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(2009), is inconsistent, it is hereby modified.
ii
Armstead, Justice:
Petitioner Robert Lee Lewis appeals the circuit court’s denial of relief on his
petition for writ of habeas corpus. Petitioner asserts three main arguments: (1) Petitioner
was unconstitutionally convicted of a crime not included in the indictment; (2) both
Petitioner’s trial and direct appeal counsel were ineffective for not raising the unindicted
acts error; and, (3) Petitioner’s sentences are unconstitutionally disproportionate.
We have reviewed the entire record before us, and for the reasons stated
below, we find no error.
I. FACTUAL AND PROCEDURAL BACKGROUND
This matter represents Petitioner’s second habeas corpus petition that has
made its way to this Court. See State ex rel. Lewis v. Ballard, No. 12-0137,

2013 WL 1286150

(W. Va. March 29, 2013)(memorandum decision). We would also note that
Petitioner has filed another appeal with this Court challenging his sentence,1 but such
appeal is not currently before us.
Petitioner was convicted of: (1) burglary by entering without breaking; (2)
second degree sexual assault; and, (3) based upon a jury instruction Petitioner offered at
1
State of West Virginia v. Robert Lee Lewis, West Virginia Supreme
Court of Appeals Docket Number 19-0121.
1
trial, and objected to by the State, abduction with intent to defile as a lesser included offense
of kidnapping. The facts of this matter are disturbing, and are set forth in great detail in
this Court’s prior opinion in State v. Lewis,

235 W. Va. 694

776 S.E.2d 591

(2015). For
purposes of this appeal, a complete restatement of those facts is unnecessary. However,
we will briefly highlight some of the salient facts supporting Petitioner’s conviction.
Petitioner, who had a domestic violence protective order against him
prohibiting contact with his ex-girlfriend, knocked on the door of his ex-girlfriend’s
apartment, and pretended to be someone else. See id.,

235 W. Va. 694

, 698,

776 S.E.2d 591

, 595. This induced his ex-girlfriend to open her door. See

id. Petitioner then

forced
his way into the apartment, chased his ex-girlfriend, grabbed her, carried her out of her
apartment, and took her a few blocks away to an unoccupied apartment. See

id. At this

unoccupied apartment, Petitioner proceeded to forcibly engage in vaginal intercourse with
her. See

id. After a

period of time, she escaped and ran back to her apartment. See id.,

235 W. Va. 694

, 698-699,

776 S.E.2d 591

, 595-596. Petitioner followed her and sat on her
front steps until the police arrived and took him into custody. See id.,

235 W. Va. 694

,
699,

776 S.E.2d 591

, 596.
Following his convictions, the State filed a recidivist information, alleging
Petitioner had been previously convicted of a felony. See

id. The jury

found “[P]etitioner
2
‘guilty of having been twice convicted of a crime punishable by confinement in a
penitentiary as contained in the recidivist information.’”

Id. Petitioner was

then sentenced to the penitentiary for a term of:
[O]ne to fifteen years for burglary; three to ten years for
abduction with intent to defile; and twelve months for violating
the domestic violence protective order.2 In addition, based on
the recidivist conviction, the trial court enhanced the
petitioner’s sentence for second degree sexual assault by
increasing the statutory ten to twenty-five year term of
imprisonment to twenty to twenty-five years, as provided for
in West Virginia Code § 61–11–18 (2014), the recidivist
sentencing statute. The trial court also ordered all sentences to
be served consecutively with the exception of the twelve-
month sentence, which was ordered to run concurrently with
the other sentences.
Id.,

235 W. Va. 694

, 699-700,

776 S.E.2d 591

, 596-597 (internal footnote omitted, footnote
“2” added).
Initially, Petitioner filed no direct appeal to this Court. However, on January
4, 2012, he filed his first petition for writ of habeas corpus in Kanawha County Circuit
Court. Without a hearing, the circuit court denied that petition. Petitioner appealed that
denial to this Court, and this Court issued a memorandum decision in State ex rel. Lewis v.
Ballard, No. 12-0137,

2013 WL 1286150

(W. Va. March 29, 2013)(memorandum
decision). In that memorandum decision, this Court remanded that habeas for hearing on
the issue of whether there was ineffective assistance of counsel for failing to file a direct
2
Prior to trial, Petitioner entered a guilty plea to the charge of violating
a domestic protection order. See Lewis,

235 W. Va. 694

, 699,

776 S.E.2d 591

, 596.
3
appeal. See

id., at *1-2.

