Monongalia County 15-F-11
Jordan Bennett, pro se, appeals the March 16, 2017, order of
the Circuit Court of Monongalia County denying his motion for
correction of sentence pursuant to Rule 35(a) of the West
Virginia Rules of Criminal Procedure. Respondent State of
West Virginia ("the State"), by counsel Robert L.
Hogan, filed an amended summary response in support of the
circuit court's order. Petitioner filed a reply.
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.
January 9, 2015, petitioner was indicted on ten counts of
second-degree sexual assault and one count of abduction. The
first three counts of second-degree sexual assault involved
victim T.M., while the remaining counts of second-degree
sexual assault and the count of abduction involved victim
L.W. Trial was scheduled to commence on November 17, 2015.
However, prior to November 17, 2015, petitioner and the State
agreed to sever the first three counts of the indictment and
proceed to trial only on the eight counts involving L.W.
November 17, 2015, after a jury was sworn, petitioner decided
to plead guilty to the eight counts involving L.W. Petitioner
made this decision without a plea offer from the State.
However, "[a]fter a discussion with [petitioner's]
counsel, " the circuit court allowed petitioner to
change his pleas. After petitioner's plea colloquy, the
circuit court permitted L.W. to testify and provide the
factual basis for petitioner's guilty pleas. L.W.
testified that on the morning of September 26, 2014, she went
for a jog along the "rail trail" in Morgantown,
West Virginia, with the Monongahela River on the left side of
her path. Shortly thereafter, petitioner came up behind L.W.
and spoke to her, at which time she smelled the odor of
alcohol. As L.W. continued with her jog, she testified that
petitioner grabbed her and a struggle ensured. Ultimately,
L.W. was overpowered by petitioner who punched and strangled
her and dragged her by the hair "across the path down
into the woods." L.W. testified that petitioner dragged
her down "a really steep hill" to a large black
pipe near the riverbank. Petitioner threatened to kill L.W.
if she did not crawl under the pipe.
under the pipe, petitioner removed his and L.W.'s
clothing and he sexually assaulted L.W. numerous times
vaginally, anally, and orally, as well as by digital
penetration. L.W. gave specific details regarding each of
these sexual assaults. During one of the assaults, petitioner
closed his eyes and L.W. considered whether she had the
strength to escape. However, given the steep incline, L.W.
testified that she did not believe that she had "enough
strength to beat [petitioner] up the
hill." L.W. testified that petitioner sexually
assaulted her for "[n]early two hours." L.W.
testified that petitioner's attack left her with
long-lasting effects such as a scar on her back and a fear of
walking outside which had been her "favorite
thing." After L.W.'s testimony, the circuit court
asked petitioner the following:
THE COURT: [Petitioner], in order for me to accept your
guilty pleas, I have to know that you are guilty. So[, ] what
[L.W.] said[, ] is that the truth?
[Petitioner]: Yes, ma'am.
THE COURT: So, in fact, you are guilty?
[Petitioner]: Yes, ma'am.
circuit court made findings of fact at the November 17, 2015,
plea hearing. The circuit court found that petitioner
received a copy of the indictment and went "over it with
his attorney." The circuit court noted that petitioner
understood that he could be ordered to serve his sentences
"one after the other." Furthermore, the circuit
court found that petitioner knowingly and intelligently
waived his constitutional rights and intelligently and
voluntarily entered guilty pleas to seven counts of
second-degree sexual assault and one count of abduction.
Finally, the circuit court found that, based on L.W.'s
testimony, "there is a factual basis for the
plea[s]." Accordingly, the circuit court accepted
petitioner's guilty pleas. At a January 11, 2016,
sentencing hearing, the circuit court sentenced petitioner to
seven terms of ten to twenty-five years of incarceration for
second-degree sexual assault and to one term of three to ten
years of incarceration for abduction. The circuit court
ordered that petitioner serve his sentences consecutively for
an aggregate term of seventy-three to 185 years of
incarceration. Petitioner did not appeal the circuit
court's January 12, 2016, sentencing order.
13, 2016, petitioner filed, pro se, a motion for correction
of sentence pursuant to Rule 35(a) of the West Virginia Rules
of Criminal Procedure. In the motion, petitioner argued that
several of the counts of the indictment violated double
jeopardy principles because his abduction of L.W. was merely
incidental to the commission of the sexual assaults and
because L.W.'s initial statement to police supported only
three of the seven sexual assault counts. With regard to the
other four sexual assault counts, petitioner argued that
"the State failed to meet its burden of proving separate
and distinct offenses." The circuit court denied
petitioner's motion for correction of sentence by order
entered March 16, 2017. The circuit court effectively ruled
that petitioner waived the double jeopardy arguments by
pleading guilty to the counts of the indictment involving
At no point prior to or at the entry of his plea[s] did
[petitioner] raise any objection to the charges alleged in
the indictment on constitutional grounds, or otherwise
register any objection to entry of his plea[s]. Furthermore,
at no point did [petitioner] indicate to the [c]ourt that the
entry of his plea[s] was in any way subject to the
constitutional objections now raised in [petitioner]'s
now appeals the circuit court's March 16, 2017, order
denying his Rule 35(a) motion for correction of sentence. In
syllabus point one of State v. Marcum, 238 W.Va. 26,