Stanley M. Myers, Pro Se
Pamela Jean Games-Neely
Saint Marys Correctional Center Prosecuting Attorney
Saint Marys, West Virginia Christopher C. Quasebarth
Attorney for the Appellant Assistant Prosecuting Attorney
Martinsburg, West Virginia
Attorneys for the Appellee
JUSTICE DAVIS delivered the Opinion of the Court.
JUSTICES STARCHER and ALBRIGHT dissent and reserve the right to file dissenting opinions.
1. The Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands. Syllabus point 1, in part, State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997).
2. Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review. Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).
3. 'The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.' Syllabus Point 1, Smith v. State Workmen's Comp. Comm'r, 159 W. Va. 108, 219 S.E.2d 361 (1975). Syllabus point 2, Taylor v. Nationwide Mut. Ins. Co., 214 W. Va. 324, 589 S.E.2d 55 (2003).
4. 'Statutes in derogation of the common law are allowed effect only to the extent clearly indicated by the terms used. Nothing can be added otherwise than by necessary implication arising from such terms. Syllabus Point 3, Bank of Weston v. Thomas, 75 W. Va. 321, 83 S.E. 985 (1914).' Syllabus Point 6, City of Fairmont v. Retail, Wholesale, and Department Store Union, AFL-CIO, 166 W. Va. 1, 283 S.E.2d 589 (1980). Syllabus point 7, Teter v. Old Colony Co., 190 W. Va. 711, 441 S.E.2d 728 (1994).
5. 'Each word of a statute should be given some effect and a statute must be construed in accordance with the import of its language. Undefined words and terms used in a legislative enactment will be given their common, ordinary and accepted meaning.' Syllabus point 6, in part, State ex rel. Cohen v. Manchin, 175 W. Va. 525, 336 S.E.2d 171 (1984). Syllabus point 2, State v. Snodgrass, 207 W. Va. 631, 535 S.E.2d 475 (2000).
6. It is well established that the word 'shall,' in the absence of language in the statute showing a contrary intent on the part of the Legislature, should be afforded a mandatory connotation. Syllabus Point 1, Nelson v. West Virginia Public Employees Insurance Board, 171 W. Va. 445, 300 S.E.2d 86 (1982).
7. A criminal defendant may be assessed jury costs, pursuant to W. Va. Code § 52-1-17(c)(1) (2001) (Supp. 2003), that the state incurred in connection with a criminal proceeding that has been reversed on appeal, so long as the criminal defendant ultimately has been convicted in a reprosecution of the case, either by plea, bench trial, or jury.
8. A court order directing a convicted criminal defendant to pay costs
is sufficient to assess jury costs in compliance with the provision of W. Va. Code § 52-1-
17(c) (2001) (Supp. 2003) directing that a court order shall assess jury costs by specific
This case involves an order directing a criminal defendant to pay jury costs incurred in connection with a conviction that was subsequently reversed by this Court, when, on remand, the criminal defendant pled guilty to lesser offences involving the same criminal conduct. After a careful review of the record presented, the parties' briefs, and the relevant law, we find that the circuit court did not err in assessing the jury costs pursuant to W. Va. Code § 52-1-17(c)(1) (2001) (Supp. 2003). In addition, we find that the circuit court's order assessing costs was sufficiently specific under the requirements of § 52-1-17(c).
Mr. Myers petitioned this Court for an appeal of his conviction, but his petition
was denied. Thereafter, he instituted a civil habeas corpus action.
(See footnote 1)
The circuit court
ultimately denied habeas relief and Mr. Myers appealed. This Court accepted the appeal.
After finding, inter alia, that Mr. Myers received ineffective assistance of counsel during his
trial, we reversed his conviction and remanded the matter for a new trial.
(See footnote 2)
After remand, Mr.
Myers pled guilty to three counts of first degree sexual abuse, and one count of third degree
sexual assault. He was sentenced to four consecutive one to five year terms. In addition, Mr.