On remand, the circuit court entered an Agreed Order Granting
in Part and Denying In Part Petition for Writ of Habeas Corpus finding that trial counsel
was ineffective for not filing a direct appeal. As a result of this finding, the circuit court
resentenced Petitioner and dismissed all other claims as moot.
The resentencing of Petitioner allowed him to timely file a direct appeal to
this Court. In that appeal, he raised six issues:
The petitioner seeks to set aside his conviction for abduction
with intent to defile on the basis that the criminal offense set
forth in West Virginia Code § 61–2–14(a) (2014) is
unconstitutionally vague. He challenges his convictions for
abduction with intent to defile and second degree sexual assault
on grounds of double jeopardy. The petitioner’s remaining
assignments of error allege an insufficiency of the State’s
evidence to convict him of the crimes of burglary and second
degree sexual assault, the inadequacy of the jury instruction on
abduction with intent to defile, and errors related to his
recidivist conviction and sentencing.
Lewis,

235 W. Va. 694

, 698,

776 S.E.2d 591

, 595 (2015). Importantly, all grounds raised
in that appeal were previously and finally adjudicated on the merits by the opinion issued
by this Court in 2015. See

id. and W. Va.

Code § 53-4A-1(b)(1967). Some of those
grounds will be further discussed below.
Following his direct appeal, Petitioner filed a petition for writ of habeas
corpus in the United States District Court for the Southern District of West Virginia. See
Lewis v. Ballard, Civil Action No. 2:16-CV-03194, 2017 WL 927231(S. D. W. Va., March
4
8, 2017)(not reported in Fed. Supp.). The District Court dismissed Petitioner’s petition on
the grounds that he had failed to exhaust state remedies. See

id., at *1.

Petitioner then filed this second habeas corpus petition in Kanawha County
Circuit Court. In this pro se petition, he raised four grounds:
(1) Petitioner was denied due process of law as secured by the
Fifth, Sixth, Eighth and Fourteenth Amendments to the U.S.
Constitution when Petitioner was convicted and sentenced for
violating W. Va. Code § 61-2-14(a);
(2) Petitioner was denied due process of law as secured by the
Fifth, Eighth, and Fourteenth Amendments to the U.S.
Constitution when he was tried, convicted and sentenced for
burglary;
(3) Petitioner was denied due process of law when the Circuit
Court of Kanawha County determined Petitioner had a prior
felony conviction and enhanced Petitioner’s sentence of sexual
assault in the Second Degree, as requested by the State, rather
than the burglary sentence; and,
(4) Petitioner was denied due process of law as secured by the
Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S.
Constitution when the jury was not instructed on the lesser
included offenses of battery, sexual misconduct, and sexual
abuse in the First Degree.
The circuit court, pursuant to Rule 4(c) of the West Virginia Rules Governing
Post Conviction Habeas Corpus Proceedings, summarily dismissed this petition, finding
with respect to each ground raised:
(1) Petitioner’s ground one asserts an ordinary trial error, an
improper jury instruction, for [sic] which he failed to raise on
direct appeal, and is thereby waived.
5
(2) Petitioner’s ground two was previously and finally
adjudicated upon direct appeal before the Supreme Court of
Appeals of West Virginia in State v. Lewis,

235 W. Va. 694

776 S.E.2d 591

(2015).
(3) Petitioner’s ground three was previously and finally
adjudicated upon direct appeal before the Supreme Court of
Appeals of West Virginia in State v. Lewis,

