IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2013 Term FILED
______________
November 14, 2013
released at 3:00 p.m.
No. 12-0513 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
______________ OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent
v.
GABRIEL HARGUS,
Defendant Below, Petitioner
________________________________________________________
Appeal from the Circuit Court of Kanawha County
The Honorable Louis H. Bloom, Judge
Criminal Action No. 11-F-40
AFFIRMED
________________________________________________________
AND
____________
No. 12-0833
____________
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent
v.
ROBERT LEE LESTER,
Defendant Below, Petitioner
______________________________________________________________
Appeal from the Circuit Court of Preston County
The Honorable Lawrance S. Miller, Jr., Judge
Criminal Action No. 07-F-76
AFFIRMED
_______________________________________________________________
Submitted: October 15, 2013
Filed: November 14, 2013
Lori M. Peters, Esq. Patrick Morrisey, Esq.
Assistant Public Defender Attorney General
Kanawha County Public Laura Young, Esq.
Defender’s Office Assistant Attorney General
Charleston, West Virginia Charleston, West Virginia
Attorney for Petitioner Hargus Attorneys for the State
Duane C. Roselieb, Jr, Esq. William C. Means, Esq.
WV Public Defender Services Senior Assistant Prosecuting Attorney
Charleston, West Virginia of Preston County
and Kingwood, West Virginia
Randy R. Goodrich, Esq. Attorney for the State
Kingwood, West Virginia
Attorneys for Petitioner Lester
CHIEF JUSTICE BENJAMIN delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “When the constitutionality of a statute is questioned every reasonable
construction of the statute must be resorted to by a court in order to sustain
constitutionality, and any doubt must be resolved in favor of the constitutionality of the
legislative enactment.” Syl. pt. 3, Willis v. O’Brien, 151 W. Va. 628, 153 S.E.2d 178
(1967).
2. “West Virginia Code § 62-12-26 (2009) is not facially unconstitutional
on cruel and unusual punishment grounds in contravention of the Eighth Amendment to
the United States Constitution or Article III, § 5 of the West Virginia Constitution.” Syl.
pt. 6, State v. James, 227 W. Va. 407, 710 S.E.2d 98 (2011).
3. “West Virginia Code § 62-12-26 (2009) does not facially violate due
process principles of the Fourteenth Amendment to the Constitution of the United States
or Article III, Section 10 of the Constitution of West Virginia. The terms of the statute
neither infringe upon a criminal defendant’s right to jury determination of relevant factual
matters, nor are the provisions of the statute regarding conditions of unsupervised release
unconstitutionally vague.” Syl. pt. 9, State v. James, 227 W. Va. 407, 710 S.E.2d 98
(2011).
4. “The imposition of the legislatively mandated additional punishment of
a period of supervised release as an inherent part of the sentencing scheme for certain
i
offenses enumerated in West Virginia Code § 62-12-26 (2009) does not on its face
violate the double jeopardy provisions contained in either the United States Constitution
or the West Virginia Constitution.” Syl. pt. 11, State v. James, 227 W. Va. 407, 710
S.E.2d 98 (2011).
5. West Virginia Code § 62-12-26(g)(3) (2011) does not facially violate
procedural due process principles of the Fourteenth Amendment to the Constitution of the
United States or Article III, § 10 of the Constitution of West Virginia.
6. West Virginia Code § 62-12-26 (2011), which provides for a period of
extended supervision for certain sex offenders, does not violate the equal protection
guarantees in the Fourteenth Amendment to the United States Constitution or Article III,
§10 of the Constitution of West Virginia.
7. West Virginia Code § 62-12-26(g)(3) (2011), which provides for
additional sanctions, including incarceration, upon revocation of a criminal defendant’s
period of supervised release, does not violate the prohibition against double jeopardy
found in the Fifth Amendment of the United States Constitution and Article III, § 5 of the
Constitution of West Virginia.
8. “A criminal sentence may be so long as to violate the proportionality
principle implicit in the cruel and unusual punishment clause of the Eighth Amendment
ii
to the United States Constitution.” Syl. pt. 7, State v. Vance, 164 W. Va. 216, 262 S.E.2d
423 (1980).
9. “Punishment may be constitutionally impermissible, although not cruel
or unusual in its method, if it is so disproportionate to the crime for which it is inflicted
that it shocks the conscience and offends fundamental notions of human dignity, thereby
violating West Virginia Constitution, Article III, Section 5 that prohibits a penalty that is
not proportionate to the character and degree of an offense.” Syl. pt. 5, State v. Cooper,
172 W. Va. 266, 304 S.E.2d 851 (1983).
10. “In determining whether a given sentence violates the proportionality
principle found in Article III, Section 5 of the West Virginia Constitution, consideration
is given to the nature of the offense, the legislative purpose behind the punishment, a
comparison of the punishment with what would be inflicted in other jurisdictions, and a
comparison with other offenses within the same jurisdiction.” Syl. pt. 5, Wanstreet v.
Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981).
11. “To trigger application of the ‘plain error’ doctrine, there must be (1) an
error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the
fairness, integrity, or public reputation of the judicial proceedings.” Syl. pt. 7, State v.
Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).
iii
12. “An appellant must carry the burden of showing error in the judgment
of which he complains. This Court will not reverse the judgment of a trial court unless
error affirmatively appears from the record. Error will not be presumed, all presumptions
being in favor of the correctness of the judgment.” Syl. pt. 5, Morgan v. Price, 151 W.
Va. 158, 150 S.E.2d 897 (1966).
iv
Benjamin, Chief Justice:
The two appeals in this case have been consolidated for purposes of
argument, consideration, and decision. In both appeals, the petitioners raise
constitutional challenges to the revocation of supervised release and the additional
sanctions imposed pursuant to W. Va. Code § 62-12-26(g)(3) (2011), which is the
extended supervision statute for certain sex offenders. After careful consideration of the
parties’ arguments and the relevant portions of the appendices, we affirm.1
I. FACTS
This Court relates the particular facts of each case separately below.
A. Gabriel Hargus
In February 2011, Petitioner Gabriel Hargus pled guilty to one count of
possession of materials depicting a minor engaged in sexually explicit conduct. The
Circuit Court of Kanawha County sentenced him to two years of incarceration, a period
of thirty years extended supervision, and lifetime registration as a sex offender under W.
Va. Code § 62-12-26.
1
In Mr. Hargus’s case, the State is represented by the Attorney General. While this
case was pending before the Court, Patrick Morrisey was sworn into office as Attorney
General for the State of West Virginia, replacing for Attorney General Darrell V.
McGraw, Jr.
1
Subsequently, the State alleged that Mr. Hargus failed to register as a sex
offender. By order dated March 15, 2012, the Circuit Court of Kanawha County found,
following a full hearing, that Mr. Hargus violated a condition of his supervised release by
(1) failing to provide his alias name of “Ethan Stone” to the West Virginia State Police,
(2) failing to provide his social security number, and (3) intentionally providing a false
date of birth. As a result, the circuit court modified Mr. Hargus’s supervised release,
ordering Mr. Hargus to serve five years, of his thirty years of supervised release
incarcerated in the penitentiary, and once released from the penitentiary, to be on
supervised release for another 25 years. Additionally, the circuit court ruled that Mr.
Hargus shall not reside in a residence with a computer.
Mr. Hargus now raises several challenges to the circuit court’s March 15,
2012, order.
B. Robert Lee Lester
Petitioner Robert Lee Lester was sentenced to one to five years for the
offense of third degree sexual assault and a consecutive 90–day sentence for the offense
of third degree sexual abuse. Also, he was sentenced to a period of ten years of extended
supervision under W. Va. Code § 62-12-26. Mr. Lester ultimately discharged the one to
five year and 90–day sentences.
2
Thereafter, Mr. Lester admitted that he had contact, including sexual
intercourse, with the victim in the underlying case in knowing violation of a sex offender
condition.2 As a result, the Circuit Court of Preston County, by order of June 5, 2012,
ordered the modification of Mr. Lester’s supervision requiring Mr. Lester to serve two
years of incarceration of his ten years of supervised release. The circuit court further
ruled that Mr. Lester shall, upon release from his incarceration, serve the balance of his
period of supervised release.
Like Mr. Hargus, Mr. Lester now challenges the modification of his
supervised release.
II.
STANDARD OF REVIEW
In these appeals, the primary issue is the constitutionality of the portion of
W. Va. Code § 62-12-26 that permits the revocation of supervised release and additional
incarceration when a sex offender violates a condition of supervised release. This Court
previously has held that “[t]he constitutionality of a statute is a question of law which this
Court reviews de novo.” Syl. pt. 1, State v. Rutherford, 223 W. Va. 1, 672 S.E.2d 137
(2008). Additionally, “[w]hen the constitutionality of a statute is questioned every
2
Mr. Lester’s original convictions arose from his conduct with his then 13-year
old girlfriend, Melanie N. Mr. Lester was 19 years of age at the time. When Mr. Lester
had sexual intercourse with Melanie N. again resulting in the modification of his
supervised release, Melanie N. was 18 years old.
