Jason E. Huber, Esq.
Forman & Crane, L.C.
Charleston, West Virginia
Attorney for Appellant
Darrell V. McGraw, Jr.
Dawn E. Warfield
Deputy Attorney General
Charleston, West Virginia
Attorneys for Appellee
1. In reviewing challenges to the findings and conclusions of the circuit
court, we apply a two-prong deferential standard of review. We review the final order and
the ultimate disposition under an abuse of discretion standard, and we review the circuit
court's underlying factual findings under a clearly erroneous standard. Questions of law are
subject to a de novo review. Syl. pt. 1, Burnside v. Burnside, 194 W. Va. 263, 460 S.E.2d
2. The Double Jeopardy Clause in Article III, Section 5 of the West
Virginia Constitution, provides immunity from further prosecution where a court having
jurisdiction has acquitted the accused. It protects against a second prosecution for the same
offense after conviction. It also prohibits multiple punishments for the same offense. Syl.
pt. 1, Conner v. Griffith, 160 W. Va. 680, 238 S.E.2d 529 (1977).
3. The purpose of the Double Jeopardy Clause is to ensure that sentencing
courts do not exceed, by the device of multiple punishments, the limits prescribed by the
legislative branch of government, in which lies the substantive power to define crimes and
prescribe punishments. Syl. pt. 3, State v. Sears, 196 W. Va. 71, 468 S.E.2d 324 (1996).
4. A claim that double jeopardy has been violated based on multiple
punishments imposed after a single trial is resolved by determining the legislative intent as
to punishment. Syl. pt. 7, State v. Gill, 187 W. Va. 136, 416 S.E.2d 253 (1992).
5. Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation. Syl. pt. 2, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968).
Petitioner below and appellant herein, Mary Margaret Green, was sentenced
to eight consecutive one-to-ten year terms of imprisonment after pleading guilty to ten counts
of uttering in violation of W. Va. Code § 61-4-5(a). Green now appeals asserting that the
Circuit Court of Cabell County, in granting habeas corpus relief on her claim that such
multiple sentences violated double jeopardy principles, erred by failing to vacate all but one
of her convictions and reduce her sentence to a single term, so as to correspond to the court's
determination that her guilty plea encompassed only one offense of uttering. The State cross-
assigns error, arguing that the circuit court erred by ruling that Green's admitted conduct of
uttering several forged instruments during one transaction constituted a single crime. We
find merit in the State's argument, and accordingly reverse.
A plea hearing was conducted pursuant to W. Va. R. Crim. P. 11 on June 4,
1993, where it was established that Green obtained money orders at a SuperAmerica
convenience store in Chesapeake, Ohio; altered the amount of the instruments from $40 to
$400; and forged endorsements on each. Later, on April 7, 1992, she presented ten of these
forged money orders, together with a single deposit slip, to a teller at the Twentieth Street
Bank in Huntington, West Virginia. Green deposited a portion of the money into the
checking account of a third-party, and received the balance of the proceeds in cash. During
the plea hearing, Green acknowledged that under the terms of the plea agreement she could
receive consecutive one-to-ten year sentences on each of the ten counts, with a maximum
possible sentence of 100 years.
The circuit court subsequently sentenced Green to one-to-ten years
imprisonment on each count, with Counts 1 through 8 to be served consecutively, and Counts
9 and 10 to each be served concurrently with Count 8. No appeal was taken, nor was there
any claim before the sentencing court that the multiple convictions or consecutive sentences
violated double jeopardy limitations.
Green later filed two pro se actions for post-conviction relief in the Circuit
Court of Cabell County under the West Virginia Post-Conviction Habeas Corpus Act, W. Va.
Code §§ 53-4A-1 to -11. The first, filed on January 20, 1995 (Case No. 95-C-39), alleged
that the consecutive sentences imposed by the trial court violated double jeopardy
proscriptions by imposing multiple punishments for what was asserted to be a single crime.
This petition was dismissed without a hearing by order entered October 24, 1995, on the
ground that the double jeopardy claim was waived by entry of a counseled guilty plea.
The second petition for habeas relief, filed on August 20, 1996 (Case No.
96-C-558), challenged the multiple sentences on the grounds of double jeopardy,
disproportionality, and cruel and unusual punishment. This petition was also dismissed by
the circuit court on September 27, 1996, on the ground that such claims had been previously
On May 6, 1998, Green filed a pro se petition for habeas corpus relief under
this Court's original jurisdiction, claiming that her consecutive sentences violated double
jeopardy and proportionality principles, and that trial counsel was ineffective in failing to
challenge the multiple sentences imposed following entry of her guilty plea. The Court
issued a writ of habeas corpus on September 30, 1998, returnable to the Circuit Court of
Cabell County (Case No. 96-C-627), for the purpose of conducting an omnibus habeas
corpus hearing pursuant to Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981).
