[Cite as Disciplinary Counsel v. Gonzalez, 138 Ohio St.3d 320, 2014-Ohio-851.]

                      DISCIPLINARY COUNSEL v. GONZALEZ.
         [Cite as Disciplinary Counsel v. Gonzalez, 138 Ohio St.3d 320,
                                    2014-Ohio-851.]
Attorney discipline—Failure to notify clients of lack of malpractice insurance—
        Commingling—Failure          to   maintain     records     for   trust   account—
        Withdrawal from representation without permission of court—Failure to
        cooperate in disciplinary proceeding—Two-year suspension with one year
        stayed.
      (No. 2013-0222—Submitted June 5, 2013—Decided March 11, 2014.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 12-048.
                                ____________________
        Per Curiam.
        {¶ 1} Respondent, Vincent Ferdinand Gonzalez of Cleveland, Ohio,
Attorney Registration No. 0008558, was admitted to the practice of law in Ohio in
1974. In 2000, we publicly reprimanded him for using undignified language and
shouting at another attorney during negotiations before a domestic-relations court
magistrate. Cuyahoga Cty. Bar Assn. v. Gonzalez, 89 Ohio St.3d 470, 733 N.E.2d
587 (2000).
        {¶ 2} In 2012, relator, disciplinary counsel, charged Gonzalez with
commingling personal and client funds in his client trust account, failing to
maintain records of client-related expenditures, misappropriating a portion of a
client’s settlement award, and abandoning another client on the final day of trial.
Although Gonzalez stipulated to many of the allegations in relator’s amended
complaint, he denied that most of his actions violated the Rules of Professional
Conduct. After a hearing, a three-member panel of the Board of Commissioners
                             SUPREME COURT OF OHIO

on Grievances and Discipline issued a report finding that Gonzalez had
committed most of the charged misconduct and recommending that we
indefinitely suspend him from the practice of law in Ohio, with reinstatement
conditioned on restitution to a former client. The board adopted the panel’s report
and recommendation in its entirety.
       {¶ 3} Gonzalez objects to the board’s findings of misconduct in three of
the seven counts against him.        Upon our review of the record, we sustain
Gonzalez’s objections in part and overrule them in part and find that the
appropriate sanction in this case is a two-year suspension with the second year
stayed and payment of restitution as a condition of reinstatement.
                                    Misconduct
                  Count one—notice of lack of liability insurance
       {¶ 4} Gonzalez is a solo practitioner concentrating in the areas of domestic
relations, criminal defense, civil litigation, real estate, and personal injury. He has
not maintained professional liability insurance since February 2007.            Under
Prof.Cond.R. 1.4(c), if a lawyer does not maintain professional liability insurance
over certain amounts, the lawyer must notify clients of this fact on a “separate
form * * * signed by the client.” The prescribed “separate form” is set forth at the
end of Prof.Cond.R. 1.4. At the panel hearing, Gonzalez testified that he notified
clients in his fee contract that he did not carry malpractice insurance, but at oral
argument, he acknowledged that he does not always use a fee or retainer contract.
Because Gonzalez did not use the prescribed separate notice form, the board
found, and we agree, that Gonzalez violated Prof.Cond.R. 1.4(c).
                Count two—commingling personal and client funds
       {¶ 5} In 2009, a jury awarded damages to Gonzalez’s wife in a personal-
injury case filed by her and Gonzalez. In July 2009, Gonzalez deposited his
wife’s award of $122,169.86 into his client trust account, and by the end of
August 2009, Gonzalez had disbursed $38,065 to pay their attorney’s fees and

                                          2
                               January Term, 2014

$50,500 to himself, his wife, and to cash. Gonzalez, however, kept the remaining
amount of his wife’s personal-injury award, $33,604.86, in his client trust
account, and over the next five months, he issued 25 checks drawn on his trust
account to various individuals and entities for personal items and services. For
example, in September 2009, he issued trust-account checks for car repairs and to
purchase kitchen cabinets; in November 2009, he issued a trust-account check for
chimney work; and in January 2010, he issued a trust-account check for tile work.
During that same time period, Gonzalez held another client’s funds in his trust
account. As a result, the board found that Gonzalez violated Prof.Cond.R. 1.15(a)
(requiring a lawyer to hold property of clients in an interest-bearing client trust
account, separate from the lawyer’s own property).          Relator also charged
Gonzalez with violating Prof.Cond.R. 8.4(h) (prohibiting a lawyer from engaging
in conduct that adversely reflects on the lawyer’s fitness to practice law). The
board, however, recommends that we dismiss the charge under Prof.Cond.R.
8.4(h) because Gonzalez did not mishandle or misappropriate any of the client’s
funds commingled with his wife’s personal funds.          We accept the board’s
recommendation and hereby dismiss the alleged violation of Prof.Cond.R. 8.4(h)
in count two.
                              Gonzalez’s objections
       {¶ 6} Gonzalez appears to object to the board’s findings here, stating in
his brief that the trust-account disbursements from his wife’s settlement were
requested by her, that he “did not hold money for clients,” and that his trust
account was “primarily used for insurance settlements.” Whether Gonzalez’s
wife authorized the trust-account disbursements, however, is irrelevant to the
alleged violation of Prof.Cond.R. 1.15(a). The problem was that Gonzalez held
his wife’s personal funds in his trust account for five months, during which time
period he had also deposited client funds. Prof.Cond.R. 1.15(a) expressly requires
a lawyer to hold property of clients “separate from the lawyer’s own property” in

                                        3
                             SUPREME COURT OF OHIO

an interest-bearing account. In addition, Gonzalez’s objection that he did not
“hold money for clients” in his trust account is contradicted by the record. During
the board proceedings, Gonzalez stipulated and testified that at the time he kept
his wife’s personal funds in his trust account, he had also deposited funds
belonging to a client in that account. Accordingly, Gonzalez’s objections to the
board’s findings in count two are overruled, and we agree that Gonzalez violated
Prof.Cond.R. 1.15(a).
                        Count three—Fernando Perez matter
       {¶ 7} On October 21, 2010, Gonzalez deposited a $20,000 settlement
check into his trust account on behalf of Fernando Perez, whom Gonzalez
represented in a personal-injury case.       Over the next two weeks, Gonzalez
disbursed $6,000 to himself for his attorney fees in the Perez matter, $5,000 to a
doctor related to Perez’s case, and $7,697.73 to Perez. Gonzalez, however, failed
to produce any records accounting for the remaining $1,302.27 from Perez’s
settlement. And within five months of depositing Perez’s settlement funds into
his trust account, Gonzalez overdrew the account by issuing trust-account checks
unrelated to Perez’s case. Specifically, in January 2011, Gonzalez issued a check
to the clerk of a court of appeals, although he could not establish the owner of the
funds for that check, and he also issued a $1,000 check to himself. And in March
2011, he issued two checks on behalf of a client who had no money in the
account.
       {¶ 8} Relator charged Gonzalez with misappropriating $1,302.27 from
Perez. Gonzalez disputed the allegation, claiming that he used the remaining
$1,302.27 from the settlement for expenses and fees relating to Perez’s case.
Although Gonzalez could not produce any receipts accounting for these alleged
case-related expenditures, he testified that Perez’s settlement statement indicated
how all of Perez’s settlement proceeds were disbursed.         Gonzalez, however,
refused to produce a copy of the settlement statement to relator, insisting that it

