Tony T. Gerlach v. David Ballard

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2013 Term

FILED

October 28, 2013

No. 12-0609 released at 3:00 p.m.

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

TONY T. GERLACH,

Petitioner Below, Petitioner

v.

DAVID BALLARD, WARDEN,

Respondent Below, Respondent

Appeal from the Circuit Court of Cabell County

Honorable Alfred E. Ferguson, Judge

Civil Action No. 04-C-99

AFFIRMED

Submitted: October 1, 2013

Filed: October 28, 2013

Dennis E. Kelley, Esq. Patrick Morrisey, Esq.

Huntington, West Virginia Attorney General

and Scott E. Johnson, Esq.

Donald R. Jarrell, Esq. Senior Assistant Attorney General

Wayne, West Virginia Thomas W. Rodd, Esq.

Attorneys for Petitioner Assistant Attorney General

Charleston, West Virginia

Attorneys for Respondent

JUSTICE LOUGHRY delivered the Opinion of the Court.

SYLLABUS BY THE COURT

1. “In reviewing challenges to the findings and conclusions of the circuit

court in a habeas corpus action, we apply a three-prong standard of review. We review the

final order and the ultimate disposition under an abuse of discretion standard; the underlying

factual findings under a clearly erroneous standard; and questions of law are subject to a de

novo review.” Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

2. “The Double Jeopardy Clause of the Fifth Amendment to the United

States Constitution consists of three separate constitutional protections. It protects against

a second prosecution for the same offense after acquittal. It protects against a second

prosecution for the same offense after conviction. And it protects against multiple

punishments for the same offense.” Syl. Pt. 1, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253

(1992).

3. “The Double Jeopardy Clause in Article III, Section 5 of the West

Virginia Constitution, provides immunity from further prosecution where a court having

jurisdiction has acquitted the accused. It protects against a second prosecution for the same

offense after conviction. It also prohibits multiple punishments for the same offense.” Syl.

Pt. 1, Conner v. Griffith, 160 W.Va. 680, 238 S.E.2d 529 (1977).

i

4. “A claim that double jeopardy has been violated based on multiple

punishments imposed after a single trial is resolved by determining the legislative intent as

to punishment.” Syl. Pt. 7, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).

5. “The purpose of the Double Jeopardy Clause is to ensure that sentencing

courts do not exceed, by the device of multiple punishments, the limits prescribed by the

legislative branch of government, in which lies the substantive power to define crimes and

prescribe punishments.” Syl. Pt. 3, State v. Sears, 196 W.Va. 71, 468 S.E.2d 324 (1996).

6. “In ascertaining legislative intent, a court should look initially at the

language of the involved statutes and, if necessary, the legislative history to determine if the

legislature has made a clear expression of its intention to aggregate sentences for related

crimes. If no such clear legislative intent can be discerned, then the court should analyze the

statutes under the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180,

76 L.Ed. 306 (1932), to determine whether each offense requires an element of proof the

other does not. If there is an element of proof that is different, then the presumption is that

the legislature intended to create separate offenses.” Syl. Pt. 8, State v. Gill, 187 W.Va. 136,

416 S.E.2d 253 (1992).

7. “It is always presumed that the legislature will not enact a meaningless

or useless statute.” Syl. Pt. 4, Hardesty v. Aracoma-Chief Logan No. 4523, Veterans of

Foreign Wars of the United States, Inc., 147 W.Va. 645, 129 S.E.2d 921 (1963).

ii

8. “A statute should be so read and applied as to make it accord with the

spirit, purposes and objects of the general system of law of which it is intended to form a

part; it being presumed that the legislators who drafted and passed it were familiar with all

existing law, applicable to the subject matter, whether constitutional, statutory or common,

and intended the statute to harmonize completely with the same and aid in the effectuation

of the general purpose and design thereof, if its terms are consistent therewith.” Syl. Pt. 5,

State v. Snyder, 64 W.Va. 659, 63 S.E. 385 (1908).