At the omnibus hearing, where she was represented by counsel, Green further substantiated her double jeopardy claim by succinctly testifying that this was one crime. I passed these money orders as a set of ten with one teller with one deposit slip. It was one transaction. The State did not present any evidence to refute this allegation, but instead argued that Green waived her double jeopardy claim by pleading guilty to the ten uttering offenses.
At the conclusion of a hearing held on January 29, 1999, the circuit court ruled as a matter of law that Green's double jeopardy claim had not been waived by entry of a guilty plea,See footnote 3 3 and further found that the conduct encompassed by the ten pleaded-to counts of the indictment were part of one continuous transaction, thus warranting relief. As a remedy, the court from the bench ordered that all ten counts be served concurrently. The written order subsequently entered on April 15, 1999, however, modified Green's sentence to effectively impose two consecutive terms, rather than the single term indicated by the earlier bench ruling.See footnote 4 4 Shortly thereafter, Green pointed out this inconsistency in a pro se Motion for Correction of Sentence, filed on April 19, 1999. The circuit court never ruled on this motion, although it did respond to a later inquiry by stating in correspondence that the Order reflects a change of opinion. No other basis for the particular relief ordered by the circuit court is apparent in the record. It is from this April 15, 1999 order that both Green and the State now appeal.
In this challenge to the circuit court's rulings on a petition seeking habeas
corpus relief, we apply the broadly-applicable standard enunciated in Phillips v. Fox, 193
W. Va. 657, 661, 458 S.E.2d 327, 331 (1995): In reviewing challenges to the findings and
conclusions of the circuit court, we apply a two-prong deferential standard of review. We
review the final order and the ultimate disposition under an abuse of discretion standard, and
we review the circuit court's underlying factual findings under a clearly erroneous standard.
Questions of law are subject to a de novo review. See also syl. pt. 1, Burnside v. Burnside,
194 W. Va. 263, 460 S.E.2d 264 (1995). As we have repeatedly stressed, [f]indings of fact
made by a trial court in a post-conviction habeas corpus proceeding will not be set aside or
reversed on appeal by this Court unless such findings are clearly wrong. Syl. pt. 1, State ex
rel. Postelwaite v. Bechtold, 158 W. Va. 479, 212 S.E.2d 69 (1975), cert. denied, 424 U.S.
909, 96 S. Ct. 1103, 47 L. Ed. 2d 312 (1976). See also Stuckey v. Trent, 202 W. Va. 498,
501, 505 S.E.2d 417, 420 (1998); syl. pt. 2, State ex rel. Kidd v. Leverette, 178 W. Va. 324,
359 S.E.2d 344 (1987).
Among the protections afforded criminal defendants by the Double Jeopardy
Clauses of the West Virginia and federal constitutionsSee footnote 6
is the prohibition against multiple
punishments for the same offense. See syl. pt. 5, State v. Johnson, 197 W. Va. 575, 476
S.E.2d 522 (1996); syl. pt. 1, Conner v. Griffith, 160 W. Va. 680, 238 S.E.2d 529 (1977).See footnote 7
In this case, whether Green's several convictions and sentences amount to constitutionally
impermissible multiple punishment turns on the question of whether the passing of several
forged instruments at one time and place in the course of a single transaction comprises one
or multiple offenses under W. Va. Code § 61-4-5(a).
As an initial matter, we note that both parties, although they reach different
conclusions, approach the present issue using the same-elements test enunciated in
Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), and
substantially adopted by this Court in State v. Zaccagnini, 172 W. Va. 491, 308 S.E.2d 131
(1983).See footnote 8
Reliance on the Blockburger rule in this context, however, is misplaced.
The protections afforded by the Double Jeopardy Clause place few, if any,
limitations on a legislative body's power to delineate criminal offenses and fix their
punishment, see State v. Rummer, 189 W. Va. 369, 374, 432 S.E.2d 39, 44 (1993); State v.