                                         4
                                January Term, 2014

was protected by the attorney-client privilege and that relator had the burden to
first obtain a release from Perez. Gonzalez also refused to ask Perez for a release
himself, claiming that Perez had no complaints about him, and therefore Gonzalez
did not want to unnecessarily involve Perez in the disciplinary matter.
       {¶ 9} Based on this record, the board determined that Gonzalez had
violated Prof.Cond.R. 1.15(a)(2) (requiring a lawyer to maintain a record for each
client on whose behalf funds are held), 8.4(c) (prohibiting a lawyer from engaging
in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(h).
                               Gonzalez’s objections
       {¶ 10} Gonzalez claims that relator failed to prove any rule violations
regarding his representation of Perez and specifically objects “to the conclusion
[that] he has been dishonest with his clients or that he did not give his clients what
they were entitled to receive from their cases.” In support, Gonzalez attached to
his brief an affidavit from Perez and a copy of the previously undisclosed
settlement statement.
       {¶ 11} We have recognized, however, that “Gov.Bar R. V provides for a
formal evidentiary hearing before a panel of the board and does not provide for
the introduction of additional evidence once the proceedings are before this
court.” Disciplinary Counsel v. Squire, 130 Ohio St.3d 368, 2011-Ohio-5578,
958 N.E.2d 914, ¶ 45, fn. 3. Accordingly, we will accept additional evidence at
this late stage only “under the most exceptional of circumstances.” Id., citing
Columbus Bar Assn. v. Sterner, 77 Ohio St.3d 164, 672 N.E.2d 633 (1996). Here,
Gonzalez could have called Perez to testify in his defense at the panel hearing,
and he could have submitted a copy of the settlement statement into the record
below—either in response to relator’s requests or as evidence at the panel hearing.
Gonzalez, however, chose not to and instead insisted that relator had the burden to
obtain the document from his client. On this record, no exceptional circumstances

                                          5
                              SUPREME COURT OF OHIO

exist that would allow Gonzalez to introduce these documents for the first time in
his objections.
       {¶ 12} Nevertheless, we sustain in part and overrule in part Gonzalez’s
objections in this count.     We agree with the board’s findings that Gonzalez
violated Prof.Cond.R. 1.15(a)(2) and 8.4(h).      Gonzalez failed to maintain or
produce receipts and other documentation accounting for $1,302.27 from Perez’s
settlement, and he also overdrew his trust account, issued two trust-account
checks on behalf of a client who had no funds in that account, issued a trust-
account check to the clerk of courts on behalf of a client he could not identify, and
failed to keep client ledgers for Perez’s account. In short, Gonzalez flagrantly
violated the disciplinary rules requiring that he maintain detailed records of the
money held and disbursed on behalf of clients, and that conduct adversely reflects
on his fitness to practice law.
       {¶ 13} However, we disagree with the board’s conclusion that relator
proved that Gonzalez misappropriated client funds or otherwise engaged in
conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of
Prof.Cond.R. 8.4(c). In his amended complaint, relator alleged that Gonzalez
“misappropriated $1,302.27 belonging to Perez.” Although the board did not
expressly conclude that Gonzalez “misappropriated” from Perez, it found that
because Gonzalez “could not account for the missing $1,302.27,” he “committed
the violations alleged.”
       {¶ 14} In attorney disciplinary proceedings, the relator bears the burden of
proving, by clear and convincing evidence, the facts necessary to establish a
violation of a disciplinary rule. Squire, 130 Ohio St.3d 368, 2011-Ohio-5578, 958
N.E.2d 914, ¶ 34. Although relator proved that Gonzalez failed to account for
$1,302.27 in client funds—for which we are separately sanctioning him—this
misconduct alone does not necessarily show that Gonzalez also misappropriated
the money from Perez or defrauded him. “[M]isappropriation is ‘[t]he application

                                         6
                                 January Term, 2014

of another’s property or money dishonestly to one’s own use.’ ” Id. at ¶ 40,
quoting Black’s Law Dictionary 1088 (8th Ed.2009). The board did not cite any
evidence that Gonzalez had dishonestly used Perez’s money for his own purposes.
         {¶ 15} Instead, the board cited Disciplinary Counsel v. Weiss, 133 Ohio
St.3d 236, 2012-Ohio-4564, 977 N.E.2d 636, for the proposition that Gonzalez
had a duty to produce records establishing the proper disbursement of Perez’s
funds and because he refused to do so, he acted dishonestly with the money. The
board’s reliance on Weiss is misplaced. Weiss was a default proceeding in which
a former client of Weiss clearly believed that he was entitled to additional
portions of settlement funds held in Weiss’s trust account, and evidence in the
record supported the former client’s position. But Weiss moved to Florida and
would not respond to inquiries from his former client’s attorney or relator. Id. at
¶ 5-11. The board characterized Weiss as having “essentially gone into hiding to
avoid paying his client.”
         {¶ 16} In contrast, Perez did not testify against Gonzalez, and therefore
the record is unclear whether Perez believed that Gonzalez had misappropriated
any of his money. And this is not a default proceeding—Gonzalez repeatedly
testified that he had not misappropriated or acted dishonestly with any of Perez’s
money.     Weiss is factually distinguishable, and we cannot rely on Weiss to
presume that Gonzalez dishonestly used Perez’s money for his own use. On this
record, Gonzalez’s deficient recordkeeping and accounting practices are at least
as likely to blame for the missing funds.
         {¶ 17} Acts of misappropriation result in the “strictest discipline,” with a
presumptive sanction of disbarment. Disciplinary Counsel v. Kelly, 121 Ohio
St.3d 39, 2009-Ohio-317, 901 N.E.2d 798, ¶ 17, quoting Cleveland Bar Assn. v.
Belock, 82 Ohio St.3d 98, 100, 694 N.E.2d 897 (1998). Given the seriousness of
the charge and the consequences of a violation, we find that relator has failed to

                                            7
                            SUPREME COURT OF OHIO

prove by clear and convincing evidence that Gonzalez misappropriated Perez’s
money or otherwise acted dishonestly in violation of Prof.Cond.R. 8.4(c).
       {¶ 18} In sum, we sustain Gonzalez’s objection with respect to the
violation of Prof.Cond.R. 8.4(c) and hereby dismiss that charge. We overrule his
remaining objections relating to this count and find that Gonzalez violated
Prof.Cond.R. 1.15(a)(2) and 8.4(h).
               Count four—trust-account recordkeeping violations
       {¶ 19} Since February 2007, Gonzalez has not maintained client ledgers
for funds deposited in his trust account, nor has he performed monthly
reconciliations of his trust account or retained client records required for
reconciliations. Based on these recordkeeping improprieties, the board found that
Gonzalez had violated Prof.Cond.R. 1.15(a)(2) and 1.15(a)(5) (requiring a lawyer
to perform and retain a monthly reconciliation of transactions involving the
lawyer’s client trust account). We concur with the board’s findings.
                        Count five—Ramon Colon matter
       {¶ 20} In March 2011, Ramon Colon, a client of Gonzalez, gave him $400
to retain an expert. Gonzalez, however, placed Colon’s money in a client file,
rather than his trust account, and Gonzalez then paid the expert with a trust-
account check. Gonzalez also admitted that he did not maintain client ledgers for
Colon’s funds. Based on this conduct, the board found, and we agree, that
Gonzalez violated Prof.Cond.R. 1.15(a)(2) and 1.15(c) (requiring a lawyer to
deposit into a client trust account legal fees and expenses that have been paid in
advance).
                        Count six—Maria Samame matter
       {¶ 21} In 2009, Maria Samame, a Venezuelan native, hired Gonzalez to
represent her in a divorce case. According to Gonzalez, Samame discharged him
in July 2010 for financial reasons, but the trial judge would not release him as
counsel. Trial commenced in January 2011, and Gonzalez claimed that Samame

                                        8
                                     January Term, 2014

had discharged him again on the morning of the fourth day of trial. According to
the trial transcript, Gonzalez stated the following to the magistrate:

                  I am formally requesting that I be allowed to withdraw
         since I’ve been discharged twice in this case, and it was only at the
         behest of Judge Karner that I remain, because I was trying to help
         Miss Samame with understanding the process here.
                  And at this point, in as much as, again, it’s been very clear
         to me that this court is not going to award any attorney fees to Miss
         Samame, then I wish to withdraw. I’m not going to work for free.

