Opinion
No. 17-1045
11-21-2019
Robert Lee LEWIS, Petitioner v. Donnie AMES, Superintendent, Mt. Olive Correctional Complex, Respondent
Robert F. Evans, Esquire, Public Defender Services, Charleston, West Virginia, Counsel for the Petitioner Patrick Morrisey, Esquire, Attorney General, John M. Masslon II, Esquire, Special Assistant Attorney General, Charleston, West Virginia, Counsel for the Respondent
Robert F. Evans, Esquire, Public Defender Services, Charleston, West Virginia, Counsel for the Petitioner
Patrick Morrisey, Esquire, Attorney General, John M. Masslon II, Esquire, Special Assistant Attorney General, Charleston, West Virginia, Counsel for the Respondent
Armstead, Justice:
Petitioner Robert Lee Lewis appeals the circuit court’s denial of relief on his petition for writ of habeas corpus. Petitioner asserts three main arguments: (1) Petitioner was unconstitutionally convicted of a crime not included in the indictment; (2) both Petitioner’s trial and direct appeal counsel were ineffective for not raising the unindicted acts error; and, (3) Petitioner’s sentences are unconstitutionally disproportionate.
We have reviewed the entire record before us, and for the reasons stated below, we find no error.
I. FACTUAL AND PROCEDURAL BACKGROUND
This matter represents Petitioner’s second habeas corpus petition that has made its way to this Court. See State ex rel. Lewis v. Ballard , No. 12-0137, 2013 WL 1286150 (W. Va. March 29, 2013) (memorandum decision). We would also note that Petitioner has filed another appeal with this Court challenging his sentence, but such appeal is not currently before us.
State of West Virginia v. Robert Lee Lewis , West Virginia Supreme Court of Appeals Docket Number 19-0121.
Petitioner was convicted of: (1) burglary by entering without breaking; (2) second degree sexual assault; and, (3) based upon a jury instruction Petitioner offered at trial, and objected to by the State, abduction with intent to defile as a lesser included offense of kidnapping. The facts of this matter are disturbing, and are set forth in great detail in this Court’s prior opinion in State v. Lewis , 235 W. Va. 694, 776 S.E.2d 591 (2015). For purposes of this appeal, a complete restatement of those facts is unnecessary. However, we will briefly highlight some of the salient facts supporting Petitioner’s conviction.
Petitioner, who had a domestic violence protective order against him prohibiting contact with his ex-girlfriend, knocked on the door of his ex-girlfriend’s apartment, and pretended to be someone else. See id. , 235 W. Va. 694, 698, 776 S.E.2d 591, 595. This induced his ex-girlfriend to open her door. See id. Petitioner then forced his way into the apartment, chased his ex-girlfriend, grabbed her, carried her out of her apartment, and took her a few blocks away to an unoccupied apartment. See id. At this unoccupied apartment, Petitioner proceeded to forcibly engage in vaginal intercourse with her. See id. After a period of time, she escaped and ran back to her apartment. See id. , 235 W. Va. 694, 698-699, 776 S.E.2d 591, 595-596. Petitioner followed her and sat on her front steps until the police arrived and took him into custody. See id. , 235 W. Va. 694, 699, 776 S.E.2d 591, 596.
Following his convictions, the State filed a recidivist information, alleging Petitioner had been previously convicted of a felony. See id. The jury found "[P]etitioner ‘guilty of having been twice convicted of a crime punishable by confinement in a penitentiary as contained in the recidivist information.’ " Id.
Petitioner was then sentenced to the penitentiary for a term of:
[O]ne to fifteen years for burglary; three to ten years for abduction with intent to defile; and twelve months for violating the domestic violence protective order. In addition, based on the recidivist conviction, the trial court enhanced the petitioner’s sentence for second degree sexual assault by increasing the statutory ten to twenty-five year term of imprisonment to twenty to twenty-five years, as provided for in West Virginia Code § 61–11–18 (2014), the recidivist sentencing statute. The trial court also ordered all sentences to be served consecutively with the exception of the twelve-month sentence, which was ordered to run concurrently with the other sentences.