9. Separate convictions for second degree murder and death of a child by

a parent, guardian or custodian by child abuse, although arising from the same act, do not

constitute the same offense for purposes of the Double Jeopardy Clause of the West Virginia

Constitution.

10. “‘Where the same act or transaction constitutes a violation of two

distinct statutory provisions, the test to be applied to determine whether there are two

offenses or only one, is whether each provision requires proof of a fact which the other does

not.’ Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309

(1932).” Syl. Pt. 4, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).

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iv

LOUGHRY, Justice:

The petitioner, Tony T. Gerlach, appeals the April 17, 2012, order of the

Circuit Court of Cabell County denying his petition for a writ of habeas corpus. The

petitioner was convicted on March 25, 1998, of one count of second degree murder and one

count of death of a child by a parent, guardian or custodian. He was sentenced to forty years

of imprisonment for each conviction, and it was ordered that the sentences be served

consecutively. While the petitioner asserted several grounds for relief in his petition for a

writ of habeas corpus,1 his only assignment of error in this appeal concerns his claim that he

has been punished twice for the same offense and, thus, placed in double jeopardy. Upon

consideration of the parties’ briefs, oral argument and submitted record, as well as the

applicable statutory and case law, this Court finds no merit to the petitioner’s argument and

affirms the final order of the circuit court.

I. Factual and Procedural Background

1

In his habeas petition, the petitioner also asserted that he suffered unfair pre-trial

publicity; that the prosecution suppressed helpful evidence; that the prosecution knowingly

used perjured testimony and made unfairly prejudicial statements; and that his sentences

were excessive. The circuit court found no merit to these claims.

1

On September 19, 1996, three-year-old A.C.2 was left in the care of the

petitioner, by her mother, S.C., while she attended evening classes at Marshall University,

in Huntington, West Virginia.3 Approximately one hour after S.C. left, the petitioner called

911 and reported that A.C. was choking and could not breathe. When emergency personnel

arrived, A.C. had no pulse and was not breathing. A.C. was transported to the hospital where

medical tests revealed subarachnoid hemorraghing through the inter-hemispheric fissure of

her brain and cerebral edema or swelling. A.C. died two days later when life support was

removed.

Subsequently, the petitioner was indicted for the offenses of murder and death

of a child by a parent, guardian or custodian. At the petitioner’s trial, the evidence showed

that A.C. suffered at least five severe blows to the head and lost consciousness while she was

in the petitioner’s sole care. There was also evidence presented that A.C. had previously

displayed fear of the petitioner and symptoms of abuse. Forensic evidence refuted the

petitioner’s claim that A.C. had choked.

2

Because the victim was a child, we follow our customary practice for cases involving

minors and sensitive facts and use initials to identify her and her mother. See In re Cesar L.,

221 W.Va. 249, 252 n.1, 654 S.E.2d 373, 376 n.1 (2007); see also R.A.P. 40(e)(1).

3

The petitioner was S.C.’s boyfriend; the couple resided together.

2

As set forth above, the petitioner was convicted of the offenses of second

degree murder and death of a child by a parent, guardian or custodian by child abuse. He

filed an amended petition for a writ of habeas corpus on November 4, 2011. The petition was

denied on April 17, 2012, and this appeal followed.

II. Standard of Review

The applicable standard of review for a decision of a circuit court granting or

denying habeas corpus relief was set forth in syllabus point one of Mathena v. Haines, 219

W.Va. 417, 633 S.E.2d 771 (2006), as follows:

In reviewing challenges to the findings and conclusions

of the circuit court in a habeas corpus action, we apply a

three-prong standard of review. We review the final order and

the ultimate disposition under an abuse of discretion standard;

the underlying factual findings under a clearly erroneous

standard; and questions of law are subject to a de novo review.

With this standard in mind, we consider the parties’ arguments.