         {¶ 22} The magistrate denied Gonzalez’s request to withdraw and ordered
him to continue his representation of Samame. Samame indicated that she could
not afford to pay Gonzalez, but the magistrate explained to her that he had not yet
made any decision on attorney fees and that because she had no legal background,
he would not allow her attorney to withdraw in the middle of trial.1
         {¶ 23} At that point, Gonzalez was in the middle of cross-examining
plaintiff, Samame’s husband, but after the magistrate denied his withdrawal
request, Gonzalez stated that he had no further questions. He then withdrew two
previously marked exhibits.             The magistrate asked Gonzalez whether he
understood the position in which his actions were placing his client, but Gonzalez
insisted again—despite the fact that the magistrate had already denied his request
to withdraw—that he had been discharged by his client.
         {¶ 24} Plaintiff’s counsel then testified regarding his attorney fees, and
Gonzalez again offered no questions on cross-examination. After plaintiff rested

1. Loc.R. 7 of the Court of Common Pleas of Cuyahoga County, Domestic Relations Division,
provides that an attorney of record may not be relieved of his or her responsibilities unless the
court permits the attorney’s withdrawal. The local rule further states that the trial court may deny
an attorney’s request to withdraw if a trial date has been scheduled.

                                                 9
                              SUPREME COURT OF OHIO

his case, Gonzalez informed the magistrate that Samame wanted to testify in
narrative form, but the magistrate ordered him to ask his client questions under
direct examination. The magistrate also pleaded with Gonzalez to represent his
client, explaining that the court had to make findings of fact for spousal support
and division of property and without evidence for her case, Samame would be in a
“dangerous position” and “really vulnerable.” The magistrate further questioned
whether Samame genuinely appreciated the danger that could result if she did not
offer any evidence into the record. Despite the magistrate’s pleading, Gonzalez’s
direct examination consisted of one question—“what do you wish to tell the
court?”—and after a brief narrative response by Samame, Gonzalez did not offer
any substantive follow-up questions. Nor did he call any other witnesses to
support Samame’s case-in-chief.      In addition, the magistrate had to order
Gonzalez to make a closing argument, which lasted only 30 seconds.
        {¶ 25} Despite Gonzalez’s fears regarding not getting paid, the magistrate
ultimately awarded attorney fees to Samame. Specifically, in his April 2011 entry
granting the parties’ divorce, the magistrate ordered plaintiff to pay Gonzalez
$1,754.05 in attorney fees.
        {¶ 26} At the panel hearing, relator called the magistrate and plaintiff’s
counsel to testify about Gonzalez’s conduct during the fourth day of Samame’s
divorce trial. The magistrate described Gonzalez’s effort as “[h]alf-hearted at
best,” and he testified that Gonzalez placed his client in an “untenable position”
and that he “wasn’t doing his job.” For his part, Gonzalez testified that Samame
discharged him because she could not afford to pay him and that he was only
following her instructions not to cross-examine any witnesses or otherwise
participate in the trial.
        {¶ 27} The board determined that relator’s witnesses corroborated
relator’s contention that Gonzalez “had failed to take the necessary measures to
protect Samame’s interests.”     Further, the board concluded that Gonzalez’s

                                        10
                                    January Term, 2014

conduct was “motivated by financial considerations and not by the wishes or
needs of Samame,” as evidenced by his statement to the magistrate that he would
not “work for free.” Accordingly, the board found that Gonzalez had violated
Prof.Cond.R. 1.2(a) (requiring a lawyer to abide by the client’s decisions
concerning the objectives of representation and to consult with the client as to
means by which they are to be pursued), 1.3 (requiring a lawyer to act with
reasonable diligence in representing a client), 1.16(c) (prohibiting a lawyer from
withdrawing from representation in a proceeding without leave of court if the
rules of the tribunal so require),2 8.4(d) (prohibiting a lawyer from engaging in
conduct that is prejudicial to the administration of justice), and 8.4(h).
                                   Gonzalez’s objections
        {¶ 28} Gonzalez claims that relator has not proven any rule violations
regarding his representation of Samame. Specifically, he reiterates his position
that Samame instructed him not to continue with the divorce case, and he further
points to the testimony of plaintiff’s counsel, who stated that Samame ultimately
received everything from the divorce to which she was entitled.
        {¶ 29} We overrule Gonzalez’s objections with respect to the board’s
findings that he violated Prof.Cond.R. 1.3, 1.16(c), 8.4(d), and 8.4(h). The fact
that Samame ultimately received a fair judgment in the divorce proceeding—to
the extent that is true—does not absolve Gonzalez’s professional misconduct.
After the magistrate denied Gonzalez’s request to withdraw and ordered that he
proceed with his representation of Samame, Gonzalez nonetheless continued to
insist that he had been discharged and displayed little, if any, effort to protect his
client’s best interests. He affirmatively withdrew exhibits that he had previously

2. The board’s report states that Gonzalez violated Prof.Cond.R. 1.6(c), which is a typographical
error, as relator’s amended complaint charged Gonzalez with violating Prof.Cond.R. 1.16(c) and
the board’s description of the rule matches Prof.Cond.R. 1.16(c).

                                               11
                              SUPREME COURT OF OHIO

marked, and the magistrate had to order him to conduct a direct examination of
his client and a closing argument.
       {¶ 30} In the end, the panel members, who observed Gonzalez and the
other witnesses at the panel hearing, determined that Gonzalez was more
concerned about his compensation than ensuring that Samame receive the most
equitable resolution in her divorce proceeding. “Unless the record weighs heavily
against a hearing panel’s findings, we defer to the panel’s credibility
determinations, inasmuch as the panel members saw and heard the witnesses
firsthand.” Cuyahoga Cty. Bar Assn. v. Wise, 108 Ohio St.3d 164, 2006-Ohio-
550, 842 N.E.2d 35, ¶ 24.           Accordingly, we accept the panel members’
conclusions here about Gonzalez’s motivations.
       {¶ 31} However, we cannot conclude that relator has proven by clear and
convincing evidence that Gonzalez also violated Prof.Cond.R. 1.2(a). That rule
requires a lawyer to “abide by a client’s decisions concerning the objectives of
representation” and “consult with the client” about those objectives. Here, relator
admitted that Samame refused to testify at the panel hearing. Thus, we do not
know the specific decisions she made about her case or whether Gonzalez failed
to abide by her decisions. Gonzalez testified that he consulted with Samame and
she instructed him not to ask any further questions on cross-examination. Neither
relator nor the board has pointed to any evidence demonstrating that Gonzalez
failed to abide by his client’s decisions. Indeed, the magistrate testified at the
panel hearing that it was “evident” that Gonzalez and Samame had discussed
whether he would proceed with the case. Accordingly, we cannot conclude that
there is clear and convincing evidence that Gonzalez violated Prof.Cond.R. 1.2(a).
       {¶ 32} Thus, we sustain Gonzalez’s objection with respect to the violation
of Prof.Cond.R. 1.2(a) and hereby dismiss that charge.          We overrule his
remaining objections relating to this count and find that he violated Prof.Cond.R.
1.3, 1.16(c), 8.4(d), and 8.4(h).

