State of West Virginia v. Jason Swindler
CourtWest Virginia Supreme Court
Date FiledNovember 12, 2026
Docket23-390
JudgeTrump
StatusPublished
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Full Opinion
FILED
November 12, 2026
released at 3:00 p.m.
C. CASEY FORBES, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2026 Term
_____________
No. 23-390
_____________
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent,
V.
JASON SWINDLER,
Defendant Below, Petitioner.
________________________________________________
Appeal from the Circuit Court of Jackson County
The Honorable Lora A. Dyer, Judge
Criminal Action Nos. CC-18-2020-F-33 and 21-F-40
REVERSED AND REMANDED
________________________________________________
Submitted: September 23, 2026
Filed: November 12, 2026
Edward Bullman, Esq. John B. McCuskey, Esq.
Bullman and Bullman Attorney General
Charleston, West Virginia Holly M. Mestemacher, Esq.
Attorney for the Petitioner Assistant Attorney General
Office of the Attorney General
Charleston, West Virginia
Attorneys for the Respondent
CHIEF JUSTICE BUNN delivered the Opinion of the Court.
JUSTICE TRUMP dissents and reserves the right to file a separate opinion.
SYLLABUS BY THE COURT
1. “This Court’s standard of review concerning a motion to dismiss an
indictment is, generally, de novo. However, in addition to the de novo standard, where the
circuit court conducts an evidentiary hearing upon the motion, this Court’s ‘clearly
erroneous’ standard of review is invoked concerning the circuit court’s findings of fact.”
Syllabus Point 1, State v. Grimes, 226 W. Va. 411, 701 S.E.2d 449 (2009).
2. “Under the provisions of the habitual criminal statute, [West Virginia
Code § 61-11-19 (eff. 1943 through June 4, 2020)], the trial court is required to cause the
defendant to be confronted at the same term of court at which he is convicted of the
principal offense with the previous convictions contained in the information filed by the
prosecuting attorney, and if this provision of the statute is not complied with the additional
sentence to the maximum statutory sentence of the principal offense is void.” Syllabus
Point 2, State ex rel. Albright v. Boles, 149 W. Va. 561, 142 S.E.2d 725 (1965).
3. “The procedural recidivist requirements of W. Va. Code § 61-11-19
(1943) (Repl. Vol. 2010) are mandatory, jurisdictional, and not subject to harmless error
analysis.” Syllabus Point 1, Holcomb v. Ballard, 232 W. Va. 253, 752 S.E.2d 284 (2013).
i
4. “A procedural change in a criminal proceeding does not violate the ex
post facto principle found in the W. Va. Const. art. III, § 4 and in the U.S. Const. art. I, § 10
unless the procedural change alters the definition of a crime so that what is currently
punished as a crime was an innocent act when committed; deprives the accused of a defense
which existed when the crime was committed; or increases the punishment for the crime
after it was committed.” Syllabus Point 7, State ex rel. Collins v. Bedell, 194 W. Va. 390,
460 S.E.2d 636 (1995).
5. “The primary purpose of our recidivist statutes, W. Va. Code, 61-11-
18 (1943), and W. Va. Code, 61-11-19 (1943), is to deter felony offenders, meaning
persons who have been convicted and sentenced previously on a penitentiary offense, from
committing subsequent felony offenses. The statute is directed at persons who persist in
criminality after having been convicted and sentenced once or twice, as the case may be,
on a penitentiary offense.” Syllabus Point 3, State v. Jones, 187 W. Va. 600, 420 S.E.2d
736 (1992).