3
reasonable construction of the statute must be resorted to by a court in order to sustain
constitutionality, and any doubt must be resolved in favor of the constitutionality of the
legislative enactment.” Syl. pt. 3, Willis v. O’Brien, 151 W. Va. 628, 153 S.E.2d 178
(1967).
III.
ANALYSIS
The petitioners in this case were sentenced pursuant to W. Va. Code § 62
12-26, which provides for extended supervision of certain sex offenders. This Court
previously has explained that “[f]undamentally, the statute provides that a court impose a
period of extended supervision as part of the criminal sentence for certain specified
offenses, and sets forth the manner in which the supervision is to be administered and
enforced.” State v. James, 227 W. Va. 407, 414, 710 S.E.2d 98, 105 (2011). Subsection
(a) of the statute explains its general operation as follows:
Notwithstanding any other provision of this code to the
contrary, any defendant convicted after the effective date of
this section of a violation of section twelve [§ 61-8-12],
article eight, chapter sixty-one of this code or a felony
violation of the provisions of article eight-b [§§ 61-8B-1 et
seq.], eight-c [§§ 61-8C-1 et seq.] or eight-d [§§ 61-8D-1 et
seq.] of said chapter shall, as part of the sentence imposed at
final disposition, be required to serve, in addition to any other
penalty or condition imposed by the court, a period of
supervised release of up to fifty years: Provided, That the
period of supervised release imposed by the court pursuant to
this section for a defendant convicted after the effective date
of this section as amended and reenacted during the first
extraordinary session of the Legislature, 2006, of a violation
of section three [§ 61-8B-3] or seven [§ 61-8B-7], article
4
eight-b, chapter sixty-one of this code and sentenced pursuant
to section nine-a [§ 61-8B-9a] of said article, shall be no less
than ten years: Provided, however, That a defendant
designated after the effective date of this section as amended
and reenacted during the first extraordinary session of the
Legislature, 2006, as a sexually violent predator pursuant to
the provisions of section two-a [§ 15-12-2a], article twelve,
chapter fifteen of this code shall be subject, in addition to any
other penalty or condition imposed by the court, to supervised
release for life: Provided further, That pursuant to the
provisions of subsection (g) of this session, a court may
modify, terminate or revoke any term of supervised release
imposed pursuant to subsection (a) of this section.
W. Va. Code § 62-12-26(a).
This Court previously has decided that W. Va. Code § 62-12-26 is facially
constitutional. In James, this Court held as follows:
6. West Virginia Code § 62-12-26 (2009) is not
facially unconstitutional on cruel and unusual punishment
grounds in contravention of the Eighth Amendment to the
United States Constitution or Article III, § 5 of the West
Virginia Constitution.
9. West Virginia Code § 62-12-26 (2009) does not
facially violate due process principles of the Fourteenth
Amendment to the Constitution of the United States or Article
III, Section 10 of the Constitution of West Virginia. The
terms of the statute neither infringe upon a criminal
defendant’s right to jury determination of relevant factual
matters, nor are the provisions of the statute regarding
conditions of unsupervised release unconstitutionally vague.
11. The imposition of the legislatively mandated
additional punishment of a period of supervised release as an
inherent part of the sentencing scheme for certain offenses
enumerated in West Virginia Code § 62-12-26 (2009) does
not on its face violate the double jeopardy provisions
5
contained in either the United States Constitution or the West
Virginia Constitution.3
(footnote added). Syl. pts. 6, 9, and 11, James, 227 W. Va. 407, 710 S.E.2d 98.
However, James did not involve the modification, termination, or revocation of the
supervised release portions of the defendants’ sentences. For that reason, in this case, this
Court will address the constitutionality of revocation of supervised release and post-
revocation sanctions.
The petitioners herein raise constitutional challenges to W. Va. Code § 62
12-26(g)(3), which concern specifically the revocation of supervised release and post-
revocation sanctions as follows:
(g) Modification of conditions or revocation. – The court
may:
....
(3) Revoke a term of supervised release and require the
defendant to serve in prison all or part of the term of
supervised release without credit for time previously served
on supervised release if the court, pursuant to the West
Virginia Rules of Criminal Procedure applicable to revocation
of probation, finds by clear and convincing evidence that the
defendant violated a condition of supervised release, except
that a defendant whose term is revoked under this subdivision
may not be required to serve more than the period of
supervised release[.]
3
W. Va. Code § 62-12-26 was amended in 2011. However, the changes made
were few and minor and none affect this Court’s decision in James that the statute is
facially constitutional.