II. Discussion

The only issue in this appeal is whether the petitioner ’s convictions for second

degree murder pursuant to West Virginia Code § 61-2-1 (2010)4 and death of a child by a

4

West Virginia Code § 61-2-1 states, in pertinent part:

Murder by poison, lying in wait, imprisonment, starving,

or by any willful, deliberate and premeditated killing, or in the

commission of, or attempt to commit, arson, kidnapping, sexual

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parent, guardian or custodian pursuant to West Virginia Code § 61-8D-2a(a) (2010)5 violate

the proscription against double jeopardy. We have explained that

[t]he Double Jeopardy Clause of the Fifth Amendment to the

United States Constitution consists of three separate

constitutional protections. It protects against a second

prosecution for the same offense after acquittal. It protects

against a second prosecution for the same offense after

conviction. And it protects against multiple punishments for the

same offense.

Syl. Pt. 1, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992). Likewise,

[t]he Double Jeopardy Clause in Article III, Section 5 of the

West Virginia Constitution, provides immunity from further

prosecution where a court having jurisdiction has acquitted the

accused. It protects against a second prosecution for the same

offense after conviction. It also prohibits multiple punishments

for the same offense.

Syl. Pt. 1, Conner v. Griffith, 160 W.Va. 680, 238 S.E.2d 529 (1977).

assault, robbery, burglary, breaking and entering, escape from

lawful custody, or a felony offense of manufacturing or

delivering a controlled substance as defined in article four [§§

60A-4-401 et seq.], chapter sixty-a of this code, is murder of the

first degree. All other murder is murder of the second degree.

5

West Virginia Code § 61-8D-2a(a) provides:

If any parent, guardian or custodian shall maliciously and

intentionally inflict upon a child under his or her care, custody

or control substantial physical pain, illness or any impairment of

physical condition by other than accidental means, thereby

causing the death of such child, then such parent, guardian or

custodian shall be guilty of a felony.

4

The petitioner’s argument is based on the prohibition against multiple

punishments for the same offense. This Court has held that “[a] claim that double jeopardy

has been violated based on multiple punishments imposed after a single trial is resolved by

determining the legislative intent as to punishment.” Syl. Pt. 7, Gill. Legislative intent is

the determinative factor because “[t]he purpose of the Double Jeopardy Clause is to ensure

that sentencing courts do not exceed, by the device of multiple punishments, the limits

prescribed by the legislative branch of government, in which lies the substantive power to

define crimes and prescribe punishments.” Syl. Pt. 3, State v. Sears, 196 W.Va. 71, 468

S.E.2d 324 (1996). If legislative intent cannot be determined, however, then it is necessary

to proceed to application of the test set forth in Blockburger v. United States, 284 U.S. 299

(1932). In that regard, this Court stated in syllabus point eight of Gill:

In ascertaining legislative intent, a court should look

initially at the language of the involved statutes and, if

necessary, the legislative history to determine if the legislature

has made a clear expression of its intention to aggregate

sentences for related crimes. If no such clear legislative intent

can be discerned, then the court should analyze the statutes

under the test set forth in Blockburger v. United States, 284 U.S.

299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to determine whether

each offense requires an element of proof the other does not. If

there is an element of proof that is different, then the

presumption is that the legislature intended to create separate

offenses.

A. Legislative Intent

5

In accordance with Gill, the starting point of our analysis is consideration of

the language of the statutes at issue and their legislative history to ascertain legislative intent.

In other words, we look to determine whether the Legislature intended for persons to be

charged and convicted of both second degree murder and death of a child by a parent,

guardian or custodian for a single act resulting in the death of a child.

The petitioner argues that if the Legislature had intended to permit convictions

under both statutes, it would have clearly specified that these offenses were separate and

distinct for purposes of punishment as it did with the offenses of sexual abuse and sexual

abuse by a parent, guardian or custodian. See W.Va. Code § 61-8D-5 (2010) (stating that

“[i]n addition to any other offenses set forth in this code, the Legislature hereby declares a

separate and distinct offense under this subsection”). The petitioner also asserts that further

evidence that the Legislature did not intend for an accused to be subject to multiple

punishments for the death of a child by child abuse is the fact that the Legislature prescribed

equal penalties under both statutes. Because the penalty for a conviction of second degree

murder or a conviction of death of a child by a parent, guardian or custodian is a ten-to-forty

year sentence,6 the petitioner maintains that the offenses are equivalent alternatives to each

6

West Virginia Code § 61-2-3 (2010) states: “Murder in the second degree shall be

punished by a definite term of imprisonment in the penitentiary which is not less than ten nor

more than forty years.” West Virginia Code § 61-8D-2a(c) provides, in pertinent part: “Any

person convicted of a felony described in subsection (a) or (b) of this section shall be

punished by a definite term of imprisonment in the penitentiary which is not less than ten nor

more than forty years.”