ii
BUNN, Chief Justice:
This case concerns the timeliness of defendant Jason Swindler’s arraignment
on a recidivist information. On June 10, 2021, during the February term of court, a Jackson
County jury convicted Mr. Swindler of all counts of a ten-count indictment charging
various crimes, including grand larceny. These crimes were alleged to have occurred in
January 2020. Shortly after the jury convicted Mr. Swindler, on June 15, 2021, the State
filed a recidivist information alleging he had previously been convicted of certain predicate
felonies. However, the circuit court did not arraign Mr. Swindler until June 22, 2021,
which, pursuant to West Virginia Trial Court Rules 2 and 2.05, was the same day that the
June term of court began in Jackson County. Mr. Swindler moved the court to dismiss the
recidivist information on the basis that he was not timely arraigned during the same term
of court as his conviction, as was required by West Virginia Code § 61-11-19 (eff. 1943
through June 4, 2020). The court denied his motion, finding that the June term of court had
not begun until the grand jury was sworn in on the afternoon of June 22, after his
arraignment. After a jury trial on the recidivist information, where he was found to be the
person who committed numerous earlier felonies as alleged in the recidivist information,
the court sentenced him for the crimes in the ten-count indictment and included a life
sentence enhancement relating to the recidivist conviction. On appeal, Mr. Swindler asserts
1
that the circuit court erred by denying his motion to dismiss. We agree and reverse his
recidivist conviction and remand for resentencing.1
I.
FACTUAL AND PROCEDURAL HISTORY
In February 2020, a Jackson County grand jury indicted Mr. Swindler in a
ten-count indictment, including three counts of breaking and entering (Counts 1, 5, and 8),2
three counts of grand larceny (Counts 2, 4, and 6),3 three counts of misdemeanor
destruction of property (Counts 3, 7, and 10),4 and one count of attempt to commit a felony
(Count 9).5 The indictment alleged that all the crimes occurred in January 2020. Mr.
Swindler’s trial began in June 2021 during the February term of court in Jackson County.
The jury returned a guilty verdict on all counts on June 10, 2021.
1
Because we resolve Mr. Swindler’s appeal on the ground relating to his untimely
arraignment, we do not address his argument that the predicate offenses in the recidivist
information did not qualify as felonies that would require a life sentence pursuant to West
Virginia Code § 61-11-18.
2
See W. Va. Code § 61-3-12.
3
See W. Va. Code § 61-3-13.
4
See W. Va. Code § 61-3-30.
5
See W. Va. Code § 61-11-8.
2
On June 15, 2021, the State moved the court to file a recidivist information
against Mr. Swindler, which the court granted on the same day and set June 22, 2021, as
the date for the “return” of the recidivist information.6 On the morning of June 22, 2021,
the circuit court arraigned Mr. Swindler on that information via teleconference. However,
because the Trial Court Rules established that a new term of court began in Jackson County
on the fourth Tuesday of June—in this case June 22, 2021—Mr. Swindler moved to dismiss
the recidivist information. He argued that the February term of court in which he was
convicted expired on June 21, 2021, and that the procedural requirements of West Virginia
Code § 61-11-19, discussed more herein, required him to be arraigned on the recidivist
information during the same term of court in which he was convicted of the triggering
offense.7 In response to Mr. Swindler’s motion, the State urged the circuit court to find that
the February term of court did not end until the grand jury was impaneled for the new term
of court on June 22, 2021, which occurred after Mr. Swindler’s arraignment that morning.
The circuit court denied Mr. Swindler’s motion to dismiss. In an August 24,
2021 order, the court found that “[t]he February 2021 term of the [c]ourt expired in the
afternoon of June 22, 2021, at the time the June 2021 Grand Jury was impaneled by this
6
The motion and recidivist information do not appear in the appendix, although the
circuit court’s order granting the motion is included.
7
Again, the appendix does not contain the transcript of the arraignment, nor does it
contain the motion Mr. Swindler filed later. This information is gleaned from the circuit
court’s order denying his motion to dismiss.
3
[c]ourt.” The court then recited the 1943 version of West Virginia Code § 61-11-19 and
concluded that Mr. Swindler was timely arraigned “within the term of the [c]ourt in which
he was convicted[.]” The court reasoned that “the February 2021 term of the [c]ourt was
not concluded until the afternoon of June 22, 2021, when the June 2021 Grand Jury was
[impaneled].”
A jury subsequently found that Mr. Swindler was the same individual
previously convicted of certain felonies as alleged in the recidivist information. In a
sentencing order filed in November 2022,8 the court sentenced Mr. Swindler, with the
sentences for Counts 1 through 5 and Counts 7 through 10 to be served consecutively.9 For
Count 6, grand larceny, the court applied the recidivist enhancement and ordered that Mr.