Prior to trial, Petitioner entered a guilty plea to the charge of violating a domestic protection order. See Lewis , 235 W. Va. 694, 699, 776 S.E.2d 591, 596.
Id. , 235 W. Va. 694, 699-700, 776 S.E.2d 591, 596-597 (internal footnote omitted, footnote "2" added).
Initially, Petitioner filed no direct appeal to this Court. However, on January 4, 2012, he filed his first petition for writ of habeas corpus in Kanawha County Circuit Court. Without a hearing, the circuit court denied that petition. Petitioner appealed that denial to this Court, and this Court issued a memorandum decision in State ex rel. Lewis v. Ballard , No. 12-0137, 2013 WL 1286150 (W. Va. March 29, 2013) (memorandum decision). In that memorandum decision, this Court remanded that habeas for hearing on the issue of whether there was ineffective assistance of counsel for failing to file a direct appeal. See id. , at *1-2. On remand, the circuit court entered an Agreed Order Granting in Part and Denying In Part Petition for Writ of Habeas Corpus finding that trial counsel was ineffective for not filing a direct appeal. As a result of this finding, the circuit court resentenced Petitioner and dismissed all other claims as moot.
The resentencing of Petitioner allowed him to timely file a direct appeal to this Court. In that appeal, he raised six issues:
The petitioner seeks to set aside his conviction for abduction with intent to defile on the basis that the criminal offense set forth in West Virginia Code § 61–2–14(a) (2014) is unconstitutionally vague. He challenges his convictions for abduction with intent to defile and second degree sexual assault on grounds of double jeopardy. The petitioner’s remaining assignments of error allege an insufficiency of the State’s evidence to convict him of the crimes of burglary and second degree sexual assault, the inadequacy of the jury instruction on abduction with intent to defile, and errors related to his recidivist conviction and sentencing.
Lewis , 235 W. Va. 694, 698, 776 S.E.2d 591, 595 (2015). Importantly, all grounds raised in that appeal were previously and finally adjudicated on the merits by the opinion issued by this Court in 2015. See id. and W. Va. Code § 53-4A-1(b)(1967). Some of those grounds will be further discussed below.
Following his direct appeal, Petitioner filed a petition for writ of habeas corpus in the United States District Court for the Southern District of West Virginia. See Lewis v. Ballard , Civil Action No. 2:16-CV-03194, 2017 WL 927231 (S. D. W. Va., March 8, 2017) (not reported in Fed. Supp.). The District Court dismissed Petitioner’s petition on the grounds that he had failed to exhaust state remedies. See id. , at *1.
Petitioner then filed this second habeas corpus petition in Kanawha County Circuit Court. In this pro se petition, he raised four grounds:
(1) Petitioner was denied due process of law as secured by the Fifth, Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution when Petitioner was convicted and sentenced for violating W. Va. Code § 61-2-14(a) ;
(2) Petitioner was denied due process of law as secured by the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution when he was tried, convicted and sentenced for burglary;
(3) Petitioner was denied due process of law when the Circuit Court of Kanawha County determined Petitioner had a prior felony conviction and enhanced Petitioner’s sentence of sexual assault in the Second Degree, as requested by the State, rather than the burglary sentence; and,
(4) Petitioner was denied due process of law as secured by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution when the jury was not instructed on the lesser included offenses of battery, sexual misconduct, and sexual abuse in the First Degree.
The circuit court, pursuant to Rule 4(c) of the West Virginia Rules Governing Post Conviction Habeas Corpus Proceedings, summarily dismissed this petition, finding with respect to each ground raised:
(1) Petitioner’s ground one asserts an ordinary trial error, an improper jury instruction, for [sic] which he failed to raise on direct appeal, and is thereby waived.
(2) Petitioner’s ground two was previously and finally adjudicated upon direct appeal before the Supreme Court of Appeals of West Virginia in State v. Lewis , 235 W. Va. 694, 776 S.E.2d 591 (2015).