6
A. Procedural Due Process
The petitioners first assert that the above provision violates the right to
procedural due process under the state and federal constitutions because a defendant’s
supervised release can be revoked and the defendant can be sentenced to additional
incarceration after the court finds by clear and convincing evidence that the defendant
violated a condition of his supervised release. Mr. Hargus posits that revocation should
require that a jury find the defendant guilty of the violation beyond a reasonable doubt
which is required for a finding of guilt in a criminal trial.4
In our consideration of this issue, we find the case of United States v.
Johnson, 529 U.S. 694 (2000), to be persuasive. In Johnson, the United States Supreme
Court considered an issue that arose under the federal supervised release statute found at
18 U.S.C. § 3583. Like the statute at issue, the Court in Johnson explained that the
federal statute gives district courts the power to revoke a defendant’s supervised release
and impose a prison term, and also to impose another term of supervised release
following imprisonment. Significantly, the Johnson Court attributed post-revocation
penalties to the defendant’s original conviction and not to a violation of the conditions of
supervised release. In explaining this decision, the Court recognized that construing the
4
See U.S. Const. amend. V (stating that no person shall “be . . . deprived of life,
liberty or property, without due process of law”) and amend. VI (“The accused shall
enjoy the right to a . . . public trial, by an impartial jury. . . .”); W. Va. Const. art. III, § 10
(“No person shall be deprived of life, liberty, or property, without due process of law, and
the judgment of his peers.”).
7
revocation of a defendant’s supervised release and re-imprisonment as punishment for the
violation of the conditions of supervised release would raise serious constitutional
questions. The Court additionally indicated:
Although such violations [of supervised release] often lead to
reimprisonment, the violative conduct need not be criminal
and need only be found by a judge under a preponderance of
the evidence standard, not by a jury beyond a reasonable
doubt. See 18 U.S.C. § 3583(e)(3) (1988 ed., Supp. V).
Where the acts of violation are criminal in their own right,
they may be the basis for separate prosecution, which would
raise an issue of double jeopardy if the revocation of
supervised release were also punishment for the same offense.
Treating postrevocation sanctions as part of the penalty for
the initial offense, however (as most courts have done),
avoids these difficulties.
Johnson, 529 U.S. at 700 (citations omitted).5
5
In Johnson, the defendant’s supervised release was revoked. The court then
imposed a prison term of 18 months, and ordered that the defendant be placed on
supervised release for 12 months following the period of re-imprisonment. The defendant
challenged on ex post facto grounds the portion of the order requiring him to be placed on
supervised release for 12 months after his re-incarceration.
The argument of the defendant in Johnson was based on the fact that the federal
supervised release statute was not amended to expressly provide for additional supervised
release after post-revocation incarceration until after the defendant originally was
sentenced for the underlying crime. The Supreme Court agreed with the defendant. The
Court reasoned that post-revocation sanctions are part of the penalty for the initial
offense, and the amended portion of the statute expressly authorizing imposition of an
additional term of supervised release does not apply retroactively. Nevertheless, the
Court affirmed the defendant’s sentence after finding that even under the statute in effect
at the time of the defendant’s initial offense, a district court revoking a term of supervised
release and imposing a period of re-incarceration was authorized to require a further term
of supervised release following the re-incarceration.
8
It is Mr. Hargus’s position that Johnson does not apply to the instant facts
because the federal statute construed in Johnson and W. Va. Code § 62-12-26 are
significantly different. In support of his position, Mr. Hargus asserts that the federal
statute applies to any federal crime and not just sex crimes. Also, says Mr. Hargus, the
federal statute places some limits on the amount of time that a defendant may be on
supervised release and the amount of time a defendant is incarcerated for a violation. In
addition, Mr. Hargus notes that the federal statute essentially replaces the federal parole
system. Finally, Mr. Hargus indicates that, unlike the statute at issue, the federal statute
says that supervised release may be included as part of the sentence whereas W. Va.
Code § 62-12-26 does not so specify.
We reject Mr. Hargus’s argument. The fact that there are several
differences between the two statutes does not mitigate the applicability of the Court’s
reasoning in Johnson to the statutory provision at issue in this case. Therefore, we apply
the Johnson Court’s construction of the federal statute, with regard to the revocation of
extended supervision and post-revocation incarceration, to the provisions of W. Va. Code
§ 62-12-26(g). We find that it is proper to do so because this construction of our statute is
reasonable, and this Court must resort to every reasonable construction of a statute in
order to sustain its constitutionality. Consequently, we construe a revocation proceeding
under W. Va. Code § 62-12-26(g)(3) to be a continuation of the prosecution of the
original offense and not a new prosecution of additional offenses. Because a revocation
hearing under W. Va. Code § 62-12-26(g) is not a separate criminal prosecution, it does
9
not require a finding of guilt by a jury beyond a reasonable doubt. As a result, the fact
that a defendant’s supervised release may be revoked and additional incarceration
imposed based on the circuit court’s finding by clear and convincing evidence that a
defendant violated the terms of his supervised release does not violate due process
principles.
