James Cross Jr., by counsel Douglas F. Kobayashi, appeals the
Circuit Court of Berkeley County's October 27, 2016,
order denying his amended petition for writ of habeas corpus.
Respondent Karen Pszczolkowski, Warden of Northern
Correctional Facility, by counsel Cheryl K. Saville, filed a
response and supplemental appendix. Petitioner filed a reply.
Following appointment of counsel to assist with his appeal,
petitioner filed a supplemental brief, and respondent filed a
supplemental response. On appeal, petitioner argues that his
recidivist life sentence is void due to the circuit
court's failure to "duly caution" him in
accordance with West Virginia Code § 61-11-19.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
of 2012, petitioner was convicted of second-degree murder,
attempted second-degree murder, and malicious assault.
Following these convictions, the State filed a recidivist
information seeking to enhance petitioner's malicious
assault sentence to a life sentenced based upon two prior
separate felony convictions.
August 27, 2012, petitioner was arraigned on the recidivist
information. At his arraignment, the following exchange
THE COURT: I then received - so with the motion denied, the
State has filed an information -
MR. PREZIOSO [petitioner's trial counsel]: That's
THE COURT: - charging your client with having been twice
convicted previously with a felony prior to this conviction,
therefore, they intend to request that sentencing be done as
a recidivist exposing him to life imprisonment. Have you had
a chance to review that with your client?
MR. PREZIOSO: Yes, Your Honor. I've received a copy of
it. I sent a copy of it to my client. I've reviewed it
with my client. I spoke to him at length and we had a lot
prepared for sentencing today but I'm assuming the
[c]ourt is going to probably defer until after recidivist.
We are remaining silent. We are not - I've reviewed the
information with him. We waive reading in open court but we
are remaining silent pursuant to 61-11-19 and ask that a jury
trial be set.
THE COURT: Mr. Cross, your attorney indicates that he has
reviewed with you the recidivist information filed by the
State alleging that you were twice before convicted of a
felony offense prior to this felony conviction. As Mr.
Prezioso pointed out, you can remain silent in the matter but
the law requires that I inquire of you as to whether or not
you are, in fact, the same individual that was named in the
MR. PREZIOSO: Your Honor, he's going to remain silent.
THE COURT: Okay. That's kind of funny under the law we
say you remain silent but you have ...