(3) Petitioner’s ground three was previously and finally adjudicated upon direct appeal before the Supreme Court of Appeals of West Virginia in State v. Lewis , 235 W. Va. 694, 776 S.E.2d 591 (2015).
(4) Petitioner’s ground four asserts an ordinary trial error, an improper jury instruction,
for [sic] which he failed to raise on direct appeal, and is thereby waived.
In this pro se appeal from that order, Petitioner raised the following grounds:
(1) Was [P]etitioner denied due process of law as secured by the [Fifth, Sixth, Eighth, and Fourteenth] Amendments to the U.S. Constitution when [P]etitioner was convicted and sentenced for violating W. Va. Code § 61-2-14(a) ... ?
(2) Are the consecutive sentences imposed on [P]etitioner by the Circuit Court of Kanawha County ..., a disproportionate sentence and contrary to this Court’s ruling in State v. Davis ...?
(3) Is [P]etitioner’s conviction for [a]bduction with intent to defile the result of constructive amendment of the kidnapping indictment, and, therefore a violation of [the Fifth and Fourteenth] Amendments to the U.S. Constitution, and Art[icle] III, §§ 4 [and] 10 of the Constitution of West Virginia?
(4) Was Petitioner denied effective assistance of counsel when Mr. Sullivan asked the judge to instruct the jury on the elements of [a]bduction, a violation of W. Va. Code § 61-11-14(a), despite the fact that the indictment did not allege defendant had abducted [the victim] with the intent to marry or defile her, a violation of the [Fifth, Sixth, and Fourteenth] Amendments to the U.S. Constitution and Art[icle] III, §§ 4, 10, [and] 14 of the [West Virginia] Constitution?
Upon review of this appeal, this Court sua sponte appointed appellate counsel for Petitioner and ordered supplemental briefing on the issue of whether abduction with intent to defile is a lesser included offense of kidnapping. Following review of the entire record, we find that the errors raised in this appeal were either not raised below and therefore waived, or were previously and finally adjudicated on the merits and not clearly wrong. See W. Va. Code § 53-4A-1 (1967).
II. STANDARD OF REVIEW
"In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three-prong standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standard; and questions of law are subject to a de novo review." Syllabus Point 1, Mathena v. Haines , 219 W. Va. 417, 633 S.E.2d 771 (2006).
III. ANALYSIS
This matter is an appeal of the circuit court’s summary disposition of Petitioner’s second petition for habeas corpus. The procedures for filing a habeas corpus petition were established by our Legislature in 1967. See W. Va. Code §§ 53-4A-1 - 11 (1967). "A habeas corpus proceeding is not a substitute for a writ of error in that ordinary trial error not involving constitutional violations will not be reviewed." Syllabus Point 4, State ex rel. McMannis v. Mohn , 163 W. Va. 129, 254 S.E.2d 805 (1979). Further,
Habeas corpus serves as a collateral attack upon a conviction under the claim that the conviction was obtained in violation of the state or federal constitution. While our legislature, through the enactment of W. Va. Code, 1931, 53-4A-1 through 11, as amended has provided a broad and effective post-conviction review, we still maintain a distinction, so far as post-conviction remedy is concerned, between plain error in a trial and error of constitutional dimensions. Only the latter can be a proper subject of a habeas corpus proceeding.
Edwards v. Leverette , 163 W. Va. 571, 576, 258 S.E.2d 436, 439 (1979).
Two errors raised in this appeal were not raised in the habeas petition when it was filed in the circuit court. Those errors allege a due process violation stemming from Petitioner’s burglary conviction and ineffective assistance of counsel of both trial and appellate counsel. West Virginia Code § 53-4A-1(c) provides:
For the purposes of this article, a contention or contentions and the grounds in fact or law relied upon in support thereof shall be deemed to have been waived when the petitioner could have advanced, but intelligently and knowingly failed to advance,
such contention or contentions and grounds before trial, at trial, or on direct appeal (whether or not said petitioner actually took an appeal), or in a proceeding or proceedings on a prior petition or petitions filed under the provisions of this article, or in any other proceeding or proceedings instituted by the petitioner to secure relief from his conviction or sentence, unless such contention or contentions and grounds are such that, under the Constitution of the United States or the Constitution of this state, they cannot be waived under the circumstances giving rise to the alleged waiver. When any such contention or contentions and grounds could have been advanced by the petitioner before trial, at trial, or on direct appeal (whether or not said petitioner actually took an appeal), or in a proceeding or proceedings on a prior petition or petitions filed under the provisions of this article, or in any other proceeding or proceedings instituted by the petitioner to secure relief from his conviction or sentence, but were not in fact so advanced, there shall be a rebuttable presumption that the petitioner intelligently and knowingly failed to advance such contention or contentions and grounds.