Accordingly, we now hold that West Virginia Code § 62-12-26(g)(3)
(2011) does not facially violate procedural due process principles of the Fourteenth
Amendment to the Constitution of the United States or Article III, § 10 of the
Constitution of West Virginia.6
B. Equal Protection
Second, Mr. Hargus contends that W. Va. Code § 62-12-26(g)(3) violates
the constitutional guarantee of equal protection under the law.7 Mr. Hargus asserts that
6
In his first assignment of error, Mr. Hargus also asserts that the extended
supervision act violates substantive due process principles. However, because Mr. Hargus
fails to present a separate and specific argument accompanied by citation to legal
authority to support this assertion, we decline to address this issue.
7
See U.S. Const., amend. 14 (“No State shall . . . deny to any person within its
jurisdiction the equal protection of the laws.”); W. Va. Const. art. III, § 10 (“No person
shall be deprived of life, liberty, or property, without due process of law, and the
judgment of his peers.”); see also Syl. pt. 4, in part, Gibson v. W. Va. Dept. of Highways,
185 W. Va. 214, 406 S.E.2d 440 (1991) (indicating that “Article III, Section 10 of the
West Virginia Constitution . . . is our equal protection clause”).
10
the fact that W. Va. Code § 62-12-26 applies only to sex offenders and no other criminal
defendants violates equal protection principles.
Mr. Hargus’s equal protection argument has no merit. This Court has
explained that “equal protection means the State cannot treat similarly situated people
differently unless circumstances justify the disparate treatment.” Kyriazis v. University of
West Virginia, 192 W. Va. 60, 67, 450 S.E.2d 649, 656 (1994) (citations omitted). In the
instant case, Mr. Hargus is not similarly situated to criminal defendants who were not
convicted of the sex offenses specified in W. Va. Code § 62-12-26(a). Because Mr.
Hargus was convicted of a sex offense for which W. Va. Code § 62-12-26 applies, he is
subject to the sentencing provisions of that statute. It is the Legislature’s prerogative to
criminalize certain conduct and to determine the punishment for that conduct. Having
been found guilty of violating a specific statute, Mr. Hargus is subject to the punishment
that is appropriate for a violation of that statute as determined by the Legislature. He
cannot complain that those who violate different criminal statutes are punished
differently than he is. See, e.g., Drew v. State, 684 S.E.2d 608 (Ga. 2009) (opining that
criminal defendants are similarly situated for purposes of equal protection only if they are
charged with the same crime or crimes). Therefore, this Court holds that West Virginia
Code § 62-12-26 (2011), which provides for a period of extended supervision for certain
sex offenders, does not violate the equal protection guarantees found in the Fourteenth
Amendment to the United States Constitution or Article III, § 10 of the Constitution of
West Virginia.
11
C. Double Jeopardy
Both Mr. Hargus and Mr. Lester posit that post-revocation sanctions
provided for in W. Va. Code § 62-12-26(g)(3) violate the constitutional guarantee against
double jeopardy.8 The petitioners argue that a person sentenced to incarceration for a
violation of supervised release is punished twice, once for the original offense and then a
second time when his supervised release is revoked and he is sentenced to post-
revocation incarceration.
We find that the extended supervision statute does not violate double
jeopardy principles. As we held above, a post-revocation sanction simply is a
continuation of the legal consequences of a defendant’s original crime. In other words, it
is part of a single sentencing scheme arising from the defendant’s original conviction. It
is not an additional penalty resulting from the defendant’s initial conviction.9 For this
reason, a post-revocation sanction does not violate the constitutional guarantee against
double jeopardy. Accordingly, this Court now holds that West Virginia Code § 62-12
26(g)(3) (2011), which provides for additional sanctions, including incarceration, upon
8
See U.S. Const. amend. V (stating “nor shall any person be subject for the same
offense to be twice put in jeopardy of life or limb”); W. Va. Const. art. III, § 5 (“No
person shall . . . be twice put in jeopardy of life or liberty for the same offence.”).
9
In support of their argument, the petitioners note that this Court referred to
supervised release in syllabus point 11 of James, supra, as “additional punishment.”
Inasmuch as we held in James that a sentence of supervised release does not violate
double jeopardy principles, it is clear that our use of the term “additional punishment”
does not indicate a second and separate punishment for the same offense.
