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No. 28201 - State of West Virginia v. Thomas Rogers
Davis, J., dissenting:
The decision reached by the majority
opinion in this case is disturbing to me for two reasons. First, the majority
opinion has utilized constitutional double jeopardy principles to analyze the
issues in this case when the defendant did not invoke double jeopardy as a basis
for challenging the convictions and sentences. The majority opinion sua sponte
invoked double jeopardy to reach the result achieved in this case. Second, assuming
the defendant had raised double jeopardy principles, there was no double jeopardy
violation in this case. For these reasons, I dissent from the majority opinion.
Convictions and Sentences Involving Elkins Distributing Company
The defendant in this case was
convicted and sentenced for committing the crimes of fraudulent schemes and
false pretenses against Elkins Distributing Company (hereinafter referred to
as Elkins). Before this Court, the defendant made a simple sufficiency
of the evidence argument as to both crimes against Elkins. The defendant argued:
There was simply no proof at trial that the defendant obtained anything
by means of false pretenses or fraudulent conduct from Elkins Distributing Company.
The defendant's basic argument
of insufficiency of evidence, which the state had an opportunity to address and
did address in its brief, was sua sponte transformed by the majority opinion
into a claim that double jeopardy barred the defendant from being convicted and
sentenced for both offenses against Elkins. There was absolutely no mention in
the defendant's brief, nor any reasonable inference therefrom, that double jeopardy
applied to the crimes against this victim. Consequently, the majority was wrong
in addressing the issue of double jeopardy. This Court has developed a long line
of cases where we have consistently held that errors neither briefed nor
argued are . . . considered abandoned. State v. Goodmon, 170 W.
Va. 123, 125 n.1, 290 S.E.2d 260, 262 n.1 (1981). See also State v.
Lockhart, ___ W. Va. ___, ___ n.4, ___ S.E.2d ___, ___ n.4 (No. 27053, Dec.
1, 2000) (Assignments of error that are not argued in the briefs on appeal
may be deemed by this Court to be waived.); State v. Helmick, 201
W. Va. 163, 172, 495 S.E.2d 262, 271 (1997) (same); State v. Potter, 197
W. Va. 734, 741 n.13, 478 S.E.2d 742, 749 n.13 (1996); (same); Syl. pt. 9, State
v. Garrett, 195 W. Va. 630, 466 S.E.2d 481 (1995) (same); State v. George
W.H., 190 W. Va. 558, 563 n.6, 439 S.E.2d 423, 428 n.6 (1993) (same); State
v. Lola Mae C., 185 W. Va. 452, 453 n.1, 408 S.E.2d 31, 32 n.1 (1991) (same);
Syl. pt. 1, State v. Schoolcraft, 183 W. Va. 579, 396 S.E.2d 760 (1990)
(same); State v. Sayre, 183 W. Va. 376, 379 n.2, 395 S.E.2d 799, 802 n.2
(1990) (same); State v. Stacy, 181 W. Va. 736, 739 n.3 384 S.E.2d 347,
350 n.3 (1989) (same); State v. Moss, 180 W. Va. 363, 374 n.16, 376 S.E.2d
569, 580 n.16 (1988)(same); State v. Flint, 171 W. Va. 676, 679 n.1, 301
S.E.2d 765, 768 n.1 (1983) (same); State v. Fairchild, 171 W. Va. 137,
150 n.7, 298 S.E.2d 110, 123 n.7 (1982) (same); State v. Buck, 170 W. Va.
428, 430 n.2, 294 S.E.2d 281, 284 n.2 (1982) (same); State v. Church, 168
W. Va. 408, 410 n.1, 284 S.E.2d 897, 899 n.1 (1981) (same). Because of this Court's
history of prohibiting appellate consideration of an issue not raised as an assignment
of error, the majority opinion was without legal justification to sua sponte
resolve the Elkins crimes on an issue not raised by the defendant.See
footnote 1 1
Assuming arguendo that the
defendant alleged double jeopardy as an assignment of error to the Elkins crimes,
there was no double jeopardy violation in his convictions and sentences for
the crimes of fraudulent schemes and false pretenses. The statute setting out
the fraudulent schemes offense specifically states that [a] violation
of law may be prosecuted under this section notwithstanding any other provision
of this code. W. Va. Code § 61-3-24d(c). Clearly, the legislative
intent provides that this crime may be punishable regardless of any other criminal
statute. Our cases have held that [i]n ascertaining legislative intent,
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.
Syl. pt. 8, in part, State v. Gill, 187 W. Va. 136, 416 S.E.2d 253 (1992).
Disregarding the clarity of the legislature's intent as embodied in W. Va. Code
§ 61-3-24d(c), the majority opinion makes the unconscionable conclusion
that the language at issue fails to constitute a clear and definite statement
of such an intent. The majority's conclusion is wrong. What more could
the legislature have done to express its clear intent to permit prosecution
under W. Va. Code § 61-3-24d, regardless of any other offense charged?See
footnote 2 2
Convictions and Sentences Involving Micro Vane, Inc.
The defendant in this case was convicted and sentenced for committing the
crimes of fraudulent schemes and embezzlement against Micro Vane Inc. (hereinafter
referred to as Micro). The defendant contended in his brief that: Appellant Rogers
cannot be convicted of both embezzlement and fraudulent schemes with regard to the same
transaction. Appellant can either be the lawful possessor of the items or not. It cannot be
both ways. The defendant did not raise double jeopardy as a basis for challenging his
crimes against Micro. The majority opinion sua sponte decided to raise this issue.