W. Va. Code § 53-4A-1 (1967). "Under the provisions of Chapter 53, Article 4A, Code of West Virginia, 1931, as amended, commonly known as ‘Post-Conviction Habeas Corpus,’ there is a rebuttable presumption that petitioner intelligently and knowingly waived any contention or ground in fact or law relied on in support of his petition for habeas corpus which he could have advanced on direct appeal but which he failed to so advance." Syllabus Point 1, Ford v. Coiner, 156 W. Va. 362, 196 S.E.2d 91 (1972). In addition, our law clearly supports the proposition that any grounds not raised in the petition for habeas corpus are deemed waived. See generally Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981). Accordingly, because Petitioner did not raise either of these issues in the circuit court, we find that these claims are waived.
We do, however, believe that because Petitioner has argued both here and below that there were procedural due process errors relating to his conviction on the unindicted crime of abduction with intent to defile, he has preserved this alleged error for habeas review. It is undisputed that Petitioner was indicted on the crime of kidnapping. See W. Va. Code § 61-2-14a (1999). Yet, he was convicted of an unindicted offense – abduction with intent to defile – the elements of which Petitioner requested the jury be instructed as a lesser included offense to kidnapping. See W. Va. Code § 61-2-14 (1984). We have previously held in Syllabus Point 13 of State v. Fortner , 182 W. Va. 345, 387 S.E.2d 812 (1989), that "[t]he crimes of abduction with intent to defile, W. Va. Code, 61-2-14 (1984), and kidnapping with intent to avoid arrest, W. Va. Code, 61-2-14a (1965), are separate offenses." Although Petitioner convinced the circuit court to give a jury instruction as if the crime of abduction with intent to defile is a lesser included offense of kidnapping, in their briefing to this Court, the parties now agree that the crime of abduction with intent to defile is not a lesser included offense of kidnapping.
The 1999 version of this statute is applicable to this appeal.
Even so, on direct appeal, this Court previously found that Petitioner, by offering the jury instruction at issue, waived any error:
We also find that the petitioner waived any error regarding this jury instruction. As we stated in Lease v. Brown, 196 W.Va. 485, 473 S.E.2d 906 (1996), when a defendant submits the instruction, "any error stemming from its inclusion in the case has either been waived or deemed ‘invited error.’ " Id. at 488, 473 S.E.2d at 909 (internal citation omitted). Moreover, "[n]o party may assign as error the giving or the refusal to give an instruction ... unless that party objects thereto before the arguments to the jury are begun, stating distinctly the matter to which that party objects and the grounds of the objection[.]" W.Va. R.Crim. P. 30, in part.
Lewis , 235 W. Va. 694, 703 n.24, 776 S.E.2d 591, 600 n.24 (2015). This waiver was the direct result of the jury instruction at issue being offered by Petitioner :
[H]e specifically requested that the jury be instructed on abduction with intent to defile, as a lesser included offense of kidnapping. Moreover, the record reflects that the petitioner approved the verdict form that allowed for a guilty verdict on both abduction with intent to defile and second degree sexual assault. Consequently, the petitioner cannot now complain of his tactical decision. Even if waiver were not evident from the record in this case, we nonetheless find no error.
Id. , 235 W. Va. 694, 702, 776 S.E.2d 591, 599.