235 W. Va. 694

776 S.E.2d 591

(2015).
(4) Petitioner’s ground four asserts an ordinary trial error, an
improper jury instruction, for [sic] which he failed to raise on
direct appeal, and is thereby waived.
In this pro se appeal from that order, Petitioner raised the following grounds:
(1)Was [P]etitioner denied due process of law as secured by
the [Fifth, Sixth, Eighth, and Fourteenth] Amendments to the
U.S. Constitution when [P]etitioner was convicted and
sentenced for violating W. Va. Code § 61-2-14(a) . . . ?
(2) Are the consecutive sentences imposed on [P]etitioner by
the Circuit Court of Kanawha County . . . , a disproportionate
sentence and contrary to this Court’s ruling in State v. Davis. .
.?
(3) Is [P]etitioner’s conviction for [a]bduction with intent to
defile the result of constructive amendment of the kidnapping
indictment, and, therefore a violation of [the Fifth and
Fourteenth] Amendments to the U.S. Constitution, and
Art[icle] III, §§ 4 [and] 10 of the Constitution of West
Virginia?
(4) Was Petitioner denied effective assistance of counsel when
Mr. Sullivan asked the judge to instruct the jury on the
elements of [a]bduction, a violation of W. Va. Code § 61-11-
14(a), despite the fact that the indictment did not allege
defendant had abducted [the victim] with the intent to marry or
defile her, a violation of the [Fifth, Sixth, and Fourteenth]
6
Amendments to the U.S. Constitution and Art[icle] III, §§ 4,
10, [and] 14 of the [West Virginia] Constitution?
Upon review of this appeal, this Court sua sponte appointed appellate counsel
for Petitioner and ordered supplemental briefing on the issue of whether abduction with
intent to defile is a lesser included offense of kidnapping. Following review of the entire
record, we find that the errors raised in this appeal were either not raised below and
therefore waived, or were previously and finally adjudicated on the merits and not clearly
wrong. See W. Va. Code § 53-4A-1 (1967).
II. STANDARD OF REVIEW
“In reviewing challenges to the findings and conclusions of the circuit court
in a habeas corpus action, we apply a three-prong standard of review. We review the final
order and the ultimate disposition under an abuse of discretion standard; the underlying
factual findings under a clearly erroneous standard; and questions of law are subject to a
de novo review.” Syllabus Point 1, Mathena v. Haines,

219 W. Va. 417

633 S.E.2d 771

(2006).
III. ANALYSIS
This matter is an appeal of the circuit court’s summary disposition of
Petitioner’s second petition for habeas corpus. The procedures for filing a habeas corpus
7
petition were established by our Legislature in 1967. See W. Va. Code §§ 53-4A-1-11
(1967). “A habeas corpus proceeding is not a substitute for a writ of error in that ordinary
trial error not involving constitutional violations will not be reviewed.” Syllabus Point 4,
State ex rel. McMannis v. Mohn,

163 W. Va. 129

254 S.E.2d 805

(1979). Further,
Habeas corpus serves as a collateral attack upon a
conviction under the claim that the conviction was obtained in
violation of the state or federal constitution. While our
legislature, through the enactment of W. Va. Code, 1931, 53-
4A-1 through 11, as amended has provided a broad and
effective post-conviction review, we still maintain a
distinction, so far as post-conviction remedy is concerned,
between plain error in a trial and error of constitutional
dimensions. Only the latter can be a proper subject of a habeas
corpus proceeding.
Edwards v. Leverette,

163 W. Va. 571

, 576,

258 S.E.2d 436

, 439 (1979).
Two errors raised in this appeal were not raised in the habeas petition when
it was filed in the circuit court. Those errors allege a due process violation stemming from
Petitioner’s burglary conviction and ineffective assistance of counsel of both trial and
appellate counsel. West Virginia Code § 53-4A-1(c) provides:
For the purposes of this article, a contention or
contentions and the grounds in fact or law relied upon in
support thereof shall be deemed to have been waived when the
petitioner could have advanced, but intelligently and
knowingly failed to advance, such contention or contentions
and grounds before trial, at trial, or on direct appeal (whether
or not said petitioner actually took an appeal), or in a
proceeding or proceedings on a prior petition or petitions filed
under the provisions of this article, or in any other proceeding
or proceedings instituted by the petitioner to secure relief from
his conviction or sentence, unless such contention or
8
contentions and grounds are such that, under the Constitution
of the United States or the Constitution of this state, they
cannot be waived under the circumstances giving rise to the
alleged waiver. When any such contention or contentions and
grounds could have been advanced by the petitioner before
trial, at trial, or on direct appeal (whether or not said petitioner
actually took an appeal), or in a proceeding or proceedings on
a prior petition or petitions filed under the provisions of this
article, or in any other proceeding or proceedings instituted by
the petitioner to secure relief from his conviction or sentence,
but were not in fact so advanced, there shall be a rebuttable
presumption that the petitioner intelligently and knowingly
failed to advance such contention or contentions and grounds.
W. Va. Code § 53-4A-1 (1967). “Under the provisions of Chapter 53, Article 4A, Code of
West Virginia, 1931, as amended, commonly known as ‘Post-Conviction Habeas Corpus,’
there is a rebuttable presumption that petitioner intelligently and knowingly waived any
contention or ground in fact or law relied on in support of his petition for habeas corpus
which he could have advanced on direct appeal but which he failed to so advance.”
Syllabus Point 1, Ford v. Coiner,

