### STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

FILED State of West Virginia, Plaintiff Below, Respondent 

### March 23, 2018

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS vs) No. 17-0338 (Monongalia County 15-F-11) OF WEST VIRGINIA

Jordan Bennett, Defendant Below, Petitioner



### MEMORANDUM DECISION

Petitioner Jordan Bennett, pro se, appeals the March 16, 2017, orde r 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. 1 Petitioner filed a reply.

The Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21

of the Rules of A ppellate Procedure.

On 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 a ssault involved victim T.M., while the remaining counts of second-de gree 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 St ate agreed to sever the first three counts of the indictment and proceed to trial only on the eight counts involving L.W.

On November 17, 2015, after a jury was sworn, petitioner d ecided 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 cour t allowed petitioner to

1 This Court granted the State’s motion to file an amended summary response by order entered October 4, 2017.

1change his pleas. After petitioner’s plea colloquy, the circuit court permitted L.W. to testify and provide the factual basis for pe titioner’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 ther eafter, petitioner came up behind

L.W. and spoke to her, at which time she smelle d the odor of alcohol. As L.W. continued with her jog, she testified that petiti oner grabbed her and a struggle ensured. Ultimately, L.W. was overpowered by petitioner who punched and strangled her and dragge d her by the hair “across the path down into the woods.” L.W. testified that pe titioner dragged her down “a really steep hill” to a large black pipe near the riverb ank. Petitioner threatened to k ill L.W. if she did not crawl under the pipe.

Once under the pipe, petitioner removed his a nd L.W.’s clothing and he sexually assaulted

L.W. numerous times vaginally, anally, and orall y, as well as by digital penetration. L.W. gave specific details regarding each of these sexual a ssaults. During one of the assaults, petitioner closed his eyes and L.W. considered whether sh e had the strength to escap e. However, given the steep incline, L.W. testified that she did not believe that she had “enough strength to beat [petitioner] up the hill.” 2 L.W. testified that petitioner sexua lly 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 b een 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.

The 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 we nt “over it with his attorney.”

The circuit court noted th at petitioner understood that he coul d be ordered to serve his sentences “one after the other.” Furthermore, the circ uit 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 abduc tion. 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

2 Because petitioner challenges the legality of his abduction sentence based on double jeopardy grounds, infra , we note that the location and envir onment of the place the victim was

detained is a relevant factor in determining whether an abductio n is merely inci dental to the

commission of another offense. See State v. Lewis , 235 W.Va. 694, 702 n.20, 776 S.E.2d 591, 599

n.20 (2015).

2circuit 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. Petition er did not appeal the circuit court’s January 12, 2016, sentencing order.

On July 13, 2016, petitioner filed, pro se, a mo tion for correction of sentence pursuant to Rule 35(a) of the West Virginia Rules of Criminal Procedure. 3 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 sexua l assault counts. With regard to the other four sexual assault co unts, petitioner argued that “the State failed to meet its burden of proving separate and dist inct offenses.” The circuit cour t denied petitioner’s motion for correction of sentence by order entered March 16, 2017. The circui t court effectively ruled that petitioner waived the double jeopardy arguments by pleading guilty to the counts of the indictment involving L.W.:

At no point prior to or at the entry of hi s plea[s] did [petitione r] 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 [m]otion.

Petitioner now appeals the circuit court’ s March 16, 2017, order denying his Rule 35(a)

motion for correction of senten ce. In syllabus point one of State v. Marcum , 238 W.Va. 26, 792 S.E.2d 37 (2016), we set forth the pertinent standa rd of review:

“In reviewing the findings of fact and conclusions of law of a circuit court concerning an order on a moti on made under Rule 35 of the West Virginia Rules of Criminal Procedure, we apply a three-pr onged standard of review. We review the

decision on the Rule 35 motion under an abuse of discretion standard; the underlying facts are reviewed under a clearl y erroneous standard ; and questions of law and interpretations of statutes and rules are subject to a de novo review.” Syl. Pt. 1, State v. Head , 198 W.Va. 298, 480 S.E.2d 507 (1996).

The Double Jeopardy Clauses of the United Stat es and West Virginia Constitutions prohibit “multiple punishments for the same offense.” Syl. Pts 1 and 2, State v. Gill , 187 W.Va. 136, 416 S.E.2d 253 (1992). In syllabus point two of State v. Coles , 234 W.Va. 132, 763 S.E.2d 843 (2014),

we held as follows:

3 On May 5, 2016, petitioner’s attorney filed a motion for reconsideration of sentence pursuant to Rule 35(b) that request ed concurrent sentences for at l east some of his convictions. The Rule 35(b) motion remains pending before the circuit court.

3If a guilty plea is shown to have been intelligently and voluntarily entered into, generally it cannot be directly or collaterally attacked on double jeopardy grounds. One exception to this rule permits a defendant to show that the face of the

record in the case establishes that a cour t lacked power to convict or sentence the

defendant.

On appeal, petitioner concedes that, by inte lligently and voluntarily pleading guilty, he waived a wide array of constitutional rights. However, petitioner argues that he may still claim a violation of the constitutional prohibition against multiple punishments for the same offense because such a claim goes to the legality of certain sentences. See Syl. Pt. 1, State v. Sims , 162 W.Va. 212, 248 S.E.2d 834 (1978) (holding that a guilt y plea does not preclude a challenge to a sentence’s legality). The State counters that th e circuit court properly de nied petitioner’s motion for correction of sentence because the time for him to challenge the factual basis of his guilty pleas was at the November 17, 2015, plea hearing and he faile d to do so. We agree with the State. At the plea hearing, L.W. provided the factual basis for petitioner’s guilty pleas. The circuit court asked petitioner if L.W.’s testimony was the truth and pe titioner answered, “yes, ma’am.” Therefore, we

find that the record establishes that the circuit court possessed th e power to convict and sentence the defendant on all eight counts for which he pl ed guilty. Accordingly, we conclude that the

circuit court did not abuse its discre tion in denying petitioner’s motion fo r correction of sentence.

For the foregoing reasons, we affirm the circuit court’s March 16, 2017, order denying his Rule 35(a) motion for co rrection of sentence. 4

Affirmed.

ISSUED : March 23, 2018

CONCURRED IN BY :

Chief Justice Margaret L. Workman

Justice Robin Jean Davis

Justice Menis E. Ketchum Justice Allen H. Loughry II

Justice Elizabeth D. Walker

4 For the first time on appeal, petitioner argues that the charges involvi ng the other victim T.M., which remain pending in the circuit court, should be dismissed with prejudice because he has not been brought to trial on those charges within three terms of court. See Syl., State v. Carter

, 204 W.Va. 491, 513 S.E.2d 718 (1998). The State counters that the ch arges involving T.M. are not currently before this Court becau se petitioner failed to ask the ci rcuit court for relief regarding those charges in his motion. We agree with th e State and decline to address that issue. See Syl. Pt. 2, Sands v. Sec. Trust Co. , 143 W.Va. 522, 102 S.E.2d 733 (1958) (hol ding that “[t]his Court will not pass on a non[-]jurisdictional question which has not been decided by the trial court in the first instance).

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