Clearly, these findings in Lewis "previously and finally adjudicated ... on the merits" all issues regarding this jury instruction. W. Va. Code § 53-4A-1(b)(1967). However, even if a contention has been previously and finally adjudicated on the merits, Petitioner could still be entitled to habeas relief, if "said decision upon the merits is clearly wrong." Id . To determine if our prior decision in Lewis was clearly wrong, we therefore must examine Lewis in light of the allegation raised in this appeal regarding this jury instruction. As we discuss below, we believe that our prior reasoning was sound, and Petitioner, by inviting and benefiting from the error he created, is not entitled to relief on this issue.
We begin our discussion of this issue by noting that on a direct appeal, "[a] defendant in a criminal case cannot invite the trial court to give an instruction on a lesser included offense, and then complain on appeal that such an instruction should not have been given." Louis J. Palmer, Jr., et al., Handbook on Evidence for West Virginia Lawyers , § 103.03[1][d] (Supp. 2018). This rule is firmly established in our case law. See State v. Tidwell , 215 W. Va. 280, 599 S.E.2d 703 (2004) and State v. Boyd , 209 W. Va. 90, 543 S.E.2d 647 (2000).
In Tidwell, the Defendant was indicted for robbery in the first degree, in violation of West Virginia Code § 61-2-12(a) (2000), and assault during the commission of a felony, in violation of West Virginia Code § 61-2-10 (1923). See Tidwell , 215 W. Va. 280, 282, 599 S.E.2d 703, 706. At trial, the Defendant – without objection – offered jury instructions allowing the jury to convict him of unlawful assault as a lesser included offense of assault during the commission of a felony:
During the proceedings below, Tidwell’s counsel offered various instructions to the Circuit Court including Defendant’s Instruction Number 4 on unlawful assault. That instruction was subsequently incorporated, without objection, into the Circuit Court’s charge to the jury wherein the jury was told that a conviction of unlawful assault could be returned under Count 2 of the indictment as a lesser included offense of assault during the commission of a felony. The verdict form reflecting that option was not objected to by appellant Tidwell.
Id ., 215 W. Va. 280, 283, 599 S.E.2d 703, 706. Tidwell was convicted of unlawful assault as a lesser included offense of assault during the commission of a felony and another charge unrelated to this appeal. Id ., 215 W. Va. 280, 282, 599 S.E.2d 703, 705. Like here, in Tidwell , both the State and Tidwell "cast doubt upon the validity of the instruction that allowed the jury to consider unlawful assault as a lesser included offense of assault during the commission of a felony." Id ., 215 W. Va. 280, 283, 599 S.E.2d 703, 706. In holding that "a party cannot invite instructional error and then raise it on appeal," Id., 215 W. Va. 280, 282, 599 S.E.2d 703, 705, Tidwell cites to Syllabus Point 5 of State v. Calhoun, 67 W. Va. 666, 69 S.E. 1098 (1910), which provides:
Though there be error in instructions given on behalf of the prevailing party, yet the judgment will not for this reason be reversed if it appears that the same error was introduced into the record by instructions given at the instance of or was invited by the other party.
Importantly, this Court found no error and affirmed Tidwell’s conviction on the lesser included offense, based upon the instruction that he offered at trial, as "[a]ny error concerning the unlawful assault conviction was invited by appellant Tidwell." Tidwell , 215 W. Va. 280, 282, 599 S.E.2d 703, 705 (2004).
Likewise, Boyd was indicted on one count of felony possession with intent to deliver, and two misdemeanor weapons counts. Boyd , 209 W. Va. 90, 91, 543 S.E.2d 647, 648 (2000). The parties jointly moved to dismiss the misdemeanor charges on the grounds that they were barred by the statute of limitations. See id. Nonetheless, at trial, Boyd "successfully requested a jury instruction on the lesser included misdemeanor offense of possession of a Schedule I controlled substance. The jury convicted the appellant of the lesser included offense." Id. After trial, Boyd moved that the misdemeanor conviction be set aside because the statute of limitations had run. See id. The circuit court denied that motion. See id.
