Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cross v. Pszczolkowski

Supreme Court of West Virginia

March 12, 2018

James Cross Jr., Petitioner Below, Petitioner
v.
Karen Pszczolkowski, Warden, Northern Correctional Facility, Respondent Below, Respondent

         (Berkeley County 15-C-534)

          MEMORANDUM DECISION

         Petitioner 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.

         This 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.

         In June 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.

         On August 27, 2012, petitioner was arraigned on the recidivist information. At his arraignment, the following exchange occurred:

THE COURT: I then received - so with the motion denied, the State has filed an information -
MR. PREZIOSO [petitioner's trial counsel]: That's correct judge.
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 information.
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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.