Swindler be “committed to the custody of the Commissioner of the Division of Corrections
for life.” The court ordered that his life sentence was to run concurrently with the
8
The sentencing order indicates that the hearing occurred on October 4, 2022. The
sentencing transcript was not included in the appendix.
9
The consecutive sentences were as follows: Count 1, breaking and entering,
imprisonment for one to ten years; Count 2, grand larceny, imprisonment for one to ten
years; Count 3, misdemeanor destruction of property, one year in custody; Count 4, grand
larceny, imprisonment for one to ten years; Count 5, breaking and entering, imprisonment
for one to ten years; Count 7, misdemeanor destruction of property, one year in custody;
Count 8, breaking and entering, imprisonment for one to ten years; Count 9, attempt to
commit a felony, imprisonment for one to three years; and Count 10, misdemeanor
destruction of property, one year in custody.
4
consecutive sentences. An order resentencing Mr. Swindler for the purposes of appeal was
filed on June 1, 2023, and he subsequently appealed.
II.
STANDARD OF REVIEW
We review a circuit court’s denial of a motion to dismiss an indictment—or
here, an information—de novo:
This Court’s standard of review concerning a motion to
dismiss an indictment is, generally, de novo. However, in
addition to the de novo standard, where the circuit court
conducts an evidentiary hearing upon the motion, this Court's
“clearly erroneous” standard of review is invoked concerning
the circuit court’s findings of fact.
Syl. Pt. 1, State v. Grimes, 226 W. Va. 411, 701 S.E.2d 449 (2009).
III.
DISCUSSION
We first discuss when a term begins, determine that Mr. Swindler was not
timely arraigned on the recidivist information, then find that the circuit court erred by
denying Mr. Swindler’s motion to dismiss the information on that basis. We finally reject
the State’s argument, raised for the first time on appeal, that the June 5, 2020 version of
the statute, rather than the 1943 version of West Virginia Code § 61-11-19, applied.
5
While the statutory eligibility for recidivist sentences is described in West
Virginia Code § 61-11-18, West Virginia Code § 61-11-19, entitled “Procedure in trial of
persons for second or third offense[,]” regards the specific procedure applicable to
recidivist proceedings. In January 2020, when Mr. Swindler committed the underlying
crimes as alleged in the indictment that gave rise to the recidivist information, the language
of § 61-11-19 provided, in relevant part, the following:
It shall be the duty of the prosecuting attorney when he
has knowledge of former sentence or sentences to the
penitentiary of any person convicted of an offense punishable
by confinement in the penitentiary to give information thereof
to the court immediately upon conviction and before sentence.
Said court shall, before expiration of the term at which such
person was convicted, cause such person or prisoner to be
brought before it, and upon an information filed by the
prosecuting attorney, setting forth the records of conviction
and sentence, or convictions and sentences, as the case may be,
and alleging the identity of the prisoner with the person named
in each, shall require the prisoner to say whether he is the same
person or not.
W. Va. Code § 61-11-19 (eff. 1943 through June 4, 2020) (emphasis added).
The Court has held that the timing provision in § 61-11-19 relating to the
defendant’s arraignment is mandatory and, for the 1943 version of the statute, requires that
a defendant be “confronted at the same term of court at which he is convicted”:
Under the provisions of the habitual criminal statute,
[West Virginia Code § 61-11-19 (eff. 1943 through June 4,
2020)], the trial court is required to cause the defendant to be
confronted at the same term of court at which he is convicted
of the principal offense with the previous convictions
6
contained in the information filed by the prosecuting attorney,
and if this provision of the statute is not complied with the
additional sentence to the maximum statutory sentence of the
principal offense is void.
Syl. Pt. 2, State ex rel. Albright v. Boles, 149 W. Va. 561, 142 S.E.2d 725 (1965). Likewise,
the Court has emphasized the mandatory nature of these procedural requirements, holding
that “[t]he procedural recidivist requirements of W. Va. Code § 61-11-19 (1943) (Repl.