Myers was fined $8,000 and assessed costs. Mr. Myers requested a statement of his costs
from the circuit clerk and learned that an amount of $10,125.54 was included for the jury that
had participated in his initial trial; that is, the trial that had resulted in the conviction that was
later reversed by this Court. Mr. Myers then filed in the circuit court a motion to correct
judgment of costs. He also petitioned this Court for an appeal of the judgment of costs. By
order entered September 17, 2003, the circuit court granted Mr. Myers' motion to correct
judgment of costs. A typographical error was identified and the jury costs were reduced to
$1,012.54. Subsequently, we granted Mr. Myers petition for appeal on October 30, 2003,
and we now affirm the circuit court's assessment of costs.
W. Va. Code § 52-1-17(c)(1) states:
(c) Anytime a panel of prospective jurors has been required to report to court for the selection of a petit jury in any scheduled matter, the court shall, by specific provision in a court order, assess a jury cost. In circuit court cases the jury cost shall be the actual cost of the jurors' service, and in magistrate court cases, the jury cost assessed shall be two hundred dollars. Such costs shall be assessed against the parties as follows:
(1) In every criminal case, against the defendant upon conviction, whether by plea, by bench trial or by jury verdict;
Mr. Myers submits that, because W. Va. Code § 52-1-17(c)(1) directs assessment of jury costs against a criminal defendant upon conviction, he may not be assessed jury costs for a proceeding that was later reversed on appeal as it did not result in a conviction. Because W. Va. Code § 52-1-17(c)(1) does not expressly answer the question with which we are presented in this case, we must endeavor to interpret this statute. In so doing, we must strive to ascertain and give effect to the Legislature's intended purpose for its enactment, as '[t]he primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.' Syllabus Point 1, Smith v. State Workmen's Comp. Comm'r, 159 W. Va. 108, 219 S.E.2d 361 (1975). Syl. pt. 2, Taylor v. Nationwide Mut. Ins. Co., 214 W. Va. 324, 589 S.E.2d 55 (2003).
We have heretofore established that the assessment of costs is not for punitive
purposes. [C]osts are not punishment or part of the penalty for committing a crime. State
ex rel. Canterbury v. Paul, 205 W. Va. 665, 670, 520 S.E.2d 662, 667 (1999). See generally
24 C.J.S. Criminal Law § 1738 (1989) (Court costs are not fines, and therefore, the costs
of prosecution are purely compensatory, and not punitive. (footnotes omitted)).
Consequently, we deduce that the clear legislative intent of this statute is simply to require
one who is convicted of a crime to reimburse the State for the costs associated with a jury's
participation in the proceedings leading to his or her conviction. It is from this perspective
that we must interpret this statute to determine the extent to which the State should be
reimbursed for jury costs. At this stage of our analysis, we must be mindful that W. Va.
Code § 52-1-17(c)(1) is a statute in derogation of the common law.
(See footnote 5)
See, e.g., State v. St.
Clair, 177 W. Va. 629, 631, 355 S.E.2d 418, 420 (1987) (Allowance and recovery of costs
was unknown at common law, and therefore only costs specifically allowed by statute may
be recovered.). For this reason, it must be strictly construed.
'Statutes in derogation of the common law are allowed effect only to the extent clearly indicated by the terms used. Nothing can be added otherwise than by necessary implication arising from such terms.' Syllabus Point 3, Bank of Weston v. Thomas, 75 W. Va. 321, 83 S.E. 985 (1914). Syllabus Point 6, City of Fairmont v. Retail, Wholesale, and Department Store Union, AFL-CIO, 166 W. Va. 1, 283 S.E.2d 589 (1980).
Syl. pt. 7, Teter v. Old Colony Co., 190 W. Va. 711, 441 S.E.2d 728 (1994). See also Bice v. Boothsville Tel. Co., 62 W. Va. 521, 524, 59 S.E. 501, 502 (1907) (All costs are of statutory authorization, for the common law gave none in any case. . . . Statutes relating to costs must be strictly construed.).