                                         12
                               January Term, 2014

                        Count seven—failure to cooperate
       {¶ 33} In October 2011, plaintiff’s counsel in the Samame matter
submitted a grievance to relator regarding Gonzalez’s conduct during that trial.
Relator sent a letter of inquiry to Gonzalez by certified mail, and despite
confirming receipt of the letter, Gonzalez failed to respond. Gonzalez also failed
to respond to a second letter sent by relator in December 2011.           Gonzalez
appeared for a deposition in January 2012 and testified that he received relator’s
letters but found them to be “of no consequence.” In May 2012, relator sent
Gonzalez letters requesting copies of client files relating to his representation of
Samame, Perez, Colon, and another former client, but Gonzalez did not respond
or object to the requests until September 2012.
       {¶ 34} The parties stipulated that Gonzalez violated Prof.Cond.R. 8.1(b)
(prohibiting a lawyer from knowingly failing to respond to a demand for
information by a disciplinary authority during an investigation) and 8.4(h). The
board accepted the parties’ stipulations, adding that “in light of [Gonzalez’s]
explicit contempt for the disciplinary process and his complete lack of responses
to the reasonable demands made by Relator,” clear and convincing evidence
supported the violation for Prof.Cond.R. 8.4(h). We agree that Gonzalez violated
Prof.Cond.R. 8.1(b) and 8.4(h).
                                     Sanction
       {¶ 35} When imposing sanctions for attorney misconduct, we consider
several relevant factors, including the ethical duties violated, the actual injury
caused, the existence of any aggravating and mitigating factors listed in BCGD
Proc.Reg. 10(B), and the sanctions imposed in similar cases. Stark Cty. Bar Assn.
v. Buttacavoli, 96 Ohio St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16;
Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251, 875
N.E.2d 935, ¶ 21.      The board recommends that Gonzalez be indefinitely
suspended, with reinstatement conditioned on payment of restitution to Perez in

                                        13
                              SUPREME COURT OF OHIO

the amount of $1,302.27. Gonzalez does not address the appropriate sanction in
his objections. Instead, he indicates that he is contemplating retirement and that
he submitted objections only to contest the board’s conclusion that he has been
dishonest with his clients. Upon consideration of the relevant factors, we find that
a two-year suspension with the second year stayed, along with payment of
restitution to Perez as a condition of reinstatement, is the appropriate sanction in
this case.
        {¶ 36} The board found the existence of four aggravating factors—a prior
disciplinary offense, multiple offenses, lack of cooperation in the disciplinary
process, and refusal to acknowledge the wrongfulness of his conduct. See BCGD
Proc.Reg.10(B)(1)(a), (d), (e), and (g). The board did not find any mitigating
factors. We concur in the board’s findings.
        {¶ 37} For precedent, the board again relies on Disciplinary Counsel v.
Weiss, 133 Ohio St.3d 236, 2012-Ohio-4564, 977 N.E.2d 636, a default
proceeding in which an attorney was charged—as Gonzalez was—with using his
client trust account as a personal account, failing to cooperate in the disciplinary
proceeding, and dishonestly converting a portion of a client’s settlement to his
own use. But in contrast to the facts here, in Weiss we found that the relator had
sufficiently proven all of the charged misconduct, including a violation of
Prof.Cond.R. 8.4(c) “by using dishonesty, fraud, deceit, or misrepresentation to
convert a portion of those [settlement] funds to his own use.”         Id. at ¶ 13.
Accordingly, we indefinitely suspended Weiss from the practice of law and
ordered that he make restitution to the client whose settlement funds he had
converted. Id. at ¶ 16. Because we do not find that the evidence here supports a
finding that Gonzalez similarly violated Prof.Cond.R. 8.4(c), a lesser sanction
than in Weiss is justified.
        {¶ 38} However, we nonetheless accept the board’s recommended
condition that Gonzalez make restitution to Perez. Although the evidence does

                                        14
                                January Term, 2014

not clearly and convincingly show that Gonzalez dishonestly converted the
$1,302.27 to his own use, Perez’s money remains unaccounted for.                  And
Gonzalez was either unable or unwilling to produce any receipts or any other
records demonstrating how he expended those client funds. Without any evidence
showing the proper disbursement of the missing funds, we must assume that the
money belongs to Perez, and therefore Gonzalez must make restitution to Perez in
the amount of $1,302.27.
          {¶ 39} To summarize, Gonzalez has failed to properly notify clients that
he lacks malpractice insurance, commingled client and personal funds, failed to
account for client funds in his trust account, failed to keep records for client-
related expenditures, failed to cooperate in this disciplinary proceeding, and
engaged in a range of misconduct during the trial of a client’s case. Given this
misconduct, and having reviewed the aggravating factors and finding no
mitigating factors, we hold that the appropriate sanction in this case is a two-year
suspension with the second year stayed on the condition that Gonzalez commit no
further misconduct during the term of his suspension. If Gonzalez fails to comply
with the condition of the stay, the stay will be lifted and he will serve the full two-
year suspension. In addition, reinstatement is contingent on the condition that
Gonzalez make restitution to Perez in the amount of $1,302.27. Costs are taxed to
Gonzalez.
                                                              Judgment accordingly.
          O’CONNOR, C.J., and PFEIFER, O’DONNELL, KENNEDY, and O’NEILL, JJ.,
concur.
          FRENCH, J., concurs with the sanction but would allow Gonzalez to submit
an accounting of the proper disbursement of settlement funds to Perez in lieu of
restitution to Perez.
          LANZINGER, J., dissents and would impose an indefinite suspension, as
recommended by the board.

                                          15
                     SUPREME COURT OF OHIO

                     ____________________
Joseph Caligiuri, Chief Assistant Disciplinary Counsel, for relator.
Vincent Ferdinand Gonzalez, pro se.
                  _________________________

                                 16


        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                              September 2014 Term
                                                                 FILED
                                  _____________            September 18, 2014
                                                              released at 3:00 p.m.
                                                              RORY L. PERRY II, CLERK
                                   No. 13-0614              SUPREME COURT OF APPEALS
                                  _____________                 OF WEST VIRGINIA

                        STATE OF WEST VIRGINIA,

                         Plaintiff Below, Respondent

                                        V.

                              MITCHELL COLES,

                            Defendant Below, Petitioner

  ____________________________________________________________________

              Appeal from the Circuit Court of Monongalia County

                       Honorable Susan B. Tucker, Judge

                  Criminal Action Nos. 99-F-28 & 99-F-175

                               AFFIRMED

  ____________________________________________________________________

                         Submitted: September 3, 2014

                           Filed: September 18, 2014

W. Jesse Forbes                                    Patrick Morrisey
Forbes Law Offices, PLLC                           Attorney General
Charleston, West Virginia                          Misha Tseytlin
Attorney for Petitioner                            Deputy Attorney General
                                                   Charleston, West Virginia
                                                   Attorneys for Respondent

CHIEF JUSTICE DAVIS delivered the Opinion of the Court.

JUSTICE BENJAMIN concurs and reserves the right to file a concurring opinion.
                              SYLLABUS BY THE COURT

              1.      “In reviewing the findings of fact and conclusions of law of a circuit

court concerning an order on a motion made under Rule 35 of the West Virginia Rules of

Criminal Procedure, we apply a three-pronged 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 clearly erroneous standard; and questions of law and interpretations of

statutes and rules are subject to a de novo review.” Syllabus point 1, State v. Head, 198

W. Va. 298, 480 S.E.2d 507 (1996).

              2.      If 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 court lacked power to convict or sentence the defendant.

              3.      “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

                                               i
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.” Syllabus point 8, State v. Gill, 187

W. Va. 136, 416 S.E.2d 253 (1992).

              4.      The Legislature has made clear that the fraudulent scheme offense under

W. Va. Code § 61-3-24d (1995) (Repl. Vol. 2010) is a separate offense that may be

prosecuted in addition to any other offense under the Code. Therefore, double jeopardy

principles do not preclude a conviction and sentence for a fraudulent scheme offense in

addition to a conviction and sentence for any other offense arising out of the same transaction

or occurrence. The decision in State v. Rogers, 209 W. Va. 348, 547 S.E.2d 910 (2001),

which holds to the contrary, is overruled in its entirety.

                                               ii
Davis, Chief Justice:

              This criminal appeal was filed by Mitchell Coles (hereinafter “Mr. Coles”)

from an order of the Circuit Court of Monongalia County that denied his Motion for

Correction of Sentence. Mr. Coles’ motion sought to vacate one of two felony charges he

pled guilty to under Case No. 99-F-28. Mr. Coles argued below and now on appeal that the

two felony convictions violated double jeopardy principles. After a careful review of the

briefs, the record submitted on appeal and listening to the argument of the parties, we affirm.

                                               I.