156 W. Va. 362

196 S.E.2d 91

(1972). In addition, our
law clearly supports the proposition that any grounds not raised in the petition for habeas
corpus are deemed waived. See generally Losh v. McKenzie, 166 W.Va. 762,

277 S.E.2d 606

(1981). Accordingly, because Petitioner did not raise either of these issues in the
circuit court, we find that these claims are waived.
We do, however, believe that because Petitioner has argued both here and
below that there were procedural due process errors relating to his conviction on the
unindicted crime of abduction with intent to defile, he has preserved this alleged error for
9
habeas review. It is undisputed that Petitioner was indicted on the crime of kidnapping.
See W. Va. Code § 61-2-14a (1999).3 Yet, he was convicted of an unindicted offense –
abduction with intent to defile – the elements of which Petitioner requested the jury be
instructed as a lesser included offense to kidnapping. See W. Va. Code § 61-2-14 (1984).
We have previously held in Syllabus Point 13 of State v. Fortner,

182 W. Va. 345

387 S.E.2d 812

(1989), that “[t]he crimes of abduction with intent to defile, W. Va. Code, 61-
2-14 (1984), and kidnapping with intent to avoid arrest, W. Va. Code, 61-2-14a (1965), are
separate offenses.”    Although Petitioner convinced the circuit court to give a jury
instruction as if the crime of abduction with intent to defile is a lesser included offense of
kidnapping, in their briefing to this Court, the parties now agree that the crime of abduction
with intent to defile is not a lesser included offense of kidnapping.
Even so, on direct appeal, this Court previously found that Petitioner, by
offering the jury instruction at issue, waived any error:
We also find that the petitioner waived any error regarding this
jury instruction. As we stated in Lease v. Brown, 196 W.Va.
485,

473 S.E.2d 906

(1996), when a defendant submits the
instruction, “any error stemming from its inclusion in the case
has either been waived or deemed ‘invited error.’ “

Id. at 488,

              473 S.E.2d at 909 (internal citation omitted). Moreover, “[n]o
party may assign as error the giving or the refusal to give an
instruction ... unless that party objects thereto before the
arguments to the jury are begun, stating distinctly the matter to
which that party objects and the grounds of the objection[.]”
W.Va. R.Crim. P. 30, in part.
3
The 1999 version of this statute is applicable to this appeal.
10
Lewis,

235 W. Va. 694

, 703 n.24,

776 S.E.2d 591

, 600 n.24 (2015). This waiver was the
direct result of the jury instruction at issue being offered by Petitioner:
[H]e specifically requested that the jury be instructed on
abduction with intent to defile, as a lesser included offense of
kidnapping. Moreover, the record reflects that the petitioner
approved the verdict form that allowed for a guilty verdict on
both abduction with intent to defile and second degree sexual
assault. Consequently, the petitioner cannot now complain of
his tactical decision. Even if waiver were not evident from the
record in this case, we nonetheless find no error.
Id.,

235 W. Va. 694

, 702,

776 S.E.2d 591

, 599.
Clearly, these findings in Lewis “previously and finally adjudicated . . . on
the merits” all issues regarding this jury instruction. W. Va. Code § 53-4A-1(b)(1967).
However, even if a contention has been previously and finally adjudicated on the merits,
Petitioner could still be entitled to habeas relief, if “said decision upon the merits is clearly
wrong.”