Vol. 2010) are mandatory, jurisdictional, and not subject to harmless error analysis.” Syl.
Pt. 1, Holcomb v. Ballard, 232 W. Va. 253, 752 S.E.2d 284 (2013); see also Syl. Pt. 1,
Albright, 149 W. Va. 561, 142 S.E.2d 725 (“The provisions of the habitual criminal statute,
Code, 61-11-19, as amended, are mandatory and must be fully complied with.”). In
Albright, the Court considered the legality of an additional five-year habitual criminal
sentence, pursuant to West Virginia Code § 61-11-18, when the defendant “was not
confronted with the information at the same term at which he was convicted of the principal
offense.” 149 W. Va. at 563, 142 S.E.2d at 727. The defendant earlier pled guilty to a
burglary charge contained in an indictment, which was considered in that case to be a
conviction. Id. at 563-64, 142 S.E.2d at 727. In the next term of court, the prosecuting
attorney filed an information alleging that the defendant had a prior felony conviction. Id.
at 562, 142 S.E.2d at 727. The Court, finding that the defendant was not timely confronted
with the information, reasoned that
the trial court did not comply with the requirements of [West
Virginia Code §] 61-11-19, as amended, in that it failed to
cause the defendant to be confronted at the same term of court
at which he was convicted of the principal offense with the
7
previous conviction contained in the information filed by the
prosecuting attorney.
Id. at 564, 142 S.E.2d at 727. The Court then resolved that “the additional sentence to the
maximum statutory sentence for the principal offense is void[.]” Id.; see generally
Holcomb, 232 W. Va. 253, 752 S.E.2d 284 (collecting cases reversing recidivist sentences
when defendants were arraigned in the following term of court).
Similarly, in Holcomb, the State filed a recidivist information during the
same term of court as the defendant’s conviction and served a copy of the information on
him, yet the defendant did not appear before the trial court on the information until a new
term. 232 W. Va. at 254-55, 752 S.E.2d at 285-86. The Court recognized that, pursuant to
West Virginia Code § 61-11-19, “a trial court is obligated to arraign a defendant on a
recidivist information during the term of court in which the defendant is convicted.” Id. at
256, 752 S.E.2d at 287. Finding that “the State failed to comply with the requirements of
W. Va. Code § 61-11-19 insofar as [the defendant] was not arraigned on the information
during the term of court in which he was convicted of the principal offense[,]” the Court
voided the recidivist life sentence. Id. at 260-61, 752 S.E.2d at 291-92.
Certainly, based upon this Court’s precedent, a defendant’s arraignment on
the information must occur within the same term of court as the conviction of the triggering
offense. Whether Mr. Swindler was timely arraigned, however, depends upon when one
8
term of court is said to end and the next begins. The Trial Court Rules provide an
unequivocal answer: the term of court is a day certain as opposed to dependent upon the
timing of swearing in the grand jury. Trial Court Rule 2, entitled “Terms of Court[,]” states
that, “The terms of the circuit courts shall commence and be held each year as provided in
this rule.” Rule 2.05 explains that for Jackson County, the circuit court term begins “on the
fourth Tuesday in February, June, and October[.]”10 In accordance with Rule 2.05, the June
term began on June 22, 2021—the fourth Tuesday in June.
The State argues, in part, that the lower court did not abuse its discretion in
determining when the term of court began. We disagree.11 The simplicity of the issue before
10
This Rule states:
Rule 2. Terms of Court.
The terms of the circuit courts shall commence and be held each
year as provided in this rule.
....
Rule 2.05. Fifth Circuit.
. . . for the county of Jackson, on the fourth Tuesday in February,
June, and October[.]
11
The State implies that West Virginia Code § 61-11-19 is ambiguous as to when a
term begins by arguing that the circuit court did not abuse its discretion when it determined
that when a term of court begins is based on certain occurrences (i.e., swearing in the grand
jury) during that day. However, even if we agreed with the State’s position regarding the
flexibility of the statutory language, we note that any ambiguity must be construed in favor
of a defendant. See Syl. Pt. 5, State ex rel. Morgan v. Trent, 195 W. Va. 257, 465 S.E.2d
9
the circuit court and this Court—when the term begins—seems obvious. However, in an
apparent effort to cure the evident procedural defect, the circuit court reached for a statute
allowing extension of the time for opening court where necessary and an inapplicable case
from 1865 dealing with executions. Similarly, the State argued, for the first time on appeal,
that a new version of West Virginia Code § 61-11-19 applied to Mr. Swindler’s recidivist
information. We address each in turn.