                        FACTUAL AND PROCEDURAL HISTORY

              On January 7, 1999, a grand jury returned a five-count felony indictment

against Mr. Coles in Case No. 99-F-28.1 The indictment charged Mr. Coles with using a

check kiting scheme to obtain and attempt to obtain money.2 Specifically, Mr. Coles was

charged with one count of obtaining $1,500 by false pretenses from One Valley Bank, by

              1
                  The Appendix Record filed in this case is extremely limited.
              2
                Check kiting can take various forms. It is generally defined as “a scheme
designed to separate the bank from its money by tricking it into inflating bank balances and
honoring checks drawn against accounts with insufficient funds[.]” United States v. Geevers,
226 F.3d 186, 190 n.2 (3d Cir. 2000) (internal quotations and citations omitted). See Chesler
v. Dollar Bank, Fed. Sav. Bank, 951 N.E.2d 1098, 1101 n.2 (Ohio Ct. App. 2011) (“Check
kiting has been defined as the tender and deposit of checks between two accounts, artificially
inflating the balance of the accounts such that it appears the accounts are significantly funded
when in actuality, the funds do not exist.” (internal quotations and citation omitted)).

                                               1

tendering a check drawn on an unfunded account at United National Bank.3 The indictment

also charged Mr. Coles with three counts of attempting to obtain money by false pretenses

from One Valley Bank by tendering checks drawn on an unfunded account at United

National Bank. The three attempt counts involved an aggregate sum of $8,175. The fifth

count of the indictment charged Mr. Coles with the offense of fraudulent scheme.

              While prosecution on the indictment was pending, the State filed a six-count

information against Mr. Coles on December 28, 1999, in Case No. 99-F-175.4 Specifically,

the first count of the information charged Mr. Coles with the felony offense of fraudulent

scheme, which involved obtaining airline tickets in the amount of $3,339, through the use

of worthless checks. The second count charged the felony offense of fraudulent scheme that

involved obtaining items from Sears Department Store in the amount of $2,386.27, through

the use of worthless checks and credit cards. The third count charged the felony offense of

fraudulent scheme that involved obtaining $5,090 from One Valley Bank by making

fraudulent deposits and writing checks on closed accounts. The remaining three counts

charged Mr. Coles with misdemeanor false pretense offenses that involved using five

              3
                  Mr. Coles had made false deposits in the account at United National Bank.
              4
                An “information” is a charging instrument “filed by the prosecutor in lieu of
a presentation of the case to the grand jury.” State v. Kimberly S., 233 W. Va. 5, ___, 754
S.E.2d 581, 583 (2014). Under Rule 7(a) of the West Virginia Rules of Criminal Procedure,
it is provided that, other than “[a]n offense which may be punished by life imprisonment
. . .[,] [a]ny other felony offense may be prosecuted by information if the indictment is
waived.”

                                               2

worthless checks to purchase items from Wal-Mart; cashing several checks from a closed

account at Kroger; and obtaining furniture from Chuck’s Furniture Mart.5

              On the date that the information was filed, December 28, 1999, Mr. Coles

entered into a plea agreement with the State.6 Under the plea agreement, Mr. Coles pled

guilty to two charges under the indictment: obtaining money by false pretenses and

fraudulent scheme. The State agreed, among other things, to dismiss the remaining three

felony charges under the indictment. Mr. Coles also agreed to plead guilty to all six counts

in the information. The circuit court accepted the plea agreement and convicted Mr. Coles

on the same day the agreement was obtained. On March 6, 2000, the circuit court sentenced

Mr. Coles to a combined sentence of not less than three nor more than thirty years

imprisonment.

              In September 2000, Mr. Coles filed a motion to reduce his sentence. Mr. Coles

contended in his motion that he was remorseful, that he was sufficiently punished and that

he had an excellent institutional record. The circuit court denied the motion. In February

2001, Mr. Coles filed a second motion to reduce his sentence. The second motion apparently

argued the same reasons for reduction that were contained in the first motion. The circuit

              5
              The information did not disclose what device was used to obtain the furniture.
Presumably it was through the use of a worthless check or credit card.
              6
                  Mr. Coles was represented by counsel.

                                              3

court denied the second motion. In December 2006, Mr. Coles filed a third motion for

reduction of sentence. The circuit court denied the motion on the grounds that it was filed

beyond the 120 day time period allowed by Rule 35(b) of the West Virginia Rules of

Criminal Procedure.

              Mr. Coles was released on parole in April 2007, and he moved to Pennsylvania.

However, as a result of a felony conviction in the State of Virginia, Mr. Coles’ parole was

revoked, and he was returned to prison in West Virginia in December 2010 to serve out the

balance of his previous plea conviction and sentence.

              In May 2011, Mr. Coles filed his fourth motion to reduce his sentence. The

circuit court denied the motion as outside the time period of Rule 35(b). In November 2011,

Mr. Coles filed a motion to correct his sentence under Rule 35(a) of the West Virginia Rules

of Criminal Procedure.7 In that motion, Mr. Coles contended for the first time that his two

felony convictions under the indictment violated double jeopardy principles. On May 2,

2013, the circuit court entered an order denying the motion to correct sentence. Mr. Coles

subsequently filed a pro se appeal. This Court appointed counsel to represent Mr. Coles. An

amended appellate brief was filed by counsel on behalf of Mr. Coles.

              7
                  Rule 35(a) does not contain a time limitation for filing a motion.

                                                4

                                             II.

                                 STANDARD OF REVIEW

               This is an appeal from an order by the circuit court denying Mr. Coles’ Rule

35(a) motion for correction of his sentence. We apply the following standard of review for

such an order:

                       In reviewing the findings of fact and conclusions of law
               of a circuit court concerning an order on a motion made under
               Rule 35 of the West Virginia Rules of Criminal Procedure, we
               apply a three-pronged 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 clearly
               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).

                                             III.

                                       DISCUSSION

               The principle argument made by Mr. Coles is that, under our decision in State

v. Rogers, 209 W. Va. 348, 547 S.E.2d 910 (2001), his conviction and sentence for false

pretense and fraudulent scheme under the indictment violate the Double Jeopardy Clause of

the state and federal constitutions.8 The State argues that, under United States v. Broce, 488

U.S. 563, 109 S. Ct. 757, 102 L. Ed. 2d 927 (1989), and State v. Proctor, 227 W. Va. 352,

               8
                   No challenge has been made to the conviction and sentence under the
information.

                                              5

709 S.E.2d 549 (2011), Mr. Coles waived his double jeopardy claim. We address the

arguments separately.

                                A. Waiver of Double Jeopardy

              The first issue we will address is the State’s contention that Mr. Coles waived

his double jeopardy claim. The State relies on United States v. Broce, 488 U.S. 563, 109

S. Ct. 757, 102 L. Ed. 2d 927, and State v. Proctor, 227 W. Va. 352, 709 S.E.2d 549, for the

proposition that a double jeopardy claim can be waived. We will examine both cases

separately.

              To begin, in Broce a federal grand jury in Kansas returned an indictment in

1981 charging two defendants, Ray C. Broce and Broce Construction Co., Inc., with

conspiracy to violate the Sherman Act. See 15 U.S.C. § 1.9 In 1982, a second indictment

was returned charging Mr. Broce and the corporation with conspiracy to violate the Sherman

Act. The defendants eventually pled guilty to the two conspiracy charges. The federal

district court sentenced Mr. Broce to concurrent two-year terms of imprisonment and fined

the corporation. A year after the convictions, the defendants filed a motion in the district

court to vacate the convictions under the second indictment on double jeopardy grounds. The

district court denied the motion. The defendants appealed. The Tenth Circuit, in a panel

              9
                  A second count in the indictment charged Mr. Broce with mail fraud.

                                              6

opinion and an en banc opinion, reversed and remanded the case for a factual determination

of whether there was a single transaction rather than two separate conspiracies. On remand

the district court vacated the conspiracy convictions under the second indictment. The

government appealed, but the Tenth Circuit affirmed. The United States Supreme Court

granted certiorari to consider the circumstances under which a federal defendant may attack

a guilty plea conviction and sentence on double jeopardy grounds.