Id. To determine

if our prior decision in Lewis was clearly wrong, we therefore
must examine Lewis in light of the allegation raised in this appeal regarding this jury
instruction. As we discuss below, we believe that our prior reasoning was sound, and
Petitioner, by inviting and benefiting from the error he created, is not entitled to relief on
this issue.
We begin our discussion of this issue by noting that on a direct appeal, “[a]
defendant in a criminal case cannot invite the trial court to give an instruction on a lesser
included offense, and then complain on appeal that such an instruction should not have
11
been given.” Louis J. Palmer, Jr., et al., Handbook on Evidence for West Virginia Lawyers,
§ 103.03[1][d] (Supp. 2018). This rule is firmly established in our case law. See State v.
Tidwell,

215 W. Va. 280

599 S.E.2d 703

(2004) and State v. Boyd,

209 W. Va. 90

(2000).
In Tidwell, the Defendant was indicted for robbery in the first degree, in
violation of West Virginia Code § 61-2-12(a) (2000), and assault during the commission
of a felony, in violation of West Virginia Code § 61-2-10 (1923). See Tidwell,

215 W. Va. 280

, 282,

599 S.E.2d 703

, 706. At trial, the Defendant – without objection – offered jury
instructions allowing the jury to convict him of unlawful assault as a lesser included offense
of assault during the commission of a felony:
During the proceedings below, Tidwell’s counsel offered
various instructions to the Circuit Court including Defendant’s
Instruction Number 4 on unlawful assault. That instruction was
subsequently incorporated, without objection, into the Circuit
Court’s charge to the jury wherein the jury was told that a
conviction of unlawful assault could be returned under Count
2 of the indictment as a lesser included offense of assault
during the commission of a felony. The verdict form reflecting
that option was not objected to by appellant Tidwell.
Id.,

215 W. Va. 280

, 283,

599 S.E.2d 703

, 706. Tidwell was convicted of unlawful assault
as a lesser included offense of assault during the commission of a felony and another charge
unrelated to this appeal. Id.,

215 W. Va. 280

, 282,

599 S.E.2d 703

, 705. Like here, in
Tidwell, both the State and Tidwell “cast doubt upon the validity of the instruction that
allowed the jury to consider unlawful assault as a lesser included offense of assault during
12
the commission of a felony.” Id.,

215 W. Va. 280

, 283,

599 S.E.2d 703

, 706. In holding
that “a party cannot invite instructional error and then raise it on appeal,” Id.,

215 W. Va. 280

, 282,

599 S.E.2d 703

, 705, Tidwell cites to Syllabus Point 5 of State v. Calhoun, 65 W.
Va. 666,

69 S.E.2d 1098

(1910), which provides:
Though there be error in instructions given on behalf of the
prevailing party, yet the judgment will not for this reason be
reversed if it appears that the same error was introduced into
the record by instructions given at the instance of or was
invited by the other party.
Importantly, this Court found no error and affirmed Tidwell’s conviction on the lesser
included offense, based upon the instruction that he offered at trial, as “[a]ny error
concerning the unlawful assault conviction was invited by appellant Tidwell.” Tidwell,

215 W. Va. 280

, 282,

599 S.E.2d 703

, 705 (2004).
Likewise, Boyd was indicted on one count of felony possession with intent
to deliver, and two misdemeanor weapons counts. Boyd,

209 W. Va. 90

, 91,

, 648 (2000). The parties jointly moved to dismiss the misdemeanor charges on the
grounds that they were barred by the statute of limitations. See

id. Nonetheless, at

trial,
Boyd “successfully requested a jury instruction on the lesser included misdemeanor offense
of possession of a Schedule I controlled substance. The jury convicted the appellant of the
lesser included offense.”

Id. After trial,

Boyd moved that the misdemeanor conviction be
set aside because the statute of limitations had run. See

id. The circuit

court denied that
motion. See

id. 13 On

appeal, Boyd renewed his argument that his conviction for misdemeanor
possession of a controlled substance should have been set aside as time-barred. See

id. We held

that “[w]hen a defendant is not indicted within one year of the date on which an
offense is committed but requests the circuit court to instruct the jury on a time-barred
lesser included offense, the defendant by that act waives the statute of limitations defense
contained in W.Va. Code § 61–11–9.” Syllabus Point 3, Id.,