12
revocation of a criminal defendant’s period of supervised release, does not violate the
prohibition against double jeopardy found in the Fifth Amendment of the United States
Constitution and Article III, § 5 of the Constitution of West Virginia.
D. Disproportionate Sentence
The next assignment of error raised by both Mr. Hargus and Mr. Lester is
that their post-revocation sentences constitute cruel and unusual punishment in that the
sentences are disproportionate to the crimes they committed. This Court will consider
individually the petitioners’ sentences.
1. Mr. Hargus’s Post-Revocation Sentence
Mr. Hargus initially served two years of incarceration for possessing
material depicting minors engaged in sexually explicit conduct. Subsequently, the circuit
court found that Mr. Hargus violated a condition of his supervised release by failing to
register as a sex offender as required. Specifically, the circuit court found that Mr. Hargus
failed to provide to the State Police his alias name of “Ethan Stone” and his social
security number, and that he intentionally provided a false date of birth. As a result, Mr.
Hargus was sentenced to a post-revocation period of incarceration of five years and
thereafter ordered to complete the balance of his term of supervised release which is 25
years. Mr. Hargus claims that his additional incarceration shocks the conscience and is
objectively disproportionate to his crimes.
13
This Court has indicated that “[a] criminal sentence may be so long as to
violate the proportionality principle implicit in the cruel and unusual punishment clause
of the Eighth Amendment to the United States Constitution.” Syl. pt. 7, State v. Vance,
164 W. Va. 216, 262 S.E.2d 423 (1980). There are two tests to determine whether a
sentence is so disproportionate to a crime that it violates the West Virginia Constitution.
The subjective test is found in syllabus point 5 of State v. Cooper, 172 W. Va. 266, 304
S.E.2d 851 (1983), which provides:
Punishment may be constitutionally impermissible,
although not cruel or unusual in its method, if it is so
disproportionate to the crime for which it is inflicted that it
shocks the conscience and offends fundamental notions of
human dignity, thereby violating West Virginia Constitution,
Article III, Section 5 that prohibits a penalty that is not
proportionate to the character and degree of an offense.
When it cannot be found that a sentence shocks the conscience, a disproportionality
challenge is guided by the objective test which states:
In determining whether a given sentence violates the
proportionality principle found in Article III, Section 5 of the
West Virginia Constitution, consideration is given to the
nature of the offense, the legislative purpose behind the
punishment, a comparison of the punishment with what
would be inflicted in other jurisdictions, and a comparison
with other offenses within the same jurisdiction.
Syl. pt. 5, Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981).
In support of his claim that his post-revocation incarceration is
constitutionally disproportionate to his crime, Mr. Hargus notes that his only criminal
conviction is the one that qualified him to be sentenced under the extended supervision
14
statute. In light of this fact, Mr. Hargus asserts that his post-revocation incarceration of
five years shocks the conscience. With regard to the objective test, Mr. Hargus indicates
that he was convicted of possessing child pornography which is not an offense involving
sexual contact. Also, he notes that his supervised release was revoked based solely on a
technical violation of a condition of supervised release. In addition, Mr. Hargus contends
that other states take “less drastic measures” to manage sex offenders in which the
periods of supervision and the punishments for violations are shorter. He cites, for
example, Iowa, where, he says, a person can serve no more than two years of
incarceration upon his first violation of extended supervision and no more than five years
for a subsequent violation. He also refers to Wisconsin where, he says, prior to a sentence
of lifetime supervision, the prosecutor must provide notice that the state is seeking
lifetime supervision and there must be a judicial finding that lifetime supervision is
appropriate.
This Court finds that Mr. Hargus’s post-revocation incarceration of five
years and requirement that he serve the balance of his supervised release does not violate
our constitutional proportionality principle. First, the crime which qualified Mr. Hargus
for sentencing under the extended supervision statute, possession of child pornography, is
a serious offense. Child pornography victimizes children—the most vulnerable members
of society. In addition, the heinous nature of the acts involved in producing child
pornography is likely to cause immeasurable emotional and psychological violence to the
children involved. While Mr. Hargus’s crime did not involve sexual contact, his
15
consumption of child pornography made him an active participant in its production and
dissemination. Further, while Mr. Hargus characterizes his violation of a condition of
supervised release as “technical,” the violation indicates a pattern of dishonesty. For these
reasons, this Court finds that the post-revocation sanctions levied against Mr. Hargus do
not shock the conscience or offend fundamental notions of human dignity.
Second, this Court finds that Mr. Hargus’s post-revocation sanctions do not
violate the objective test for constitutional disproportionality. In sum, Mr. Hargus has
failed to specifically address how the nature of the offense, the legislative purpose behind
the punishment, and a comparison with other offenses within the same jurisdiction
compels the finding that his post-revocation sanctions violate our constitution’s
proportionality principle.
