State v. McGilton

729 S.E.2d 876, 229 W. Va. 554, 2012 WL 2368894, 2012 W. Va. LEXIS 319
CourtWest Virginia Supreme Court
DecidedJune 19, 2012
DocketNo. 11-0410
StatusPublished
Cited by37 cases

This text of 729 S.E.2d 876 (State v. McGilton) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. McGilton, 729 S.E.2d 876, 229 W. Va. 554, 2012 WL 2368894, 2012 W. Va. LEXIS 319 (W. Va. 2012).

Opinions

WORKMAN, Justice:

This case is before this Court upon appeal of a final order of the Circuit Court of Ohio County entered on January 12,2011. In that order, the petitioner, Brent Levi Victor McGilton, was convicted by a jury of three counts of malicious assault against his wife, Angela McGilton (hereinafter, “the victim”). In this appeal, the petitioner argues that the circuit court violated his double jeopardy protections by sentencing him for three counts of malicious assault for three wounds caused during the same course of conduct. The petitioner was sentenced to two to ten years on the first count of malicious assault, two to ten years on the second count of malicious assault, and four to ten years on the third count of malicious assault. Based upon the parties’ briefs and arguments in this proceeding, as well as the relevant statutory and ease law, this Court is of the opinion that the circuit court did not commit reversible error and, accordingly, affirms the decision below.

I.

FACTS

On November 22, 2009, the petitioner stabbed his wife numerous times during an argument in their home. She was stabbed twice in the neck, multiple times in the back of her head, once in the ankle, and once in the back of her leg. The victim said that while the petitioner was stabbing her, he stated that he was “going to fu*king kill [her].” The victim managed to escape, get to the bathroom, and call 911.

Officer Kenneth Parker of the Wheeling Police Department was just a few blocks [557]*557away when he received the call from dispatch notifying him of the stabbing. He stated that he arrived at the scene of the crime in less than one minute. Officer Parker testified that the petitioner was arrested after a failed attempt to escape. The victim was then taken to the hospital for treatment of her injuries. Thereafter, she returned to her home and went to sleep. When she awakened, the petitioner had been released from police custody and was standing at the foot of her bed. He once again threatened to kill her stating that “he didn’t want to go back to jail [and] if he was to go to jail, ... he would do it right next time and he would go to Iowa.”1

In January of 2010, the petitioner was indicted on three counts of malicious assault and one count of assault during commission of a felony. On June 22, 2010, the petitioner’s trial began. During pre-trial motions, counsel for the petitioner moved for dismissal of the charge of assault during commission of a felony based upon double jeopardy grounds; he did not raise any double jeopardy arguments regarding the three separate counts of malicious assault. The circuit court dismissed the assault during commission of a felony count and the case proceeded on the three charges of malicious assault. On June 23, 2010, the petitioner was found guilty of all three counts of malicious assault.

On August 2, 2010, prior to his sentencing hearing, a recidivist trial was held wherein a jury found the petitioner to be the same person convicted of the felony of wanton endangerment on April 21, 2005. In consideration of his prior conviction, one of the malicious assault sentences was later enhanced by doubling the minimum sentence.2 On January 12, 2011, the petitioner was sentenced to two to ten years on the first count of malicious assault, two to ten years on the second count of malicious assault, and four to ten years on the third count of malicious assault. This appeal followed.

II.

STANDARD OF REVIEW

The petitioner argues that the circuit court violated his double jeopardy protections by sentencing him for three counts of malicious assault for three wounds caused during the same course of conduct. This Court has explained that “[A] double jeopardy claim [is] reviewed de novo.” Syllabus Point 1, in part, State v. Sears, 196 W.Va. 71, 468 S.E.2d 324 (1996). With this standard in mind, this Court will consider the petitioner’s argument.

III.

DISCUSSION

At the outset, this Court must first consider whether the petitioner’s double jeopardy argument has been properly preserved below. The petitioner argues that regardless of whether the issue was properly raised below, double jeopardy issues arising from an illegal sentence can be raised at any time pursuant to W.Va. R. Crim.P. Rule 35(a), which provides that: “The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time period provided herein for the reduction of sentence.” He then [558]*558contends that irrespective of Rule 35(a), the circuit court’s error qualifies as “plain error.” This Court has said that plain error is defined as “(1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Syllabus Point 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). The petitioner argues that the error in this case is plain, affected his substantial rights, and seriously affected the fairness, integrity, and public reputation of the judicial proceedings.

Conversely, the State contends that the petitioner waived this argument because he raises it for the first time on appeal. The State maintains that the United States Supreme Court has recognized that defendants may waive several fundamental constitutional rights, including double jeopardy, by failing to preserve the issue for appeal.3 Finally, the State argues that because there was no error below, the plain error doctrine is inapplicable and the petitioner’s convictions for all three offenses should be affirmed.

In State v. LaRock, 196 W.Va. 294, 316, 470 S.E.2d 613, 635 (1996), this Court explained as follows:

Our cases consistently have demonstrated that, in general, the law ministers to the vigilant, not to those who sleep on their rights---- When a litigant deems himself or herself aggrieved by what he or she considers to be an important occurrence in the course of a trial or an erroneous ruling by a trial court, he or she ordinarily must object then and there or forfeit any right to complain at a later time. The pedigree for this rule is of ancient vintage, and it is premised on the notion that calling an error to the trial court’s attention affords an opportunity to correct the problem before irreparable harm occurs.

This Court in LaRock further explained:

There is also an equally salutary justification for the raise or waive rule: It prevents a party from making a tactical decision to refrain from objecting and, subsequently, should the case turn sour, assigning error (or even worse, planting an error and nurturing the seed as a guarantee against a bad result). In the end, the contemporaneous objection requirement serves an important purpose in promoting the balanced and orderly functioning of our adversarial system of justice.

Id. at 316, 470 S.E.2d at 635. The LaRock Court further explained that: “One of the most familiar procedural rubrics in the administration of justice is the rule that the failure of a litigant to assert a right in the trial court likely will result in the imposition of a procedural bar to an appeal of that issue.” Id. (internal quotations and citations omitted). See also Powderidge Unit Owners Ass’n v. Highland Props., Ltd., 196 W.Va.

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Cite This Page — Counsel Stack

Bluebook (online)
729 S.E.2d 876, 229 W. Va. 554, 2012 WL 2368894, 2012 W. Va. LEXIS 319, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcgilton-wva-2012.