A. Mr. Swindler’s arraignment was untimely pursuant to West Virginia Code § 61-11-19
As we discussed, Trial Court Rule 2 and Rule 2.05 establish that, in 2021, the
circuit court’s June term began June 22, 2021. The circuit court arraigned Mr. Swindler the
morning the new June term began, at which point he was confronted by the recidivist
information. Like the defendant in Holcomb, he was not arraigned during the term in which
he was convicted, the February term. Thus his arraignment was untimely and disregarded
the mandatory procedural requirements set forth in the statute. The circuit court’s inquiry
should have ended there. The circuit court erred by denying Mr. Swindler’s motion to
257 (1995) (“In construing an ambiguous criminal statute, the rule of lenity applies which
requires that penal statutes must be strictly construed against the State and in favor of the
defendant.”). We have also “historically adopted a rather strict and narrow construction of
our recidivist statute.” Wanstreet v. Bordenkircher, 166 W. Va. 523, 525, 276 S.E.2d 205,
207-08 (1981). Recognizing that “[h]abitual criminal proceedings” are “wholly
statutory[,]” the Court has held that “[i]n such proceedings, a court has no inherent or
common law power or jurisdiction[,]” and “such statutes are generally held to require a
strict construction in favor of the prisoner.” Syl. Pt. 2, in part, id. (quoting State ex rel.
Ringer v. Boles, 151 W. Va. 864, 871, 157 S.E.2d 554, 558 (1967)).
10
dismiss the recidivist information pursuant to West Virginia Code § 61-11-19 and Syllabus
Point 2, Albright, 149 W. Va. 561, 142 S.E.2d 725.
Furthermore, the circuit court’s legal gymnastics erroneously justified Mr.
Swindler’s late arraignment based on the fact that Mr. Swindler happened to be arraigned
before the court swore in the grand jury for the June term of court. The court erred when it
relied on a statute regarding the administration of the courts and further determined that it
could extend a term “when necessary,” citing a syllabus point addressing the timing of
executions. The court based its determination in part on West Virginia Code § 51-3-10,
which notes that court need not be held “on the first day of a term” and a term may be
“opened” before 4 p.m. on the third day of the term:
Though court be not held on the first day of a term, it
may nevertheless be opened on any subsequent day; provided,
in the case of any court of record for any county, the same be
done before four o’clock in the afternoon of the third day. If,
after a court is opened, it fails to sit on any day, it may
nevertheless sit on any subsequent day of the term: Provided,
That in the case of any court of record for any county, there be
not more than thirty consecutive days of such failure.
W. Va. Code § 51-3-10. The circuit court failed to explain its reliance on § 51-3-10, yet this
reliance operates to create ambiguity where none exists in the text of the statute or the
applicable Rule.12 The statute specifies that court need not be held on the first day of the
12
Further, neither the Trial Court Rule 2 nor West Virginia Code § 51-3-10
contemplates the grand jury’s role in determining when a term opens. Under the circuit
court’s analysis, the term in which a defendant is arraigned depends on what time the
11
term and provides a distinction between the first day of the term and when the term must be
opened—by 4:00 p.m. on the third day—thus implying that the first day of the term was,
indeed, the first day of the term. See W. Va. Code § 51-3-10.
When refusing to dismiss the recidivist information, the circuit court, without
further analysis, also claimed that Boice v. State, 1 W. Va. 329 (1865), “confirms the
extension of a term of court if necessary.” The court quoted, in part, Boice’s syllabus point
regarding the execution of prisoners, which provides in full:
A term of the circuit court does not necessarily begin on
the day fixed by law, but may open before four o’clock in the
afternoon of the third day thereafter; and therefore it is not error
in a circuit court to enter judgment and order execution, against
prisoners, who have been convicted for murder in one county,
on the second day after the time fixed for the beginning of a
term in an adjoining county of the same circuit.