Gill, 187 W. Va. 136, 141, 416 S.E.2d 253, 258 (1992); rather, the prohibition merely acts
to ensure that sentencing courts do not exceed, by the device of multiple punishments, the
limits prescribed by the legislative branch of government, in which lies the substantive power
to define crimes and prescribe punishments, syl. pt. 3, State v. Sears, 196 W. Va. 71, 468
S.E.2d 324 (1996). See also State v. Myers, 171 W. Va. 277, 280, 298 S.E.2d 813, 816
(1982) (The double jeopardy bar against multiple punishments is to prohibit judges from
imposing more penalty than the legislature has sanctioned.) (citation omitted); State v. Gill,
187 W. Va. at 141, 416 S.E.2d at 258 ('With respect to cumulative sentences imposed in a
single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from
prescribing greater punishment than the legislature intended.') (quoting Missouri v. Hunter,
459 U.S. 359, 366, 103 S. Ct. 673, 678, 74 L. Ed. 2d 535, 542 (1983)).
The primary issue that arises in this context is whether particular offenses are
the same for double jeopardy purposes_a question that is invariably resolved by ascertaining
legislative intent. A claim that double jeopardy has been violated based on multiple
punishments imposed after a single trial is resolved by determining the legislative intent as
to punishment. Syl. pt. 7, State v. Gill, supra. In other words, the Double Jeopardy Clause
takes the substantive criminal law as it finds it. As we further explained in Gill,
a court should look initially at the language of the involved statutes and, if necessary, the legislative history to determine if the legislature has made a clear expression of its intention to aggregate sentences for related crimes. If no such clear legislative intent can be discerned, then the court should analyze the statutes under the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), to determine whether each offense requires an element of proof the other does not. If there is an element of proof that is different, then the presumption is that the legislature intended to create separate offenses.
Syl. pt. 8, Gill. The Blockburger test is merely a rule of construction premised on an
underlying presumption that the Legislature [does] not intend to punish the same offense
under two different statutes. Sears, 196 W. Va. at 82, 468 S.E.2d at 335 (citation omitted).
Consequently, it has no application where the Legislature's intent as to multiple punishments
is otherwise clear. See Zaccagnini, 172 W. Va. at 502, 308 S.E.2d at 142; see also Sears,
196 W. Va. at 76, 468 S.E.2d at 329 (Blockburger test inapplicable where there is a clear
and definite statement of intent by Legislature that cumulative punishment is permissible).
Since we are dealing here with multiple charges under the same statutory
provision, the question we must grapple with is how far the statute will permit the conduct
at issue to be divided into separate criminal offenses. Put in proper nomenclature, the
relevant inquiry must be confined to a determination of [w]hat . . . [the legislature] has made
the allowable unit of prosecution. United States v. Universal C.I.T. Credit Corp., 344 U.S.
218, 221, 73 S. Ct. 227, 229, 97 L. Ed. 260, 264 (1952).See footnote 9
Blockburger analysis, by its own
terms, applies only to the question of whether the same act or transaction constitutes a
violation of two distinct statutory provisions. Blockburger, 284 U.S. at 304, 52 S. Ct.
at 182, 76 L. Ed. at 309 (emphasis added).See footnote 10
Thus, the same-elements test obviously provides
no guidance where the issue concerns the allowable unit of prosecution under a single
[I]f the prosecutions are under the same statute, a pure Blockburger test, focused on the statutory elements, is not helpful. The statutory elements are identical because the statutes are the same. A defendant can be prosecuted separately for successive violations of the same statute, such as thefts of two automobiles. The propriety of the separate prosecution turns on whether the charges reflect separate violations of the statute. Thus, Blockburger provides no guidance.
Anne Bowen Poulin, Double Jeopardy Protection Against Successive Prosecutions in Complex Criminal Cases: A Model, 25 Conn. L. Rev. 95, 118 (1992).
This limitation was recognized in Sanabria v. United States, 437 U.S. 54, 70
n.24, 98 S. Ct. 2170, 2182 n.24, 57 L. Ed. 2d 43, 57 n.24 (1978), where the United States
Supreme Court indicated that Blockburger is inapplicable in cases involving multiple
violations of a single statute. As one court adhering to Sanabria later observed, [w]here two
violations of the same statute rather than two violations of different statutes are charged,
courts determine whether a single offense is involved not by applying the Blockburger test,
but rather by asking what act the legislature intended as the 'unit of prosecution' under the
statute. United States v. Weathers, 186 F.3d 948, 952 (D.C. Cir. 1999) (citations omitted).
In other words, the Blockburger rule applies to determinations of whether [a legislature]
intended the same conduct to be punishable under two criminal provisions, and is
impertinent where multiple counts are charged under the same criminal provisions. United
States v. Kimbrough, 69 F.3d 723, 729 n.5 (5th Cir. 1995), cert. denied, 517 U.S. 1157, 116
S. Ct. 1547, 134 L. Ed. 2d 650 (1996). See also State v. Adel, 136 Wash.2d 629, 634, 965
P.2d 1072, 1074 (1998) (proper inquiry in a single-statute case is what 'unit of prosecution'
has the Legislature intended as the punishable act under the specific criminal statute)
(citation omitted); Rashad v. Burt, 108 F.3d 677, 679-80 (6th Cir. 1997) (The Blockburger
test is insufficient where . . . the concern is not multiple charges under separate statutes
. . . .), cert. denied, 522 U.S. 1075, 118 S. Ct. 850, 139 L. Ed. 2d 751 (1998); United States
v. Keen, 104 F.3d 1111, 1118 n.12 (9th Cir. 1996) (refusing to apply Blockburger test where
only one statutory provision involved); United States v. Christner, 66 F.3d 922, 928 (8th Cir.