6

other. Finally, the petitioner contends that the disparity in the double sentences imposed here

compared to the “enhanced punishments” against parents, guardians and custodians

elsewhere in the West Virginia Code shows that the Legislature did not intend for these

charges to be imposed together and punished consecutively. In support of this argument, the

petitioner points out that a person convicted of first degree sexual assault and sexual abuse

by a parent, custodian or guardian is subject to sentences of imprisonment of fifteen-to-

thirty-five years7 and ten-to-twenty years,8 respectively. Yet, in the petitioner’s case, a

person convicted of second degree murder and death of a child by a parent, guardian or

custodian faces ten-to-forty years of imprisonment for each conviction, which results in

punishment enhanced by a factor of one hundred percent. For these reasons, the petitioner

contends that the Legislature clearly did not intend for a person found to have caused the

death of a child by child abuse to be convicted of both second degree murder and the offense

of death of a child by a parent, guardian or custodian.

In contrast, the State argues that the Legislature clearly intended to allow a

person found to have caused the death of a child by child abuse to be convicted and

sentenced under both West Virginia Code § 61-2-1 and West Virginia Code § 61-8D-2a. The

7

See W.Va. Code § 61-8B-3(b) (2010) (providing fifteen-to-thirty-five year sentence

for conviction of first-degree sexual assault).

8

See W.Va. Code § 61-8D-5(a) (2010) (providing ten-to-twenty year sentence for

conviction of sexual abuse by parent, guardian, custodian or person in position of trust).

7

State contends that if the Legislature had intended for death of a child by a parent, guardian

or custodian by child abuse to constitute second degree murder, it would have so specified

as it did with respect to W.Va. Code § 61-8D-2(a), which provides:

If any parent, guardian or custodian shall maliciously and

intentionally cause the death of a child under his or her care,

custody or control by his or her failure or refusal to supply such

child with necessary food, clothing, shelter or medical care, then

such parent, guardian or custodian shall be guilty of murder in

the first degree.

Id. (emphasis added). Because the Legislature did not make the same designation with

regard to second degree murder and death of a child by a parent, guardian or custodian by

child abuse, the State reasons that the Legislature created a separate offense with a separate

punishment when it enacted West Virginia Code § 61-8D-2a(a). We agree.

“It is always presumed that the legislature will not enact a meaningless or

useless statute.” Syl. Pt. 4, Hardesty v. Aracoma-Chief Logan No. 4523, Veterans of Foreign

Wars of the United States, Inc., 147 W.Va. 645, 129 S.E.2d 921 (1963). Therefore, “our

rules of statutory construction require us to give meaning to all provisions in a statutory

scheme[.]” Community Antenna Serv., Inc. v. Charter Communications VI, LLC, 227 W.Va.

595, 604, 712 S.E.2d 504, 513 (2011). To that end, this Court has held:

A statute should be so read and applied as to make it

accord with the spirit, purposes and objects of the general

system of law of which it is intended to form a part; it being

presumed that the legislators who drafted and passed it were

familiar with all existing law, applicable to the subject matter,

whether constitutional, statutory or common, and intended the

8

statute to harmonize completely with the same and aid in the

effectuation of the general purpose and design thereof, if its

terms are consistent therewith.

Syl. Pt. 5, State v. Snyder, 64 W.Va. 659, 63 S.E. 385 (1908).