On appeal, Boyd renewed his argument that his conviction for misdemeanor possession of a controlled substance should have been set aside as time-barred. See id. We held that "[w]hen a defendant is not indicted within one year of the date on which an offense is committed but requests the circuit court to instruct the jury on a time-barred lesser included offense, the defendant by that act waives the statute of limitations defense contained in W.Va. Code § 61–11–9." Syllabus Point 3, Id. , 209 W. Va. 90, 543 S.E.2d 647 (2000). The reasoning behind this holding was stated as:
The requested charge was obviously in the appellant’s best interest. He requested the charge, was convicted under the charge, and benefitted from the charge. He cannot now complain of the result. His actions constitute a waiver of the time limitation contained in W.Va.Code § 61–11–9. To hold otherwise would allow defendants to sandbag trial judges by requesting and approving an instruction they know or should know would result in automatic reversal if given. "After a guilty verdict has been returned based on the requested instruction, defense counsel cannot be allowed to change legal positions in midstream and seek a reversal based on that error." Weber v. State, 602 So.2d 1316, 1319 (Fla.App. 5 Dist.1992).
Id. , 209 W. Va. 90, 94, 543 S.E.2d 647, 651. Clearly, our prior jurisprudence has affirmed convictions where criminal defendants have offered jury instructions of unindicted lesser included offenses, like Tidwell , and where a conviction would otherwise be barred by the statute of limitations, like Boyd . We believe this logic applies to this case, where Petitioner requested a beneficial jury instruction.
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. However, we are mindful of our previous holding in Syllabus Point 7 of State v. Corra , 223 W. Va. 573, 678 S.E.2d 306 (2009), "[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."
We find, however, that a review of Corra reveals such a bright-line rule was not intended in every case. In Corra, the defendant was indicted for "furnishing ‘alcoholic liquors’ to persons unrelated to the defendant who are under the age of 21." Id., 223 W. Va. 573, 577, 678 S.E.2d 306, 310. However, the charge given by the circuit court to the jury stated that Corra could be convicted for providing beer to persons under 21 and unrelated to the defendant. Id . Corra held that these two acts represented two separate misdemeanors under West Virginia law, and an indictment for one did not include an indictment for the other. Id., 223 W. Va. 573, 583, 678 S.E.2d 306, 316.
We note there is no right to an indictment for a misdemeanor in West Virginia. See W. Va. Const. , Art. III, § 4.
One key distinction between Corra and the case at bar is the fact that in Corra the Defendant acquiesced in the State’s offered jury instruction. See id. , 223 W. Va. 573, 578, 678 S.E.2d 306, 311. In this case, Petitioner not only offered the jury instruction at issue, but, far from being surprised, he instead greatly benefitted from that instruction. The penalty for kidnapping is a life sentence, where the penalty for the crime of abduction with intent to defile, which Petitioner requested the jury to be instructed upon, is three to ten years in the penitentiary. Compare W. Va. Code § 61-2-14a (1999), with W. Va. Code § 61-2-14 (1984). By strategically inserting this instruction into the trial, Petitioner literally avoided a possible life sentence.
Nonetheless, there is dicta in Corra that states when a criminal defendant " ‘invited’ [an] error – implicitly or as a trial strategy – [such error] does not negate our prior holdings that it is, at the end of the day, the trial court’s obligation to get it right. We therefore find the State’s argument that the error at issue was ‘invited error’ from which the defendant should not benefit unpersuasive. ..." Corra , 223 W. Va. 573, 678 S.E.2d 306, 316 n.10. We believe a recent opinion of The United States Supreme Court requires us to reconsider that dicta on the issue of whether a criminal defendant’s consent to proceeding in a certain manner precludes his later complaint that such proceeding – that he requested – violated a constitutional protection. See Currier v. Virginia , ––– U.S. ––––, 138 S.Ct. 2144, 201 L.Ed.2d 650 (2018). As we discuss below, that dicta in Corra is inconsistent with Currier on this issue, in that Currier clearly provides that a criminal defendant may, through his or her consent, waive the right to challenge a conviction, where, as here, a constitutional protection is implicated.