1995) ([W]here the double jeopardy challenge focuses on separate punishments or
prosecutions for separate acts allegedly violating the same statutory provision, the 'same
elements' test, as enunciated in Blockburger, does not apply. In such cases, the issue is one
of statutory intent.). See generally George C. Thomas III, A Unified Theory of Multiple
Punishment, 47 U. Pitt. L. Rev. 1, 23-25 & n.115 (1985) (criticizing cases that erroneously
applied Blockburger in unit-of-prosecution context).
Thus, where a double jeopardy challenge is brought to multiple punishments
arising under the same statutory provision, the same-elements test of Blockburger does not
apply. Instead, whether a criminal defendant may be separately convicted and punished for
multiple violations of a single statutory provision turns upon the legislatively-intended unit
The State in its brief offers the following interpretation of the uttering offense
delineated within § 61-4-5(a): [G]iven that the statute provides for punishment for uttering
a single forged writing, it may reasonably be concluded that the uttering of several different
forged writings may give rise to multiple punishments for related crimes. The underlying
argument here is that because the statute uses of the term writing in its singular form, the
proper unit of prosecution for uttering must correspondingly be the number of individual
There is support for the State's grammatical reliance upon the statute's use of singular terms. In Williams v. West Virginia Dep't of Motor Vehicles, 187 W. Va. 406, 419 S.E.2d 474 (1992) (per curiam), the Court was called upon to determine the reach of W. Va. Code § 17D-2A-7(a), which provides, in part, as follows: Any owner of a motor vehicle . . . who fails to have the required security in effect at the time such vehicle is being operated upon the roads or highways of this State, shall have his operator's or chauffeur's license suspended by the commissioner . . . . (Emphasis added.) The question was whether suspensions could be imposed upon more than one co-owner of an automobile. This Court answered that question in the negative, finding that
in the context of W. Va. Code, 17D-2A-7(a), any must mean one or either. It is clear from the authorities cited herein that any may be used in either a singular or plural form. In this instance, the legislature used any in a singular context. All references to when the statute is applicable are in the singular. Furthermore, the legislature could easily have chosen the word all, which much more clearly stresses a plural form than any, when wording a statute.
187 W. Va. at 409-10, 419 S.E.2d at 477-78 (footnote omitted).
West Virginia Code § 61-4-5(a) clearly supports charging Green with separate
offenses based upon each document uttered. That section
If any person forge any writing, . . . to the prejudice of another's right, or utter or attempt to employ as true such forged writing, knowing it to be forged, he shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than one nor more than ten years, or, in the discretion of the court, be confined in jail not more than one year and be fined not exceeding five hundred dollars.
Id. (emphasis added).See footnote 12 12 As it did with respect to the statute at issue in Williams, the Legislature here has used any in the context of a singular noun, in this case writing. The only logical result that could be reached after examining § 61-4-5(a) is that each time a person utters a forged document, he shall be guilty of a felony.
Where the language of a statute is clear and without ambiguity the plain
meaning is to be accepted without resorting to the rules of interpretation. Syl. pt. 2, State
v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968). By its express terms, § 61-4-5(a) clearly
and unambiguously provides for separate punishments for each forged document uttered.See footnote 13
We therefore hold the circuit court erroneously concluded that a double jeopardy violation
occurred based upon Green's multiple convictions and sentences.
For the reasons stated, the judgment of the Circuit Court of Cabell County is
reversed, and this case is remanded for further proceedings consistent with this opinion.See footnote 14
Reversed and remanded.
That on or about the 7th day of April, 1992, in the County of Cabell, State of West Virginia, MARY MARGARET GREEN committed the offense of UTTERING by unlawfully and feloniously presenting a certain money order to an employee of the 20th Street Bank, Huntington, Cabell County, West Virginia, said money order being number __________, made payable to Roberta Chapman, in the amount of Four Hundred Dollars, which said money order the signature of Omi Chapman was forged, and the said MARY MARGARET GREEN, did utter and employ the aforesaid money order as true, with the intent to defraud, and to the prejudice of another's right and knowing the same to be forged, against the peace and dignity of the State.