The offense of murder has always been a part of our jurisprudence. Initially,

“[a]t common law, murder was defined as the unlawful killing of another human being with

‘malice aforethought.’” State v. Guthrie, 194 W.Va. 657, 673, 461 S.E.2d 163, 179 (1995).

In 1868, the West Virginia Legislature adopted the Virginia murder statute. The language

of that statute is identical to that of our present murder statute, West Virginia Code § 61-2-1.

Obviously, a person who committed the act of child abuse and thereby caused the death of

a child has always been subject to a murder conviction pursuant to West Virginia Code § 61-

2-1. Despite that fact, the Legislature chose to enact West Virginia Code § 61-8D-2a(a) in

1994, and deem the offense specified therein a felony subject to a penalty of imprisonment

of “not less then ten nor more forty years.” W.Va. Code § 61-8D-2a(c). If the Legislature

did not intend to create a separate offense with a separate punishment, there would have been

no need to enact this statute. The statute would be meaningless and useless, especially given

the fact that the penalty imposed is the same as that for second degree murder.

Contrary to the petitioner’s assertion, we find the fact that the prescribed

penalties under both statutes are identical indicates the Legislature intended the offenses to

be separate and distinct. If the penalty for the offense of death of a child by a parent,

9

guardian or custodian was greater than the penalty for second degree murder, it might be

arguably concluded that West Virginia Code § 61-8D-2a was enacted to impose a harsher

penalty for the death of child caused by child abuse. In this instance, however, the penalty

is the same. Therefore, with regard to the offense of death of a child by a parent, guardian

or custodian by child abuse, we find that the Legislature, with the purpose of protecting the

youngest and most vulnerable members of our society–children–created a separate offense

with a separate punishment when it enacted West Virginia Code § 61-8D-2a. Accordingly,

we now hold that separate convictions for second degree murder and death of a child by a

parent, guardian or custodian by child abuse, although arising from the same act, do not

constitute the same offense for purposes of the Double Jeopardy Clause of the West Virginia

Constitution.

B. The Blockburger Test

While we find the legislative intent in this instance is clear and that no double

jeopardy violation has occurred, we nonetheless observe that the same result is reached

utilizing the Blockburger test. In syllabus point four of Gill, we set forth the Blockburger test

as follows:

‘Where the same act or transaction constitutes a violation

of two distinct statutory provisions, the test to be applied to

determine whether there are two offenses or only one, is whether

each provision requires proof of a fact which the other does not.’

Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180,

182, 76 L.Ed. 306, 309 (1932).

10

187 W.Va. at 138, 416 S.E.2d at 255. Application of the test in this instance shows that the

offenses of second degree murder and death of a child by a parent, guardian or custodian by

child abuse each require proof of an element that the other does not.

The petitioner has conceded that West Virginia Code § 61-8D-2a(a) contains

an additional element not present in West Virginia Code § 61-2-1, which is that the person

who caused the death was a parent, guardian or custodian.9 The petitioner argues, however,

that all the elements required to prove second degree murder are contained within the offense

of death of a child by a parent, guardian or custodian by child abuse. The petitioner’s

argument is based upon his contention that second degree murder is established by proving

an intent to harm, which he says is the same intent that must be proven to establish the

offense of death of a child by a parent, guardian or custodian by child abuse.

In response, the State argues that an element of second degree murder is the

intent to kill, and therefore, each offense does require proof of a fact that the other does not,

satisfying the Blockburger test. In making this assertion, the State relies upon State v.

Hatfield, 169 W.Va.191, 286 S.E.2d 402 (1982), wherein this Court stated:

It is clear, however, that the intent to kill or malice is a required

element of both first and second degree murder but the

9

We note also that there are the additional elements that death must have been the

result of child abuse and the victim must be a child.

11

distinguishing feature for first degree murder is the existence of

premeditation and deliberation.