209 W. Va. 90

(2000). The reasoning behind this holding was stated as:
The requested charge was obviously in the appellant’s
best interest. He requested the charge, was convicted under the
charge, and benefitted from the charge. He cannot now
complain of the result. His actions constitute a waiver of the
time limitation contained in W.Va.Code § 61–11–9. To hold
otherwise would allow defendants to sandbag trial judges by
requesting and approving an instruction they know or should
know would result in automatic reversal if given. “After a
guilty verdict has been returned based on the requested
instruction, defense counsel cannot be allowed to change legal
positions in midstream and seek a reversal based on that error.”
Weber v. State,

602 So. 2d 1316

, 1319 (Fla.App. 5 Dist.1992).
Id.,

209 W. Va. 90

, 94,

, 651. Clearly, our prior jurisprudence has affirmed
convictions where criminal defendants have offered jury instructions of unindicted lesser
included offenses, like Tidwell, and where a conviction would otherwise be barred by the
statute of limitations, like Boyd. We believe this logic applies to this case, where Petitioner
requested a beneficial jury instruction.
14
Initially, we note that earlier this term, we held that “[a] criminal prosecution
requires the existence of an accusation charging the commission of an offense. Such an
accusation, either in the form of an indictment or an information, is an essential requisite
of a circuit court’s jurisdiction.” Syllabus Point 3, Montgomery v. Ames,

241 W. Va. 615

,
827 S.E,2d 403 (2019). Clearly, Montgomery is inapplicable as Petitioner was properly
charged in an indictment. Petitioner’s own action – offering the lesser included offense
jury instruction – did not deprive the circuit court of subject matter jurisdiction. However,
we are mindful of our previous holding in Syllabus Point 7 of State v. Corra,

223 W. Va. 573

(2009), “[w]hen a defendant is charged with a crime in an indictment,
but the State convicts the defendant of a charge not included in the indictment, then per se
error has occurred, and the conviction cannot stand and must be reversed.”
We find, however, that a review of Corra reveals such a bright-line rule was
not intended in every case. In Corra, the defendant was indicted for “furnishing ‘alcoholic
liquors’ to persons unrelated to the defendant who are under the age of 21.”

Id., 223 W.

Va. 573, 577,

, 310. However, the charge given by the circuit court to the
jury stated that Corra could be convicted for providing beer to persons under 21 and
unrelated to the defendant.

Id. Corra held

that these two acts represented two separate
15
misdemeanors under West Virginia law, and an indictment for one did not include an
indictment for the other.4 Id.,

223 W. Va. 573

, 583,

, 316.
One key distinction between Corra and the case at bar is the fact that in Corra
the Defendant acquiesced in the State’s offered jury instruction. See id.,

223 W. Va. 573

,
578,

, 311. In this case, Petitioner not only offered the jury instruction at
issue, but, far from being surprised, he instead greatly benefitted from that instruction. The
penalty for kidnapping is a life sentence, where the penalty for the crime of abduction with
intent to defile, which Petitioner requested the jury to be instructed upon, is three to ten
years in the penitentiary. Compare W. Va. Code § 61-2-14a (1999), with W. Va. Code §
61-2-14 (1984). By strategically inserting this instruction into the trial, Petitioner literally
avoided a possible life sentence.
Nonetheless, there is dicta5 in Corra that states when a criminal defendant
“‘invited’ [an] error – implicitly or as a trial strategy – [such error] does not negate our
prior holdings that it is, at the end of the day, the trial court’s obligation to get it right. We
therefore find the State’s argument that the error at issue was ‘invited error’ from which
4
We note there is no right to an indictment for a misdemeanor in West
Virginia. See W. Va. CONST., Art. III, § 4.
5
This Court has previously cautioned that language contained in
footnotes carries no precedential value. See State ex rel. Med. Assurance of W. Va., Inc. v.
Recht,

213 W. Va. 457

, 472,

583 S.E.2d 80

, 94 (2003).
16
the defendant should not benefit unpersuasive. . . .” Corra,

233 W. Va. 573

, 583 n.10,

, 316 n.10. We believe a recent opinion of The United States Supreme Court
requires us to reconsider that dicta on the issue of whether a criminal defendant’s consent
to proceeding in a certain manner precludes his later complaint that such proceeding – that
he requested – violated a constitutional protection. See Currier v. Virginia,