              The decision in Broce made clear that, as a general rule, a claim of double

jeopardy cannot be used to collaterally attack a guilty plea. Broce set out the governing

principles for this issue as follows:

                     A plea of guilty and the ensuing conviction comprehend
              all of the factual and legal elements necessary to sustain a
              binding, final judgment of guilt and a lawful sentence.
              Accordingly, when the judgment of conviction upon a guilty
              plea has become final and the offender seeks to reopen the
              proceeding, the inquiry is ordinarily confined to whether the
              underlying plea was both counseled and voluntary. If the
              answer is in the affirmative then the conviction and the plea, as
              a general rule, foreclose the collateral attack. There are
              exceptions where on the face of the record the court had no
              power to enter the conviction or impose the sentence.

Broce, 488 U.S. at 569, 109 S. Ct. at 762, 102 L. Ed. 2d 927. The opinion in Broce explained

the “lack of power in a court” by citing to the decisions in Blackledge v. Perry, 417 U.S. 21,

94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974), and Menna v. New York, 423 U.S. 61, 96 S. Ct. 241,

46 L. Ed. 2d 195 (1975). See also State v. McGilton, 229 W. Va. 554, 559, 729 S.E.2d 876,

                                              7

881 (2012) (providing an interpretation of Blackledge and Menna). The opinion explained

that under Blackledge and Menna a defendant may attack a plea conviction on double

jeopardy grounds where, “judged on its face – the charge is one which the State may not

constitutionally prosecute.” Broce, 488 U.S. at 575, 109 S. Ct. at 765, 102 L. Ed. 2d 927

(internal quotations and citation omitted).

              The opinion in Broce concluded that the guilty pleas by the defendants were

counseled and voluntary. Therefore, the convictions could not be collaterally attacked on

double jeopardy grounds. It was further determined that the face of the record10 failed to

show that the lower court did not have power to convict and sentence the defendants:

                      Respondents . . . pleaded guilty to indictments that on
              their face described separate conspiracies. They cannot prove
              their claim by relying on those indictments and the existing
              record. Indeed, as noted earlier, they cannot prove their claim
              without contradicting those indictments, and that opportunity is
              foreclosed by the admissions inherent in their guilty pleas.

Broce, 488 U.S. at 576, 109 S. Ct. at 766, 102 L. Ed. 2d 927. The opinion went on to reverse

the judgment of the Tenth Circuit.11 See State v. Armstrong, 904 P.2d 578 (Idaho Ct.

              10
                Under Broce, “face of the record” means evaluating a claim of lack of power
in the court based upon the existing record, without the introduction of new evidence.
              11
                “[B]ecause Broce explains the effect of guilty pleas in the federal criminal
justice system, it is not binding precedent on [state] court[s].” State v. Kelty, 716 N.W.2d
886, 894 (Wis. 2006). See also Commonwealth v. Negron, 967 N.E.2d 99, 102 (Mass. 2012)
(“The rule of relinquishment articulated in Broce is not constitutional in nature but is a
procedural bar under Federal common law, which does not govern State procedural law.”).

                                              8

App. 1995) (applying Broce); Commonwealth v. Negron, 967 N.E.2d 99 (Mass. 2012)

(same); State v. Anderson, 258 P.3d 1244 (Ore. Ct. App. 2011) (same); State v. Kelty, 716

N.W.2d 886 (Wis. 2006) (same).

               The decision in Broce makes clear, and we so hold, that if a guilty plea is

shown to have been intelligently and voluntarily entered into,12 generally it cannot be directly

or collaterally attacked on double jeopardy grounds.13 One exception to this rule permits a

defendant to show that the face of the record in the case establishes that a court lacked power

to convict or sentence the defendant. See State v. Greene, 196 W. Va. 500, 505, 473 S.E.2d

921, 926 (1996) (Cleckley, J., concurring) (“If any principle is well settled in this State, it is

that, in the absence of special circumstances, a guilty plea waives all antecedent

constitutional and statutory violations save those with jurisdictional consequences.”).

               Under the authority of Broce, Mr. Coles is limited to showing that his guilty

plea was not entered into intelligently and voluntarily. Mr. Coles has not made such a

showing. In fact, the limited record in this case would not permit such an analysis because

Mr. Coles did not include a transcript of the hearing in which his plea was accepted by the

               12
                    We use the term “intelligently” to include advice of counsel.
               13
                 “A guilty plea waives a [double jeopardy] claim anytime the claim cannot be
resolved on the record, regardless whether a case presents on direct appeal or collateral
attack.” State v. Kelty, 716 N.W.2d 886, 895-96 (Wis. 2006).

                                                 9

court. Moreover, Mr. Coles has not argued that the face of the limited record in this case

shows that the circuit court did not have power to enter a conviction or impose a sentence

under the indictment for the false pretense and fraudulent scheme charges. Even if such an

argument were made, it would be unavailing. The face of the limited record in this case, i.e.,

the indictment, does not reveal a lack of jurisdiction over the offenses of false pretense and

fraudulent scheme.14 Moreover, at the time the circuit court accepted Mr. Coles’ guilty plea

              14
                   The false pretense and fraudulent scheme counts of the indictment were set
out as follows:

                      COUNT TWO: The Grand Jurors of the State of West
              Virginia, in and for the body of the County of Monongalia, upon
              their oaths, charge that STEPHEN WILLIAMS aka MITCHELL
              COLES, on or about the 20th day of July 1998, in Monongalia
              County, West Virginia, committed the offense of “Obtaining
              Money By False Pretenses” by unlawfully, feloniously,
              knowingly, and with the intent to defraud, obtaining money, by
              presenting check #117 in the amount of One Thousand Five
              Hundred Dollars ($1,500.00) to One Valley Bank, drawn on a
              United National Bank account, having made false deposits to the
              account to reflect an existing balance when no funds were
              available, in violation of W. Va. Code 61-3-21, as amended,
              against the peace and dignity of the State.

                      COUNT FIVE: The Grand Jurors of the State of West
              Virginia, in and for the body of the County of Monongalia, upon
              their oaths, charge that STEPHEN WILLIAMS aka MITCHELL
              COLES, during July and August, 1998 in Monongalia County,
              West Virginia, committed the offense of “Fraudulent Scheme”
              by unlawfully, intentionally, willfully and feloniously depriving
              another person of any money, goods, property or services by
              means of fraudulent pretenses, representations or promises, of
              a total value in excess of One Thousand Dollars ($1,000.00), as
                                                                                (continued...)

                                               10

and sentenced him, no decision of this Court had been rendered which would preclude a

sentence and conviction for false pretense and fraudulent scheme.15

              Mr. Coles suggests that our decision in State v. Greene, 196 W. Va. 500, 473

S.E.2d 921 (1996), supports setting aside his fraudulent scheme conviction on double

jeopardy grounds. We disagree. In Greene, the defendant’s property was confiscated by the

State in a forfeiture proceeding. After the forfeiture proceeding terminated, the defendant

was indicted on a felony drug charge. The defendant pled guilty to a reduced drug charge.

Subsequently, the defendant filed a motion for correction of sentence. The defendant argued

that his sentence violated double jeopardy. The circuit court denied the motion. On appeal,

the majority opinion never mentioned the decision in Broce. Instead, the majority opinion

focused upon whether the forfeiture proceeding was civil or criminal. After determining that

the forfeiture proceeding was civil, the majority opinion concluded that double jeopardy

protections did not apply to civil proceedings. In the concurring opinion by Justice Cleckley,

he addressed the application of Broce. Justice Cleckley noted that Broce was not applicable

to the facts in Greene because the defendant was not challenging whether he was guilty of

              14
               (...continued)

              part of a common scheme or plan, in violation of W. Va. Code

              61-3-24d, as amended, against the peace and dignity of the

              State.

              15
              The decision in State v. Rogers, 209 W.Va. 348, 547 S.E.2d 910 (2001), was
rendered approximately a year after Mr. Coles’ conviction and sentence.