2. Mr. Lester’s Post-revocation Sentence
Mr. Lester originally was convicted of the felony offense of third degree
sexual assault and the misdemeanor offense of third degree sexual abuse. He was
sentenced to one to five years for the offense of third degree sexual assault and a
consecutive 90–day sentence for the offense of third degree sexual abuse. In addition, he
was sentenced to a ten-year period of supervised release under the extended supervision
statute. After Mr. Lester admitted that he had contact with the victim of his underlying
crimes, including sexual intercourse, in knowing violation of a condition of his
supervised release, Mr. Lester’s supervised release was revoked and he was sentenced to
16
two years of incarceration after which he is to be on supervised release for the balance of
the ten-year period. Mr. Lester now asserts that his post-revocation sanction is
disproportionate to the facts of his crimes. We find no merit to Mr. Lester’s assertion.
Mr. Lester has failed to convince this Court that his additional two years of
incarceration followed by serving the balance of his period of supervised release should
shock the conscience of this Court or that these sanctions offend fundamental notions of
human dignity. In addition, Mr. Lester has not addressed why consideration of the nature
of his offenses, the legislative purpose behind his punishment, a comparison of the
punishment with what would be inflicted in other jurisdictions, and a comparison with
other offenses within the same jurisdiction compels the finding that his post-revocation
sentence violates constitutional proportionality principles. Therefore, we conclude that
his post-revocation sanctions do not violate the constitutional proportionality principle.10
E. Mr. Hargus’s Notice of Violations of Conditions of Supervised Release
Mr. Hargus asserts that due process requires that a defendant receive notice
of the charges against him so that he may prepare a proper defense. According to Mr.
Hargus, he received proper notice of his alleged failures to provide an accurate birth date
and an accurate accounting of his alias; however, Mr. Hargus contends that nowhere in
the original criminal complaint of failure to register or in the notice of violation is there
10
Mr. Lester also asserts that the extended supervision statute is overly vague.
However, Mr. Lester does not include a supporting argument or citation to authority.
Therefore, we decline to consider this issue.
17
any reference to an alleged failure to provide an accurate social security number.
Nevertheless, at the close of the violation hearing, the circuit court found that Mr. Hargus
violated the condition of his supervised release, in part, by failing to provide an accurate
social security number. While Mr. Hargus admits that he did not object to this failure of
notice below, he now avers that it constitutes plain error. Mr. Hargus concludes that
because he did not receive constitutionally adequate notice of this allegation, the circuit
court’s finding of a violation of the condition of his supervised release based on his
failure to provide an accurate social security number must be reversed.
Under our law, “[t]o trigger application of the ‘plain error’ doctrine, there
must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously
affects the fairness, integrity, or public reputation of the judicial proceedings.” Syl. pt. 7,
State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). Presuming that there was error in
failing to give Mr. Hargus notice of the allegation that he did not provide an accurate
social security number to the State Police in registering as a sex offender, we find that the
error did not affect Mr. Hargus’s substantial rights. “Normally, to affect substantial rights
means that the error was prejudicial. It must have affected the outcome of the
proceedings in the circuit court.” Miller, 194 W. Va. at 18, 459 S.E.2d at 129. The failure
of notice complained of did not affect the outcome of the proceedings regarding the
revocation of Mr. Hargus’s supervised release.
18
In its order revoking Mr. Hargus’s supervised release and sentencing him to
additional incarceration, the circuit court found that Mr. Hargus failed to register in three
ways, two of which Mr. Hargus does not challenge on appeal. Absent the finding that Mr.
Hargus failed to provide his social security number, two findings remain to support the
circuit court’s ruling that Mr. Hargus violated a condition of supervised release by failing
to register. As a result, if the circuit court’s finding that Mr. Hargus failed to provide his
social security number to the State Police was error, it did not affect the circuit court’s
determination that Mr. Hargus failed to register.
F. Constitutionality of Restriction on Mr. Hargus’s Computer Usage
Finally, in the order modifying Mr. Hargus’s sentence, the circuit court
ordered that Mr. Hargus shall not reside in a residence with a computer. Mr. Hargus now
asserts that this condition is unconstitutional in that it directly impinges on his first
amendment rights. According to Mr. Hargus, a person’s internet usage can be monitored
in other ways that would not require a full ban on internet use. Mr. Hargus explains that
the internet is a vital part of modern living and without it a person loses many
opportunities to apply for jobs and stay in contact with one’s family and friends. In
support of his argument, Mr. Hargus cites United States v. Heckman, 592 F.3d 400
(2010) and United States v. Burroughs, 613 F.3d 233 (D.C.Cir. 2010). Mr. Hargus
concludes that the restriction regarding not residing in a residence with a computer is
“excessive” and must be struck down.