138 S. Ct. 2144

(2018). As we discuss below, that dicta in Corra is inconsistent with Currier on this issue,
in that Currier clearly provides that a criminal defendant may, through his or her consent,
waive the right to challenge a conviction, where, as here, a constitutional protection is
implicated.
The facts in Currier show that Currier was indicted on three charges – (1)
burglary, (2) grand larceny, and (3) possession of a firearm by a convicted felon. See id.,

138 S. Ct. 2144

, 2148. Currier and the prosecution agreed to sever these counts, and first
proceed to trial solely on the burglary and larceny charges. See

id. At that

trial, Currier
was acquitted. See

id. He then

argued that holding a second trial on the charge of
possession of a firearm by a convicted felon would subject him to double jeopardy. See
id.,

138 S. Ct. 2144

, 2148-2149. The trial court denied Currier’s motion and he was
convicted of that charge at a second jury trial. See id.,

138 S. Ct. 2144

, 2149. The Virginia
Supreme Court affirmed the conviction, and Currier appealed to the United States Supreme
Court, which granted certiorari.

Id. 17 In

its opinion, the United States Supreme Court discussed prior precedent of
that Court, which was asserted by Currier to bar his subsequent prosecution:
Currier suggests this Court’s decision in Ashe v.
Swenson,

397 U.S. 436

25 L. Ed. 2d 469

(1970),
requires a ruling for him. There, the government accused a
defendant of robbing six poker players in a game at a private
home. At the first trial, the jury acquitted the defendant of
robbing one victim. Then the State sought to try the defendant
for robbing a second victim. This Court held the second
prosecution violated the Double Jeopardy Clause.

Id., at 446,

. To be sure, the Clause speaks of barring
successive trials for the same offense. And, to be sure, the State
sought to try the defendant for a different robbery. But, the
Court reasoned, because the first jury necessarily found that the
defendant “was not one of the robbers,” a second jury could
not “rationally” convict the defendant of robbing the second
victim without calling into question the earlier acquittal.

Id., at 445–446,

. In these circumstances, the Court
indicated, any relitigation of the issue whether the defendant
participated as “one of the robbers” would be tantamount to the
forbidden relitigation of the same offense resolved at the first
trial.

Id., at 445,

; see Yeager v. United States,

557 U.S. 110

, 119–120,

129 S. Ct. 2360

174 L. Ed. 2d 78

              (2009).

Id. Rejecting that

double jeopardy claim, the United States Supreme Court expressly noted
that “a critical difference immediately emerges between our case and Ashe. Even assuming
without deciding that Mr. Currier’s second trial qualified as the retrial of the same offense
under Ashe, he consented to it.”

Id., 138 S. Ct.

2144, 2150.
Consequently, that Court held:
Historically, courts have treated greater and lesser-
included offenses as the same offense for double jeopardy
purposes, so a conviction on one normally precludes a later
trial on the other.

Id., at 150–151,

97 S. Ct. 2207

(plurality
opinion); Brown v. Ohio,

432 U.S. 161

, 168–169,

97 S. Ct. 18

              2221,

53 L. Ed. 2d 187

(1977) (collecting authorities). But,
Jeffers concluded, it’s different when the defendant consents to
two trials where one could have done. If a single trial on
multiple charges would suffice to avoid a double jeopardy
complaint, “there is no violation of the Double Jeopardy
Clause when [the defendant] elects to have the ... offenses tried
separately and persuades the trial court to honor his

election.” 432 U.S., at 152

97 S. Ct. 2207

Id. The Court

gave a straight-forward explanation of this rationale:
If a defendant’s consent to two trials can overcome concerns
lying at the historic core of the Double Jeopardy Clause, so too
we think it must overcome a double jeopardy complaint under
Ashe.
Id..
As we apply Currier to Corra, we find Corra should only apply in cases
where a defendant is called upon to defend against a charge that is surprising or misleading
to the defendant, increases his or her burden of proof, or is otherwise prejudicial to the
defendant. Corra contemplates such a situation when it cites to Justice McHugh’s holding
in Syllabus Point 3 of State v. Johnson,