                                             11

the drug charge. Instead, he was challenging whether he already was punished for his

conduct through the forfeiture proceeding. Neither the majority opinion, nor Justice

Cleckley’s observations in Greene, have application to Mr. Coles’ conviction and sentence

for false pretense and fraudulent scheme. Nothing in the record in this case shows that Mr.

Coles was previously convicted and punished for conduct that formed the bases of the false

pretense and fraudulent scheme charges.

              The State also contends that the general contract principles discussed in State

v. Proctor, 227 W. Va. 352, 709 S.E.2d 549 (2011), prevent Mr. Coles from attacking his

guilty plea.16 In Proctor, the defendant entered a plea of guilty to the crimes of sexual abuse

and sexual abuse by a guardian. The defendant later filed a motion to reduce his sentence.

The circuit court denied the motion. On appeal, the defendant argued “that his convictions

for both first degree sexual abuse and sexual abuse by a parent, guardian or custodian are a

violation of double jeopardy.” Proctor, 227 W. Va. at 357, 709 S.E.2d at 554.17 The Court

rejected the argument for two reasons. First, it was noted in Proctor that this Court

previously had ruled in State v. Gill, 187 W. Va. 136, 416 S.E.2d 253 (1992), that a

conviction and sentence for both sexual abuse and sexual abuse by a guardian did not violate

              16
                   The State relied on Proctor in its Summary Response to Mr. Coles’ pro se
brief.
              17
                   The defendant made a second argument which is not relevant.

                                              12

the Double Jeopardy Clause. The opinion also noted that the defendant did not present any

compelling reason why the Court should revisit Gill.

              The second reason cited by Proctor for denying the defendant’s double

jeopardy claim was that the defendant “waived this assignment of error.” Proctor, 227

W. Va. at 362, 709 S.E.2d at 559. Although the opinion cited to the decision in Broce, it did

not rely on the waiver grounds recognized in that decision. See Proctor, 227 W. Va. at 363

n.18, 709 S.E.2d at 560 n.18. Instead, Proctor relied upon general contract principles that

underlie plea agreements:

              [T]his court has explained that a plea agreement is subject to the
              principles of contract law insofar as its application insures that
              a defendant receives that to which he or she is reasonably
              entitled. In State ex rel. Gardner v. West Virginia Div. of
              Corrections, 210 W. Va. 783, 786, 559 S.E.2d 929, 932 (2002),
              this Court explained:

                            We have recognized that “[a]s a matter of
                     criminal jurisprudence, a plea agreement is
                     subject to principles of contract law insofar as its
                     application insures a defendant receives that to
                     which he is reasonably entitled.” State ex rel.
                     Brewer v. Starcher, 195 W. Va. 185, 192, 465
                     S.E.2d 185, 192 (1995). Such agreements require
                     “ordinary contract principles to be supplemented
                     with a concern that the bargaining and execution
                     process does not violate the defendant’s right to
                     fundamental fairness[.]” State v. Myers, 204
                     W. Va. 449, 458, 513 S.E.2d 676, 685 (1998).

                    Likewise, “When a defendant enters into a valid plea
              agreement with the State that is accepted by the trial court, an

                                             13

              enforceable ‘right’ inures to both the State and the defendant not
              to have the terms of the plea agreement breached by either
              party.” Syllabus Point 4, State v. Myers, 204 W. Va. 449, 513
              S.E.2d 676 (1998).

                      In the case at hand, the appellant was represented by
              counsel. He entered a plea of guilty to the offenses discussed
              herein and he was sentenced within permissible statutory limits.
              He stated that he understood the charges against him and his
              counsel stated that he had thoroughly explained the charges to
              the appellant. He voluntarily entered into the plea agreement, he
              does not deny his guilt, and he does not challenge the validity of
              his guilty plea. . . . At no point in any hearing did the
              appellant’s counsel make a single reference to the possibility of
              double jeopardy for the appellant’s guilty plea to both charges
              or to the fact that he would receive separate sentences for both
              crimes. In fact, the only argument during the sentencing hearing
              by the appellant’s counsel was that the appellant be sentenced
              concurrently for both crimes. . . . This Court is not persuaded by
              the appellant’s counsel’s argument on this matter as the
              appellant waived this assignment of error by entering a guilty
              plea to both crimes.

Proctor, 227 W. Va. at 362-63, 709 S.E.2d at 559-60.

              We find that Proctor’s contract analysis is equally applicable under the facts

of this case. The plea agreement submitted with the record in this case reveals that Mr. Coles

and the State each made concessions in resolving the charges under the indictment. The

State agreed to drop three felony counts in the indictment. Mr. Coles agreed to plead guilty

to two felony counts in the indictment in exchange for the State dropping the three felony

counts. More than ten years after this mutual and voluntary agreement Mr. Coles now seeks

to violate that agreement by having the fraudulent scheme conviction vacated, while

                                             14

simultaneously keeping intact that part of the plea agreement that required dismissal of the

other three felony charges. Even if we had found that Mr. Coles did not waive the double

jeopardy claim, we would not fashion such a blatantly unfair remedy against the State.

Simply put, Mr. Coles “should not be allowed to retain the benefits of the agreement while

raising double jeopardy as a bar to fulfillment of his obligations under the agreement.” State

v. Armstrong, 904 P.2d 578, 580 (Idaho Ct. App. 1995). In the final analysis, Mr. Coles

waived his double jeopardy claim under Broce and Proctor.18

                               B. Revisiting State v. Rogers

              Mr. Coles has correctly argued that our decision in State v. Rogers, 209 W. Va.

348, 547 S.E.2d 910, found that double jeopardy principles precluded convicting and

sentencing a defendant for false pretense and fraudulent scheme based upon conduct arising

              18
                 The circuit court determined that double jeopardy did not apply because Mr.
Coles’ crimes were against numerous victims. Although we reject the grounds relied upon
by the circuit court, we are free to affirm on different grounds. See Syl. pt. 3, Barnett v.
Wolfolk, 149 W. Va. 246, 140 S.E.2d 466 (1965) (“This Court may, on appeal, affirm the
judgment of the lower court when it appears that such judgment is correct on any legal
ground disclosed by the record, regardless of the ground, reason or theory assigned by the
lower court as the basis for its judgment.”). Accord State v. Payne, 225 W. Va. 602, 611, 694
S.E.2d 935, 944 (2010) (affirming trial court ruling for grounds different than those relied
upon by the lower court); State v. Lockhart, 208 W. Va. 622, 636 n.15, 542 S.E.2d 443, 457
n.15 (2000) (“The fact that the circuit court may have rejected Dr. Coffey’s testimony for
reasons different than those expressed in this opinion is of no consequence.”); State v.
Boggess, 204 W. Va. 267, 276, 512 S.E.2d 189, 198 (1998) (“Consequently, it is apparent
that the trial court made the right ruling for the wrong reason. . . . Hence, even though,
contrary to the trial court’s reasoning, . . . the evidence still was properly excluded”).

                                             15

out of the same transaction or occurrence. Insofar as we have determined that Mr. Coles

waived his double jeopardy argument, he cannot invoke the protections of Rogers. Even

though Mr. Coles cannot rely on Rogers, we take this opportunity to revisit the legal

soundness of this opinion.

              Before reexamining Rogers we wish to be clear that we are cognizant of the

impact of stare decisis on the decisions of this Court. “[T]he doctrine of stare decisis

requires this Court to follow its prior opinions.” State Farm Mut. Auto. Ins. Co. v.

Rutherford, 229 W. Va. 73, 83, 726 S.E.2d 41, 51 (2011) (Davis, J., concurring, in part, and

dissenting, in part). We have held that “[a]n appellate court should not overrule a previous

decision recently rendered without evidence of changing conditions or serious judicial error

in interpretation sufficient to compel deviation from the basic policy of the doctrine of stare

decisis, which is to promote certainty, stability, and uniformity in the law.” Syl. pt. 2, Dailey

v. Bechtel Corp., 157 W. Va. 1023, 207 S.E.2d 169 (1974). Moreover,

              [s]tare decisis . . . is a matter of judicial policy. . . . It is a policy
              which promotes certainty, stability and uniformity in the law. It
              should be deviated from only when urgent reason requires
              deviation. . . . In the rare case when it clearly is apparent that an
              error has been made or that the application of an outmoded rule,
              due to changing conditions, results in injustice, deviation from
              that policy is warranted.

