Submitted: June 5, 2002
Filed: June 27, 2002
| Dennis V. DiBennedetto
Petersburg, West Virginia Attorney for Appellee
| Teresa A. Tarr, Esq.
Public Defender Corporation
Charleston, West Virginia
Attorney for Appellant
The Opinion of the Court was delivered PER CURIAM.
2. Under ex post facto
principles of the United States and West Virginia Constitutions, a law passed
after the commission of an offense which increases the punishment, lengthens
the sentence or operates to the detriment of the accused, cannot be applied
to him. Syllabus Point 1, Adkins v. Bordenkircher, 164 W.Va. 292,
262 S.E.2d 885 (1980).
In the instant case we affirm
the appellant's conviction for grand larceny, but remand the case for reconsideration
of the recidivist portion of his sentence.
When a criminal defendant proposes
to enter a plea of guilty, the trial judge should interrogate such defendant
on the record with regard to his intelligent understanding of the following
rights, some of which he will waive by pleading guilty: 1) the right to retain
counsel of his choice, and if indigent, the right to court appointed counsel;
2) the right to consult with counsel and
have counsel prepare the defense; 3) the right to a public trial by an impartial
jury of twelve persons; 4) the right to have the State prove its case beyond
a reasonable doubt and the right of the defendant to stand mute during the
proceedings; 5) the right to confront and cross-examine his accusers; 6) the
right to present witnesses in his own defense and to testify himself in his
own defense; 7) the right to appeal the conviction for any errors of law;
8) the right to move to suppress illegally obtained evidence and illegally
obtained confessions; and, 9) the right to challenge in the trial court and
on appeal all pre-trial proceedings.
We have carefully reviewed
the transcript of the hearing in which the appellant pled guilty to the recidivist
information. While the circuit judge did not methodically follow the litany
set forth in Call, the court's inquiry was thorough and leaves us with
no doubt (subject to one exception noted infra) that the appellant's
plea to the recidivist information was knowing and voluntary under the circumstances.
The appellant also asserts that the circuit court erroneously sentenced the appellant pursuant to W.Va. Code, 61-11-18 , which doubles the minimum term of an indeterminate sentence upon a recidivism conviction, as opposed to sentencing him pursuant to former W.Va. Code, 61-11-18 , which adds five years to the maximum term of an undeterminate sentence. New W.Va. Code, 61-11-18  became effective June 8, 2000. The offense for which the appellant was convicted occurred in February of 2000.
Syllabus Point 1, Adkins v. Bordenkircher, 164 W.Va. 292, 262 S.E.2d 885 (1980) states:
Under ex post facto principles of the United States and West Virginia Constitutions, a law passed after the commission of an offense which increases the punishment, lengthens the sentence or operates to the detriment of the accused, cannot be applied to him.
The State concedes that ex post facto principles require that any recidivist penalty for the defendant be based on the law in effect in February of 2000. Consequently, we must reverse that portion of the appellant's sentence that is based on the recidivism information, and remand for resentencing.
Additionally, because the
record does not disclose whether the appellant was possibly laboring under
a misapprehension as to the actual sentence he would receive by pleading guilty
to the recidivist information, we find that the trial court should permit
the appellant to withdraw his recidivist plea, if he so wishes.