197 W. Va. 575

476 S.E.2d 522

(1996)(superseded
by rule on other grounds):
If the proof adduced at trial differs from the allegations
in an indictment, it must be determined whether the difference
is a variance or an actual or a constructive amendment to the
indictment. If the defendant is not misled in any sense, is
not subjected to any added burden of proof, and is not
otherwise prejudiced, then the difference between the
proof adduced at trial and the indictment is a variance
which does not usurp the traditional safeguards of the
grand jury. However, if the defendant is misled, is subjected
to an added burden of proof, or is otherwise prejudiced, the
19
difference between the proof at trial and the indictment is an
actual or a constructive amendment of the indictment which is
reversible error.
Syllabus Point 6, Corra,

233 W. Va. 573

(emphasis added). Currier
clarifies this point. A criminal defendant who consents to proceeding on a lesser included
offense by inducing a trial court to give an erroneous jury instruction is not prejudiced in
any way.
Here, Petitioner offered the jury instruction which he now challenges, and
the parties proceeded to verdict as if abduction with intent to defile was a lesser included
offense of the indicted charge. Although the parties now agree that abduction with intent
to defile is not a lesser included offense, Petitioner’s position at trial that it was a lesser
included offense placed him fully on notice of the need to mount a defense to that charge.
Indeed, this Court in Corra made clear that its holding did not bar a defendant from being
convicted of a lesser included offense not contained in the indictment because in such a
case the defendant would “be on notice to mount a defense to both the primary offense and
any lesser-included defense.” Corra,

223 W. Va. 573

, 583,

, 316. Having
offered the jury instruction maintaining that abduction with intent to defile was a lesser
included offense of the charge of kidnapping, Petitioner clearly cannot now assert that he
was not on notice of the need to mount a defense to the charge of abduction with intent to
defile. See Currier,

138 S. Ct. 2144

, 2150. The same principle cited by this Court in Corra
permitting conviction of a lesser included offense even when a defendant is not indicted on
20
such offense applies here. Petitioner was not prejudiced by his conviction of an offense
which, while in hindsight is not a lesser included offense of the charge on which he was
indicted, is certainly a (1) less serious offense, (2) an offense on which he was convicted
based upon a jury instruction he offered, and (3) was not a surprise to him since both he
and the State proceeded to verdict as if it were, in fact, a lesser included offense.
Based upon this analysis, Petitioner cannot complain of an error of
procedural due process because he had notice of the crime of abduction with intent to defile
when he offered the jury instruction. See Corra,

223 W. Va. 573

, 580,

,
313 (2009)(“No principal of procedural due process is more clearly established than notice
of the specific charge, and a chance to be heard in a trial of the issues raised by that
charge.”). By persuading the circuit court to give his requested jury instruction, Petitioner
avoided a potential life sentence. See Currier,

138 S. Ct. 2144

, 2150. Petitioner was
acquitted of kidnapping, but convicted of abduction with intent to defile, thereby reducing
the restraint on his liberty from life to that of three to ten years. Petitioner’s argument –
that we should reverse his conviction based upon a jury instruction he offered and benefited
from – would allow defendants to offer jury instructions, and, if the circuit court
erroneously gives them, have any criminal penalty magically wiped out by their own
chicanery. Thus, we reaffirm that:
“Invited error” is a cardinal rule of appellate review
applied to a wide range of conduct. It is a branch of the doctrine
21
of waiver which prevents a party from inducing an
inappropriate or erroneous response and then later seeking to
profit from that error. The idea of invited error is not to make
the evidence admissible but to protect principles underlying
notions of judicial economy and integrity by allocating
appropriate responsibility for the inducement of error. Having
induced an error, a party in a normal case may not at a later
stage of the trial use the error to set aside its immediate and
adverse consequences.
State v. Crabtree,

198 W. Va. 620

, 627,

482 S.E.2d 605

, 612 (1996).
Accordingly, we believe our prior holdings on invited instructional error and
the United States Supreme Court’s opinion in Currier are persuasive. We therefore hold
that a criminal defendant cannot invite the circuit court to give an erroneous instruction on
a lesser included offense, benefit from that instruction, and then complain on appeal, or in
a collateral attack, that such instruction should not have been given. To the extent that
Syllabus Point 7 of State v. Corra,

223 W. Va. 573