a) motion for correction of sentence.4

                                                                                           Affirmed.

ISSUED: March 23, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Justice Elizabeth D. Walker
       4
         For the first time on appeal, petitioner argues that the charges involving the other victim
T.M., which remain pending in the circuit court, should be dismissed with prejudice because he
has not been brought to trial on those charges within three terms of court. See Syl., State v. Carter,
204 W.Va. 491, 513 S.E.2d 718 (1998). The State counters that the charges involving T.M. are not
currently before this Court because petitioner failed to ask the circuit court for relief regarding
those charges in his motion. We agree with the State and decline to address that issue. See Syl. Pt.
2, Sands v. Sec. Trust Co., 143 W.Va. 522, 102 S.E.2d 733 (1958) (holding that “[t]his Court will
not pass on a non[-]jurisdictional question which has not been decided by the trial court in the first
instance).

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