Syl. Pt. 1, Boice, 1 W. Va. 329. The circuit court here relied on Boice to argue that extending
the term was necessary, but fails to explain why this extension was necessary here. The
court made no findings on that matter other than to note that it was “not subsequently in
session to hold hearings” between the filing of the information on June 15, 2021, and June
22, 2021. In sum, the circuit court determined when the term began based upon an
inapplicable statute, West Virginia Code § 51-3-10, and inexplicably relied on Boice. Yet,
when the court arraigned Mr. Swindler, the February term had already ended, the June term
arraignment hearing is set. This position is unsupported in the law and unworkable in
practice.
12
had begun, and the court’s determination and reliance on these authorities were merely an
attempt to avoid its procedural errors in timely arraigning Mr. Swindler.
B. The 1943 version of West Virginia Code § 61-11-19, in effect when Mr. Swindler
committed the triggering offense, applies
Having established that the circuit court erred in finding that it timely
arraigned Mr. Swindler and by failing to dismiss the recidivist information, we now turn
to the State’s argument, submitted for the first time on appeal, that the June 5, 2020 version
of West Virginia Code § 61-11-19 applies and provides other grounds for this Court to
affirm the circuit court’s refusal to dismiss the recidivist information. The State urges us to
apply the amended version of the statute in effect at the time that the State filed the
recidivist information as opposed to the time the triggering offense was committed. See
W. Va. Code § 61-11-19 (eff. June 5, 2020). The amended statute provides, in relevant
part, that
A prosecuting attorney, when he or she has knowledge
of a former sentence or sentences to the penitentiary of any
person convicted of an offense punishable by confinement in
the penitentiary, may give information thereof to the court
immediately upon conviction and before sentence. Said court
shall, before expiration of the next term at which such person
was convicted, cause such person or prisoner to be brought
before it, and upon an information filed by the prosecuting
attorney, setting forth the records of conviction and sentence,
or convictions and sentences, as the case may be, and alleging
the identity of the prisoner with the person named in each, shall
require the prisoner to say whether he or she is the same person
or not.
13
Id. (emphasis added). In arguing that this Court should affirm the circuit court by applying
the amended statute that became effective months after Mr. Swindler committed the
triggering offense, the State’s position violates ex post facto principles.13
This Court has recognized that, “[u]nder ex post facto principles of the United
States and West Virginia Constitutions, a law passed after the commission of an offense
which increases the punishment, lengthens the sentence or operates to the detriment of the
accused, cannot be applied to him.” Syl. Pt. 1, Adkins v. Bordenkircher, 164 W. Va. 292,
262 S.E.2d 885 (1980). The Court has outlined when a procedural change in a criminal
proceeding would be prohibited under ex post facto principles:
any statute which punishes as a crime an act previously
committed, which was innocent when done; which makes more
burdensome the punishment for a crime, after its commission,
or which deprives one charged with crime of any defense
available according to law at the time when the act was
committed, is prohibited as ex post facto.
State ex rel. Collins v. Bedell, 194 W. Va. 390, 401, 460 S.E.2d 636, 647 (1995) (quoting
Collins v. Youngblood, 497 U.S. 37, 42 (1990)). In discussing Collins v. Youngblood, the
Bedell Court noted that the United States Supreme Court’s Collins analysis means that “if
13
The State admits that applying the amended statute would be a retroactive
application of the statute, arguing that although “[t]he Legislature did not specifically direct
that this amendment be applied retroactively, . . .it should nonetheless receive retroactive
application.” The State seeks the amended statute’s use in an outcome-determinative
approach, stating that “retroactive application” of the amended statute “aligns with ex post
facto principles, applies here, and eliminates any question whether the procedural
requirements of the 1943 version of the statute [were] satisfied.”
14
the questioned procedural change does not fit into the above framework, then the
procedural change in the criminal proceeding is not prohibited as ex post facto[.]” 194 W.