Admittedly, few cases address the specific issue presented in this case. The theory advocated by Mr. Myers, though, does have some support. These cases reason that when a conviction is reversed, the conviction is nullified and the slate is wiped clean so no jury costs may be assessed, (See footnote 6) or that where the reversal is the result of misconduct on the part of the state, the defendant cannot be assessed costs. (See footnote 7) However, we do not find that the reasoning in these cases fulfills the legislative goal of requiring a convicted criminal to reimburse the State for the costs it has expended to provide him or her a jury. Moreover, to adopt such a view would require us to ignore portions of the language contained in § 52-2- 17(c), and this we cannot do.
Each word of a statute should be given some effect and a
statute must be construed in accordance with the import of its
language. Undefined words and terms used in a legislative
enactment will be given their common, ordinary and accepted
meaning. Syllabus point 6, in part, State ex rel. Cohen v.
Manchin, 175 W. Va. 525, 336 S.E.2d 171 (1984).
Syl. pt. 2, State v. Snodgrass, 207 W. Va. 631, 535 S.E.2d 475 (2000). W. Va. Code § 52-1- 17(c) states that [a]nytime a panel of prospective jurors has been required to report to court for the selection of a petit jury in any scheduled matter, the court shall, by specific provision in a court order, assess a jury cost. (Emphasis added). The common meaning of the term anytime is understood to be invariably; without doubt or exception; always. Random House Webster's Unabridged Dictionary 96 (2d ed.1998). Thus, the statute plainly seeks to reimburse the state for each reporting jury. We also find significant the fact that the court's duty to assess jury costs is mandatory, as evidenced by the use of the directive term shall. (See footnote 8) It is well established that the word 'shall,' in the absence of language in the statute showing a contrary intent on the part of the Legislature, should be afforded a mandatory connotation. Syl. pt. 1, Nelson v. West Virginia Public Employees Insurance Board, 171 W. Va. 445, 300 S.E.2d 86 (1982). Accord State v. Allen, 208 W. Va. 144, 153, 539 S.E.2d 87, 96 (1999) (Generally, 'shall' commands a mandatory connotation and denotes that the described behavior is directory, rather than discretionary. (citations omitted)). Nevertheless, Mr. Myers correctly notes that subsection (1) of § 52-1-17(c) instructs that in criminal cases, jury costs are assessed upon conviction, whether by plea, by bench trial or by jury verdict. Though Mr. Myers contends that this language limits the assessment of jury costs to only those proceedings immediately preceding the conviction, we disagree, as this language must be harmonized with the provisions of § 52-1-17(c) requiring the circuit courts to assess costs[a]nytime a panel of prospective jurors has been required to report to court . . . .
In searching for balance among these various statutory provisions, we find
persuasive the theory that jury costs for more than one criminal proceeding may be assessed
based upon the rationale that there is only one continuing prosecution. Under this theory, the
state is adequately reimbursed for all jury costs incurred in connection with a particular
instance of criminal conduct.
(See footnote 9)
For example, in State v. Cooley, No. 02-1448, 2003 WL
1530631 (Iowa Ct. App. March 26, 2003) (unpublished opinion),
(See footnote 10)
the defendant was tried
and convicted of third-degree burglary. He appealed the conviction and the Supreme Court
of Iowa reversed the conviction because the district court failed to inquire and advise [the
defendant] of the dangers of proceeding to trial pro se. Cooley at **1 (citing State v.
Cooley, 608 N.W.2d 9, 18 (Iowa 2000). On remand, the defendant entered a plea of guilty
to third-degree murder. Id. The defendant was then ordered to pay restitution, including
court costs and fees associated with his prosecution that had been reversed on appeal. Id.