Woodrum v. Johnson, 210 W. Va. 762, 766 n.8, 559 S.E.2d 908, 912 n.8 (2001) (internal

quotations and citations omitted). While “this Court is loathe to overturn a decision so

                                                 16

recently rendered, it is preferable to do so where a prior decision was not a correct statement

of law.” Murphy v. Eastern Am. Energy Corp., 224 W. Va. 95, 101, 680 S.E.2d 110, 116

(2009). As discussed below, Rogers misapplied basic cannons of statutory construction in

its determination that (1) the Legislature did not express a clear intent on whether a defendant

may be punished for both false pretense and fraudulent scheme, and (2) false pretense and

fraudulent scheme contained the same elements.

              The defendant in Rogers was convicted and sentenced for the crimes of false

pretense, embezzlement, and two counts of fraudulent scheme. The defendant in Rogers

attacked his conviction on sufficiency of the evidence and other grounds. However, as

pointed out by the dissenting opinion in Rogers, “the majority opinion . . . utilized

constitutional double jeopardy principles to analyze the issues in this case when the

defendant did not invoke double jeopardy as a basis for challenging the convictions and

sentences.” Rogers, 209 W. Va. at 363, 547 S.E.2d at 925 (Davis, J., dissenting). In

reexamining Rogers’ pronouncements on false pretense and fraudulent scheme, we perform

an independent analysis.19

              19
               In addition to finding the convictions for false pretense and fraudulent scheme
violated double jeopardy, the decision in Rogers also concluded that the convictions for
embezzlement and fraudulent scheme violated double jeopardy.

                                              17

              The Double Jeopardy Clause of the Fifth Amendment of the federal

constitution provides that no person shall be “subject for the same offense to be twice put in

jeopardy of life or limb[.]” This clause affords three separate constitutional protections for

criminal defendants:

                     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.

North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656 (1969),

overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104

L. Ed. 2d 865 (1989). In Conner v. Griffith, 160 W. Va. 680, 238 S.E.2d 529 (1977), we

explained that the protections provided for in the Double Jeopardy Clause in Article III,

Section 5 of the state constitution were at least as coextensive as those in the Fifth

Amendment.20 In Syllabus point 1 of Conner, we summarized our double jeopardy

principles:

                      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.

160 W. Va. 680, 238 S.E.2d 529.

              20
                  Article III, Section 5 of the state constitution provides, in part: “No person
shall . . . be twice put in jeopardy of life or liberty for the same offence.”

                                              18

              The issue in the Rogers case involved the third component of the Double

Jeopardy Clause, which protects against multiple punishments for the same offense. The

United States Supreme Court has observed that, “[w]ith respect to cumulative sentences

imposed in a single trial, the Double Jeopardy Clause does no more than prevent the

sentencing court from prescribing greater punishment than the legislature intended.”

Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 678, 74 L. Ed. 2d 535 (1983). In

other words, if the Legislature has made clear that separate punishments may be imposed

under different statutes for the same criminal conduct, the Double Jeopardy Clause will not

prevent such punishment. Therefore, “the first step in the double jeopardy analysis is to

determine whether the legislature . . . intended that each violation be a separate offense.”

Garrett v. United States, 471 U.S. 773, 778, 105 S. Ct. 2407, 2411, 85 L. Ed. 2d 764 (1985).

We have previously summarized the analysis to be used as follows:

                      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).

                                             19

              With respect to statutory construction, we have indicated that “[t]he basic and

cardinal principle, governing the interpretation and application of a statute, is that the Court

should ascertain the intent of the Legislature at the time the statute was enacted, and in the

light of the circumstances prevailing at the time of the enactment.” Syl. pt. 1, Pond Creek

Pocahontas Co. v. Alexander, 137 W. Va. 864, 74 S.E.2d 590 (1953). Moreover, “[w]here

the meaning of a statute is clear and its provisions are unambiguous, this Court will not

undertake to construe and interpret it, but will apply the statute as its exact terms require.”

Syl. pt. 2, Pond Creek, id.

              The controlling statute for our analysis is the fraudulent scheme offense which

is set out under W. Va. Code § 61-3-24d (1995) as follows:21

                     (a) Any person who willfully deprives another of any
              money, goods, property or services by means of fraudulent
              pretenses, representations or promises shall be guilty of the
              larceny thereof.

                       (b) In determining the value of the money, goods,
              property or services referred to in subsection (a) of this section,
              it shall be permissible to cumulate amounts or values where such
              money, goods, property or services were fraudulently obtained
              as part of a common scheme or plan.

                     (c) A violation of law may be prosecuted under this
              section notwithstanding any other provision of this code.

              21
             The statute is worded the same as it was when the Rogers decision was
handed down. The statute has not been amended since its enactment in 1995.

                                              20

              The legislative intent regarding a prosecution for fraudulent scheme is clearly

set out under W. Va. Code § 61-3-24d(c). This provision states without qualification that a

defendant may be prosecuted under it “notwithstanding any other provision of this code.”

The decision in Rogers tersely found that this provision did not express a legislative intent

to allow a separate punishment for fraudulent scheme. Rogers addressed the matter

summarily as follows:

                     While this language appears to suggest, at first blush, that
              the Legislature thereby intended to make violation of this statute
              punishable as a separate and distinct crime, we conclude
              otherwise based on the fact that the language at issue fails to
              constitute a clear and definite statement of such an intent.

Rogers, 209 W. Va. at 357, 547 S.E.2d at 919. This statement by Rogers is a mere

conclusion without any accompanying analysis to explain how such a conclusion was

reached. As the dissent in Rogers pointed out:

                      Disregarding the clarity of the legislature’s intent as
              embodied in W. Va. Code § 61-3-24d(c), the majority opinion
              makes the unconscionable conclusion “that the language at issue
              fails to constitute a clear and definite statement of such an
              intent.” The majority’s conclusion is wrong. What more could
              the legislature have done to express its clear intent to permit
              prosecution under W. Va. Code § 61-3-24d, regardless of any
              other offense charged?

Rogers, 209 W. Va. at 364, 547 S.E.2d at 926 (Davis, J., dissenting). The dissent also made

the following observations:

                     The false pretense offense dates back to 1849, when West
              Virginia was part of Virginia. The fraudulent scheme offense
              was created in 1995. Clearly, if nothing else, the dates of the

                                              21

              creation of the offenses should inform the majority that the
              legislature intended to create separate punishable offenses.

Rogers, 209 W. Va. at 364 n.2, 547 S.E.2d at 926 n.2 (Davis, J., dissenting). Consequently,

we adopt the sound reasoning of the dissent in Rogers.

              Insofar as it is clear to this Court that the Legislature intended to allow

punishment for a fraudulent scheme offense, in addition to any other offense, we need not

perform a Blockburger analysis to discern whether false pretense and fraudulent scheme each

contain a different element of prosecution.

              In sum, and we so hold, the Legislature has made clear that the fraudulent

scheme offense under W. Va. Code § 61-3-24d (1995) (Repl. Vol. 2010) is a separate offense

that may be prosecuted in addition to any other offense under the Code. Therefore, double

jeopardy principles do not preclude a conviction and sentence for a fraudulent scheme

offense, in addition to a conviction and sentence for any other offense arising out of the same

transaction or occurrence. The decision in State v. Rogers, 209 W. Va. 348, 547 S.E.2d 910

(2001), which holds to the contrary, is overruled in its entirety.

                                              22

                                          IV.

                                   CONCLUSION

             In view of the foregoing, the circuit court’s order entered on May 2, 2013,

denying Mr. Coles’ Motion for Correction of Sentence, is affirmed.

                                                                              Affirmed.

                                          23