This Court has previously cautioned that language contained in footnotes carries no precedential value. See State ex rel. Med. Assurance of W. Va., Inc. v. Recht , 213 W. Va. 457, 472, 583 S.E.2d 80, 94 (2003).
The facts in Currier show that Currier was indicted on three charges – (1) burglary, (2) grand larceny, and (3) possession of a firearm by a convicted felon. See id ., 138 S.Ct. 2144, 2148. Currier and the prosecution agreed to sever these counts, and first proceed to trial solely on the burglary and larceny charges. See id . At that trial, Currier was acquitted. See id . He then argued that holding a second trial on the charge of possession of a firearm by a convicted felon would subject him to double jeopardy. See id., 138 S.Ct. 2144, 2148-2149. The trial court denied Currier’s motion and he was convicted of that charge at a second jury trial. See id ., 138 S.Ct. 2144, 2149. The Virginia Supreme Court affirmed the conviction, and Currier appealed to the United States Supreme Court, which granted certiorari. Id.
In its opinion, the United States Supreme Court discussed prior precedent of that Court, which was asserted by Currier to bar his subsequent prosecution:
Currier suggests this Court’s decision in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), requires a ruling for him. There, the government accused a defendant of robbing six poker players in a game at a private home. At the first trial, the jury acquitted the defendant of robbing one victim. Then the State sought to try the defendant for robbing a second victim. This Court held the second prosecution violated the Double Jeopardy Clause. Id., at 446, 90 S.Ct. 1189. To be sure, the Clause speaks of barring successive trials for the same offense. And, to be sure, the State sought to try the defendant for a different robbery. But, the Court reasoned, because the first jury necessarily found that the defendant "was not one of the robbers," a second jury could not "rationally" convict the defendant of robbing the second victim without calling into question the earlier acquittal. Id., at 445–446, 90 S.Ct. 1189. In these circumstances, the Court indicated, any relitigation of the issue whether the defendant participated as "one of the robbers" would be tantamount to the forbidden relitigation of the same offense resolved at the first trial. Id., at 445, 90 S.Ct. 1189 ; see Yeager v. United States, 557 U.S. 110, 119–120, 129 S.Ct. 2360, 174 L.Ed.2d 78 (2009).
Id . Rejecting that double jeopardy claim, the United States Supreme Court expressly noted that "a critical difference immediately emerges between our case and Ashe . Even assuming without deciding that Mr. Currier’s second trial qualified as the retrial of the same offense under Ashe, he consented to it." Id. , 138 S. Ct. 2144, 2150.
Consequently, that Court held:
Historically, courts have treated greater and lesser-included offenses as the same offense for double jeopardy purposes, so a conviction on one normally precludes a later trial on the other. Id., [Jeffers v. United States , 432 U.S. 137] at 150–151 97 S.Ct. 2207 [53 L.Ed.2d 168 (1977) ] (plurality opinion); Brown v. Ohio, 432 U.S. 161, 168–169, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) (collecting authorities). But, Jeffers concluded, it’s different when the defendant consents to two trials where one could have done. If a single trial on multiple charges would suffice to avoid a double jeopardy complaint, "there is no violation of the Double Jeopardy Clause when [the defendant] elects to have the ... offenses tried separately and persuades the trial court to honor his election." 432 U.S. at 152, 97 S.Ct. 2207.
Id. The Court gave a straight-forward explanation of this rationale:
If a defendant’s consent to two trials can overcome concerns lying at the historic core of the Double Jeopardy Clause, so too we think it must overcome a double jeopardy complaint under Ashe .
Id.
As we apply Currier to Corra , we find Corra should only apply in cases where a defendant is called upon to defend against a charge that is surprising or misleading to the defendant, increases his or her burden of proof, or is otherwise prejudicial to the defendant. Corra contemplates such a situation when it cites to Justice McHugh’s holding in Syllabus Point 3 of State v. Johnson , 197 W. Va. 575, 476 S.E.2d 522 (1996) (superseded by rule on other grounds):
If the proof adduced at trial differs from the allegations in an indictment, it must be determined whether the difference is a variance or an actual or a constructive amendment to the indictment. If the defendant is not misled in any sense, is not subjected to any added burden of proof, and is not otherwise prejudiced, then the difference between the proof adduced at trial and the indictment is a variance which does not usurp the traditional safeguards of the grand jury. However, if the defendant is misled, is subjected to an added burden of proof, or is otherwise prejudiced, the difference between the proof at trial and the indictment is an actual or a constructive amendment of the indictment which is reversible error.