The defendant appealed the order, challenging the amount of the restitution he was required
to pay, and claiming inter alia that he should not be assessed the fees and costs associated
with his first prosecution. Id. The Court of Appeals of Iowa concluded that the defendant
pled guilty to third-degree burglary based upon the same set of transactions and occurrences that had supported his initial conviction for third degree burglary, habitual offender. By pleading guilty to burglary after his conviction was reversed, [the defendant] admitted guilt. . . . [U]nder the circumstances presented in this case, we find no abuse of discretion by the district court in ordering restitution which included the costs of Cooley's initial conviction that was reversed.
Id., 2003 WL 1530631, at **2. (See footnote 11) We find similarly persuasive the line of cases allowing costs for more than one proceeding involving the same prosecution where there has been a mistrial. See State v. Buchanan, 78 Wash. App. 648, 898 P.2d 862, 864 (1995) (per curiam) (concluding that, where trial for second degree rape ended in mistrial and defendant then pled
guilty to fourth-degree assault, costs could be assessed for mistrial even though the guilty
plea was for a different offense, and explaining that the costs of the mistrial are part of the
prosecution of the defendant. So long as the charges in the trials are the same or based on
the same facts, the mistrial costs may properly be assessed when, as here, the applicable
statutes allow costs for 'prosecuting' a convicted defendant.); Nicholson v. State, 24 Wyo.
347, ___, 157 P. 1013, 1016 (1916) (applying, in a case where defendant was assessed costs
for both mistrial and subsequent trial resulting in conviction, a statute directing that [i]n all
cases of a conviction of an offense, the court shall render judgment against the defendant for
the costs of prosecution. Section 6034, Comp. Stat. 1910, and commenting that [i]t is the
general rule that when judgment is rendered against a party to an action after he has secured
a new trial on appeal he should be taxed with the costs of the trial court on the first trial as
well as on the second trial. . . . The reason for so doing is still stronger where there has been
a mistrial not resulting in a judgment. (citing Williams v. Hughes, 139 N.C. 17, 51 S.E. 790
(1905)). Cf State v. Foster, 301 N.W.2d 192, 196 (Wis. 1981) (When a defendant cancels
a jury trial at the eleventh hour to accept a plea negotiation offered by the state, he risks the
taxation of costs under 2. sec. 973.06, and the discretionary assessment of jury fees under sec.
Applying the foregoing reasoning to our statute, we hold that, a criminal
defendant may be assessed jury costs, pursuant to W. Va. Code § 52-1-17(c)(1) (2001) (Supp.
2003), that the state incurred in connection with a criminal proceeding that has been reversed
on appeal, so long as the criminal defendant ultimately has been convicted in a reprosecution
of the case, either by plea, bench trial, or jury.
Turning to the instant case, we conclude that the circuit court did not err in
assessing jury costs against Mr. Myers. Mr. Myers pled guilty in a reprosecution of his case
after his conviction had been reversed on appeal and remanded.
(See footnote 12)
Having determined that
the circuit court was within its authority to assess jury costs against Mr. Myers, we now must
determine whether the circuit court's order complied with the express provisions of W. Va.
Code § 52-1-17(c).
While we have never before addressed the specific question of whether an
order imposing costs was precise enough to fulfill the specific provision requirement of
W. Va. Code § 52-1-17(c), we have previously included jury costs within the general
meaning of costs in other contexts. For example, in King v. Ferguson, 198 W. Va. 307,
315, 480 S.E.2d 516, 524 (1996) (per curiam), this Court, concluded that a trial court had
properly assessed jury costs against a plaintiff under the authority of Rule 68(c) of the West
Virginia Rules of Civil Procedure, which refers merely to costs in providing that [i]f the
judgment finally obtained by the offeree is not more favorable than the offer, the offeree
must pay the costs incurred after the making of the offer. The same view of the term costs
had been adopted by numerous courts. See General Refractories Co. v. Federal Ins. Co., No.