19
We find that Heckman is instructive. In that case, the Mr. Heckman “was
prohibited from access to any Internet service provider, bulletin board system, or any
other public or private computer network for the remainder of his life—without
exception.” Heckman, 592 F.3d at 405 (internal quotation omitted). The imposition of
this condition on Mr. Heckman was pursuant to 18 U.S.C. § 3583(d), allowing federal
courts to impose conditions when those conditions are appropriate as long as those
conditions do not, among other things, involve a greater deprivation of liberty than is
necessary. The Heckman court found that “only a condition with no basis in the record, or
with only the most tenuous basis, will inevitably violate § 3583(d)(2)’s command that
such conditions involve no greater deprivation of liberty than is reasonably necessary.”
592 F.3d at 405 (internal quotation omitted).
The West Virginia Code, like the United States Code, also allows for the
imposition of conditions upon supervised release. W. Va. Code § 62-12-26(e) states that
“[a] defendant sentenced to a period of supervised release shall be subject to any or all of
the conditions applicable to a person placed upon probation pursuant to the provisions of
section nine of this article [§ 62-12-9].” Pursuant to W. Va. Code § 62-12-9(b), a “court
may impose, subject to modification at any time, any other conditions which it may deem
advisable.” A court’s power to impose conditions upon supervised release under W. Va.
Code § 62-12-26(e) is limited by the liberty protections of the United States Constitution.
20
Upon analyzing the impact of the condition imposed in Heckman, the Third
Circuit Court of Appeals concluded that the lifetime ban on Internet use was excessive in
length and too broad in coverage and that it constituted a greater deprivation of liberty
than was reasonably necessary. The facts of that case, however, are distinguishable from
those in the instant case. In contrast to Heckman, Mr. Hargus has not been banned from
all computer or Internet usage; the condition only prohibits him using a computer or
accessing the Internet in his residence. Also, the provision that Mr. Hargus challenges
does not indicate that it is in effect for the remainder of Mr. Hargus’s life. Finally, we
note that there is good reason to restrict Mr. Hargus’s computer and Internet usage in his
own home: Mr. Hargus has shown a propensity for downloading sexually explicit
material involving minors onto his computer, and such material that may be accessed
more easily in the privacy of a home.
Burroughs is also distinguishable from the instant case. In Burroughs, the
federal court found that a condition of supervised release that required the defendant to
submit to monitoring of his computer use and to keep a log of his internet activity was
not reasonably related to any need to provide correctional treatment to the defendant
whose offense of sexual abuse of a minor did not involve use of the Internet as an
instrument of his offense. In the instant case, however, Mr. Hargus’s underlying offense
involved downloading child pornography onto his computer. For these reasons, this Court
finds that Burroughs does not constitute persuasive authority in deciding the instant issue.
21
We conclude that the facts presented in both Heckman and Burroughs are
distinguishable from the case at bar. We find that while the restrictions in Heckman and
Burroughs were unconstitutionally restrictive, the condition placed on Mr. Hargus does
not unreasonably restrict his liberty and is reasonably related to the goals of deterrence
and protection of the public.
IV.
CONCLUSION
In sum, this Court determines that W. Va. Code § 62-12-26(g)(3) of the
extended supervision statute, which provides that a circuit court may revoke a
defendant’s supervised release and impose post-revocation sanctions after the court finds
by clear and convincing evidence that the defendant violated a condition of his or her
supervised release, does not violate constitutional principles of due process, equal
protection, and double jeopardy. In addition, we find that Mr. Hargus’s and Mr. Lester’s
post-revocation sanctions are not constitutionally disproportionate to their underlying
convictions. Further, we find that the revocation of Mr. Hargus’s supervised release and
imposition of post-revocation sanctions are not constitutionally infirm because of a lack
of notice. Finally, we find that the requirement that Mr. Hargus not reside in a residence
with a computer is not a constitutional violation.
22
For the reasons stated above, this Court affirms the March 15, 2012, order
of the Circuit Court of Kanawha County that modified the sentence of Petitioner Gabriel
Hargus pursuant to W. Va. Code § 62-12-26(g)(3) in case number 12-0513.
We also affirm the June 5, 2012, order of the Circuit Court of Preston
County that modified the sentence of Petitioner Robert Lee Lester pursuant to W. Va.
Code § 62-12-26(g)(3) in case number 12-0833.
Case No. 12-0513 – Affirmed.
Case No. 12-0833 – Affirmed.
23