Syllabus Point 6, Corra , 223 W. Va. 573, 678 S.E.2d 306 (emphasis added). Currier clarifies this point. A criminal defendant who consents to proceeding on a lesser included offense by inducing a trial court to give an erroneous jury instruction is not prejudiced in any way.
Here, Petitioner offered the jury instruction which he now challenges, and the parties proceeded to verdict as if abduction with intent to defile was a lesser included offense of the indicted charge. Although the parties now agree that abduction with intent to defile is not a lesser included offense, Petitioner’s position at trial that it was a lesser included offense placed him fully on notice of the need to mount a defense to that charge. Indeed, this Court in Corra made clear that its holding did not bar a defendant from being convicted of a lesser included offense not contained in the indictment because in such a case the defendant would "be on notice to mount a defense to both the primary offense and any lesser-included defense." Corra , 223 W. Va. 573, 583, 678 S.E.2d 306, 316. Having offered the jury instruction maintaining that abduction with intent to defile was a lesser included offense of the charge of kidnapping, Petitioner clearly cannot now assert that he was not on notice of the need to mount a defense to the charge of abduction with intent to defile. See Currier , 138 S. Ct. 2144, 2150. The same principle cited by this Court in Corra permitting conviction of a lesser included offense even when a defendant is not indicted on such offense applies here. Petitioner was not prejudiced by his conviction of an offense which, while in hindsight is not a lesser included offense of the charge on which he was indicted, is certainly a (1) less serious offense, (2) an offense on which he was convicted based upon a jury instruction he offered, and (3) was not a surprise to him since both he and the State proceeded to verdict as if it were, in fact, a lesser included offense.
Based upon this analysis, Petitioner cannot complain of an error of procedural due process because he had notice of the crime of abduction with intent to defile when he offered the jury instruction. See Corra , 223 W. Va. 573, 580, 678 S.E.2d 306, 313 (2009) ("No principal of procedural due process is more clearly established than notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge."). By persuading the circuit court to give his requested jury instruction, Petitioner avoided a potential life sentence. See Currier , 138 S. Ct. 2144, 2150. Petitioner was acquitted of kidnapping, but convicted of abduction with intent to defile, thereby reducing the restraint on his liberty from life to that of three to ten years. Petitioner’s argument – that we should reverse his conviction based upon a jury instruction he offered and benefited from – would allow defendants to offer jury instructions, and, if the circuit court erroneously gives them, have any criminal penalty magically wiped out by their own chicanery. Thus, we reaffirm that:
"Invited error" is a cardinal rule of appellate review applied to a wide range of conduct. It is a branch of the doctrine of waiver which prevents a party from inducing an inappropriate or erroneous response and then later seeking to profit from that error. The idea of invited error is not to make the evidence admissible but to protect principles underlying notions of judicial economy and integrity by allocating appropriate responsibility for the inducement of error. Having induced an error, a party in a normal case may not at a later stage of the trial use the error to set aside its immediate and adverse consequences.
State v. Crabtree , 198 W. Va. 620, 627, 482 S.E.2d 605, 612 (1996).
Accordingly, we believe our prior holdings on invited instructional error and the United States Supreme Court’s opinion in Currier are persuasive. We therefore hold that 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.
IV. CONCLUSION
Accordingly, we affirm the circuit court.
Affirmed.
JUSTICE WORKMAN dissents and reserves the right to file a dissenting opinion.
WORKMAN, J., dissenting:
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, 827 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:
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 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.
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. ...’
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 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. La Manca , 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 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)."
193 W. Va.. 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 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 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, 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 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.
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.
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 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
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—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.