The majority opinion tersely
reaffirmed its earlier conclusion that there was no clear legislative intent
to prosecute for fraudulent schemes, in addition to other similar offenses.See
footnote 3 3
After concluding that there was no clear legislative intent on the issue,
the majority opinion turned to the Blockburger/Zaccagnini test, which
holds: Where the same
act or transaction constitutes a violation of two distinct statutory provisions,
the test to be applied to determine whether there are two offenses or only one
is whether each provision requires proof of an additional fact which the other
does not. Syl. pt. 8, State v. Zaccagnini, 172 W. Va. 491, 308
S.E.2d 131 (1983). Accord Blockburger v. United States,
284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306, 309 (1932).
After applying the Blockburger/Zaccagnini
test, the majority opinion concluded that while the embezzlement offense contained
an element different from the fraudulent schemes offense, the fraudulent schemes
offense did not contain an element different from the embezzlement offense.
This conclusion is incorrect. The majority opinion reached this wrong conclusion
because it actually omitted the additional elements found in W. Va. Code §
61-3-24d that are not contained in the embezzlement statute. Specifically, the
majority opinion failed to examine additional elements of the fraudulent schemes
offense that are contained in W. Va. Code § 61-3-24d(b).See
footnote 4 4
Under W. Va. Code § 61-3-24d(b), the state may cumulate
monies illegally obtained when there is proof of a common scheme or plan.
The state does not have to prove a common scheme or plan to prosecute
for the offense of embezzlement.See footnote
Had the majority opinion examined W. Va. Code § 61-3-24d in its entirety,
it would have concluded that the crimes of fraudulent schemes and embezzlement
each contain elements that are different.See
footnote 6 6
Disposition of Case
The final dissenting issue involves the disposition of the case on remand.
The majority opinion states that:
By requiring the entry of new conviction and sentencing
orders, we do not mean to imply that a further pre-sentence
report is required or that the trial court's discretion in
permitting probation or imposing consecutive sentences should
be disturbed. We leave those matters to the sound discretion
of the trial court.
This disposition is flawed. In the language quoted above, the majority has implied that the
trial court has discretion to resentence the defendant in any manner that it chooses. To the
contrary, on remand the trial court may not impose a greater penalty than that which was
originally imposed. That is, initially the trial court suspended the sentences and placed the
defendant on probation. On remand, the trial court does not have discretion to deny the
suspension and probation. [A] defendant should not face increased punishment for having
successfully appealed the initial conviction. People v. Harvest, 84 Cal. App. 4th 641,
646, 101 Cal. Rptr. 2d 135, 137 (2000). See also Reyes v. State, 978 P.2d 635, 637
(Alaska 1999) (One principle of double jeopardy law is that 'once a sentence has been
meaningfully imposed, it may not, at a later time, be increased.' (quoting Sonnier v.
State, 483 P.2d 1003, 1005 (Alaska 1971)).
For the reasons stated, I respectfully dissent from the majority opinion in this
1The majority opinion attempts to justify its sua sponte actions in this case in
footnote 15 of the opinion. In that footnote the majority quotes State v. Salmons, 203
W. Va. 561, 571 n.13, 509 S.E.2d 842, 852 n.13 (1998), wherein we held that [a]lleged
errors of a constitutional magnitude will generally trigger a review by this Court under the
plain error doctrine. Obviously, the quote from Salmons does not support the majority's
actions in this case. Salmons specifically states that alleged errors may trigger the plain
error rule. However, in the instant case the defendant did not allege any constitutional
2The false pretense offense dates back to 1849, when West Virginia was part of
Virginia. The fraudulent scheme offense was created in 1995. Clearly, if nothing else, the
dates of the creation of the offenses should inform the majority that the legislature intended
to create separate punishable offenses.
If the legislature had not made its intent clear with respect to the fraudulent scheme
statute, I would readily concede that double jeopardy principles prevent a prosecution for
both fraudulent scheme and false pretenses under the facts of the crimes against Elkins.
However, I make this concession for reasons slightly different than those stated by the
majority opinion. The majority states that the elements of false pretenses and fraudulent
scheme are exactly the same. I disagree. As I discuss in Part II of this dissent, the
fraudulent scheme statute requires the prosecutor to prove the element of a common
scheme or plan, which element is not part of the false pretense offense. See infra note
3I have previously stated my position that the legislature in fact expressly intended
for the fraudulent schemes offense to be prosecuted in addition to other like offenses. See
supra note 2 and accompanying text.
4This provision of the statute is the basis for the legislature creating the crime of
fraudulent schemes. Without the common scheme or plan provision, the crime of
fraudulent schemes would indeed be identical to the crime of false pretenses. See supra
5One of the elements in the embezzlement offense that is not found in the fraudulent
schemes offense is proof that a person came lawfully into possession of the property taken.
6The majority opinion failed to demonstrate an understanding of what the
prosecution had to prove as to both offenses. The indictment in the case accused the
defendant of embezzling software and hardware pertaining to computer systems, which
had came into his possession and had been placed under his care and management by virtue
of his position and employment as sales representative of Micro Vane Inc. On the other
hand, the indictment accused the defendant of fraudulent schemes in his retention of the
money he received from the embezzled computer equipment. Part of the money
received by the defendant for the sale of the embezzled computer equipment belonged to
Micro. In the final analysis, the prosecutor had to prove that the defendant embezzled
computer equipment and engaged in fraudulent schemes to retain money that legally
belonged to Micro.