CIV. A. 00-5508, 2001 WL 1580173 (E.D. Pa. Dec. 6, 2001) (unpublished opinion)
(Generally, the term 'court costs' encompasses those expenses incurred by a party which
have been taxed as costs by the court. Items that courts have held may be awarded as costs
include: docket fees, jury fees, photocopy costs, deposition costs, and the like. (emphasis
added) (citations omitted)); Weber v. Kessler, 179 Cal. Rptr. 299, 301, 126 Cal. App. 3d
1033, 1036 (1981) ([C]osts include, but are not limited to, expert witness and jury fees,
depositions, and expenses incurred in executing the judgment. (emphasis added)); Roget v.
Grand Pontiac, Inc., 5 P.3d 341, 348 (Colo. Ct. App. 1999) (Items that courts have held
may be awarded as costs include: docket fees, jury fees, photocopy costs, deposition costs,
mileage, parking, delivery, and long distance telephone charges. (emphasis added) (citations
omitted)); People v. White, 776 N.E.2d 836, 839 (Ill. App. Ct. 2002) (A 'cost' is a charge
or fee taxed by a court such as a filing fee, jury fee, courthouse fee, or reporter fee.
(emphasis added) (citation omitted)); State v. Powers, 690 N.E.2d 32, 34 (Ohio Ct. App.
1996) (Although there appears to be a dearth of case law interpreting these statutes, we find
that the legislature intended that costs of prosecution, including jury fees, can be assessed
against a defendant only if the state is successful. (emphasis added)). See Generally Black's
Law Dictionary 349-50 (7th ed. 1999) (defining costs in sense 2 as [t]he charges or fees
taxed by the court, such as filing fees, jury fees, courthouse fees, and reporter fees. -- Also
termed court costs. (first emphasis added)). But see Gantt v. State, 109 Md. App. 590, ___,
675 A.2d 581, 585 (1996) (The ordinary import of the term 'court costs' supports the
conclusion that jury costs are not 'court costs' under Rule 4-353. Jury costs are generally not
understood to be 'court costs,' and are usually not included within the costs imposed by
courts in civil and criminal cases.).
Based upon the foregoing, we hold that a court order directing a convicted criminal defendant to pay costs is sufficient to assess jury costs in compliance with the provision of W. Va. Code § 52-1-17(c) (2001) (Supp. 2003) directing that a court order shall assess jury costs by specific provision. Consequently, the circuit court's order in the instant case was sufficient to assess jury costs against Mr. Myers.
Pro se pleadings and motions are held to less stringent
standards than those drafted by lawyers. Haines v. Kerner, 404
U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972); Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir.), cert. denied, 439 U.S.
970, 99 S. Ct. 464, 58 L. Ed. 2d 431 (1978). Allegations,
however inartfully pleaded, are sufficient to call for an
opportunity to offer supporting evidence, unless it is 'beyond
doubt' that the claimant could prove no set of facts entitling
him to relief. Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079,
1081, 31 L. Ed. 2d 263, 268 (1972), quoting Conley v. Gibson,
355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80, 84 (1957).
James M.B. v. Carolyn M., 193 W. Va. 289, 294 n.9, 456 S.E.2d 16, 21 n.9 (1995). Mr. Myers' basis for asserting in his petition for appeal that his plea was not voluntary or informed reflect the same arguments and factual background he now raises to challenge the assessment of those costs as a matter of statutory interpretation. While Mr. Myers may have changed his argument to a degree that would not be acceptable had these documents been filed by a lawyer, we do not hold him to the same standard. Given the leniency granted to pro-se litigants, this Court finds that the arguments in Mr. Myers brief were adequately preserved in his petition for appeal.
In the discretion of the
court, and only when fairness and justice so require, a circuit court or magistrate
court may forego assessment of the jury fee, but shall set out the reasons
therefor in a written order: Provided, That a waiver of the assessment of a
jury fee in a case tried before a jury in magistrate court may only be permitted
after the circuit court, or the chief judge thereof, has reviewed the reasons
set forth in the order by the magistrate and has approved such waiver.