Va. at 401, 460 S.E.2d at 647. The Bedell Court memorialized this analysis from Collins
in a Syllabus Point, holding that
A procedural change in a criminal proceeding does not
violate the ex post facto principle found in the W.Va. Const. art.
III, § 4 and in the U.S. Const. art. I, § 10 unless the procedural
change alters the definition of a crime so that what is currently
punished as a crime was an innocent act when committed;
deprives the accused of a defense which existed when the crime
was committed; or increases the punishment for the crime after
it was committed.
Syl. Pt. 7, id.
Mr. Swindler committed the grand larceny triggering offense in January
2020, which ultimately gave rise to the recidivist information.14 The commission of the
triggering offense is what gives rise to recidivist prosecution. We have repeatedly
recognized that the recidivism statute aims at deterring repeat offenders’ conduct:
14
Although the recidivist information was not included in the joint appendix, the
court sentenced Mr. Swindler in accordance with the recidivist enhancement on a grand
larceny charge arising out of an offense committed in January 2020. Furthermore, all the
conduct in the underlying indictment, including the triggering offense or offenses, was
alleged to have occurred in January 2020. We have recognized that “[w]here multiple
sentences are imposed on a defendant arising out of multiple convictions rendered in the
same criminal proceeding, and where there is a concomitant recidivist conviction, only one
of the sentences may be subjected to a recidivist enhancement[,]” and the trial court has
the discretion to select the sentence to be enhanced. Syl. Pt. 10, in part, State v. Lewis, 235
W. Va. 694, 776 S.E.2d 591 (2015).
15
The primary purpose of our recidivist statutes, W. Va.
Code, 61-11-18 (1943), and W. Va. Code, 61-11-19 (1943), is
to deter felony offenders, meaning persons who have been
convicted and sentenced previously on a penitentiary offense,
from committing subsequent felony offenses. The statute is
directed at persons who persist in criminality after having been
convicted and sentenced once or twice, as the case may be, on
a penitentiary offense.
Syl. Pt. 3, State v. Jones, 187 W. Va. 600, 420 S.E.2d 736 (1992). A defendant’s eligibility
under the recidivist statutory scheme is not dependent upon when a defendant is convicted
of the triggering offense. Rather, the recidivist statutes aim to deter him from committing
that offense.
The State’s alternate approach—applying the amended version of West
Virginia Code § 61-11-19—would have extended the time frame for Mr. Swindler to have
been arraigned, as he could have been arraigned during the next term of court. W. Va. Code
§ 61-11-19 (eff. June 5, 2020). Yet as discussed above, when Mr. Swindler committed the
triggering grand larceny, the procedural statute mandated that he be arraigned during the
same term of court. W. Va. Code § 61-11-19 (eff. 1943 through June 4, 2020). Again, this
Court has previously described compliance with the recidivist procedural statute, West
Virginia Code § 61-11-19, as “mandatory and jurisdictional[.]” See Syl. Pt. 1, in part,
Holcomb, 232 W. Va. 253, 752 S.E.2d 284. Thus, in January 2020, when he committed the
offense giving rise to the recidivist information, Mr. Swindler had a defense to the
recidivist prosecution if he was not properly arraigned during the same term as the
16
conviction. Yet, had the later procedural statute been applied to his criminal proceeding, as
the State now urges, he would no longer have this defense to prosecution under the
recidivist statute. The June 5, 2020 version of the statute was not in effect when he
committed the January 2020 triggering offense, and to apply the later version to his
prosecution would “deprive” him of a “defense available according to law at the time when
the act was committed.” See Syl. Pt. 7, in part, Bedell, 194 W. Va. 390, 460 S.E.2d 636
(1995) (recognizing that “a procedural change in a criminal proceeding” violates ex post
facto principles when it “deprives the accused of a defense which existed when the crime
was committed”).
IV.
CONCLUSION
For the reasons explained above, we reverse the June 1, 2023 order of the
Circuit Court of Jackson County sentencing Mr. Swindler to a recidivist life sentence and
remand the case to the circuit court to resentence Mr. Swindler in accordance with this
opinion.
Reversed and remanded.
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