Id. at 198, 286 S.E.2d at 407-08. At the same time, the State acknowledges that some of this

Court’s prior cases have indicated that intent to kill is not an element of second degree

murder. See, e.g., State v. Hertzog, 55 W.Va. 74, 80, 46 S.E. 792, 794 (1904) (“[T]he

distinctive element in willful, deliberate, and premeditated murder, not in murder of the

second degree, is the specific intention to take life[.]”); State v. Dodds, 54 W.Va. 289, 299,

46 S.E. 228, 232 (1903) (“Wherever, then in cases of deliberate homicide, there is a specific

intention to take life, the offense, if consummated, is murder in the first degree; if there is not

a specific intention to take life, it is murder in the second degree.”).

In Guthrie, this Court acknowledged the inconsistency in this Court’s prior

cases discussing the distinction between first and second degree murder and was “compelled

. . . to make the dichotomy meaningful by making some modifications to our homicide

common law.” Id. at 675, 461 S.E.2d at 181. The confusion stemmed from attempts to

explain the meaning of the terms deliberation and premeditation as they pertain to first

degree murder. Those terms are not defined by our murder statute.10 As we have explained,

“W.Va.Code, 61-2-1, was not designed primarily to define the substantive elements of the

particular types of first degree murder, but rather was enacted to categorize the common law

crimes of murder for the purpose of setting degrees of punishment.” Syl. Pt. 5, State v. Sims,

10

See note 4, supra.

12

162 W.Va. 212, 248 S.E.2d 834 (1978); see also State v. Starkey, 161 W.Va. 517, 523, 244

S.E.2d 219, 223 (1978) (recognizing that “our murder statute is not designed to cover all the

essential elements of murder”). As such, this Court has been repeatedly called upon to

articulate the difference between first and second degree murder. In making this distinction,

in some prior cases, premeditation became equated with the intent to kill.

To clarify the difference between the degrees of murder, Justice Cleckley,

writing on behalf of the Court, explained in Guthrie that

[p]remeditation and deliberation should be defined in a more

careful, but still general way to give juries both guidance and

reasonable discretion. Although premeditation and deliberation

are not measured by any particular period of time, there must be

some period between the formation of the intent to kill and the

actual killing, which indicates the killing is by prior calculation

and design. As suggested by the dissenting opinion in Green v.

State, 1 Tenn.Crim.App. 719, 735, 450 S.W.2d 27, 34 (1970):

“True, it is not necessary to prove premeditation existed for any

definite period of time. But it is necessary to prove that it did

exist.” This means there must be an opportunity for some

reflection on the intention to kill after it is formed. The accused

must kill purposely after contemplating the intent to kill.

Although an elaborate plan or scheme to take life is not

required, our Schrader’s11 notion of instantaneous premeditation

and momentary deliberation is not satisfactory for proof of first

degree murder.

11

Guthrie overruled State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1983), which

indicated that the meaning of “premeditated” as used in the [murder] statute is essentially

“knowing and intentional.” 194 W.Va. at 664, 461 S.E.2d at170; syl. pt. 6.

13

Id. at 675, 461 S.E.2d at 181 (footnote added). Of importance to the case at bar is the fact

that Guthrie made it clear that intent to kill is an element of second degree murder. In that

regard, Justice Cleckley further explained:

[T]here must be some evidence that the defendant considered

and weighed his decision to kill in order for the State to

establish premeditation and deliberation under our first degree

murder statute. This is what is meant by a ruthless,

cold-blooded, calculating killing. Any other intentional killing,

by its spontaneous and nonreflective nature, is second degree

murder.

Id. at 675-76, 461 S.E.2d at 181-82 (footnote omitted and emphasis added).

Therefore, pursuant to Guthrie, intent to kill is an element of second degree

murder. Intent to kill, however, is not an element of the offense of death of a child by a

parent, guardian or custodian as set forth in West Virginia Code § 61-8D-2a(a). Furthermore,

as discussed above, the offense of death of a child by a parent, guardian or custodian by child

abuse contains elements of proof not required to establish second degree murder. Therefore,

the two offenses are separate and distinct pursuant to the Blockberger test.

IV. Conclusion

Accordingly, for the reasons set forth above, the final order of the Circuit Court

of Cabell County entered on April 17, 2012, is affirmed.

Affirmed.

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