FILED
November 14, 2017
State v. Kilmer, 15-0859 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
LOUGHRY, Chief Justice, dissenting: OF WEST VIRGINIA
I dissent to the majority’s decision to reverse the petitioner’s recidivist
sentence. This sentence–life in prison with the possibility of parole–is mandated by the
Legislature through West Virginia Code § 61-11-18(c) (2014): “When it is determined . . .
that such person shall have been twice before convicted” of a felony, “the person shall be
sentenced to be confined in the state correctional facility for life.” Id. (emphasis added).1
Contrary to the majority’s conclusion, there is nothing constitutionally disproportionate about
imposing a sentence of life with the possibility of parole upon a criminal who brutally beats
and then sexually assaults an injured woman, when these violent offenses represent an
escalation in the culprit’s existing felonious criminal record.
Many factors must be considered when addressing the proportionality of a
recidivist life sentence under West Virginia Constitution article III, section five. In the
1
When enacting the recidivist statute, the Legislature made a public policy decision
to punish repeat felons more harshly. “‘The Legislature has power to create and define
crimes and fix their punishment[.]’ Syl. Pt. 2, in part, State v. Woodward, 68 W.Va. 66, 69
S.E. 385 (1910).” Syl. Pt. 2, State v. Butler, 239 W.Va. 168, 799 S.E.2d 718 (2017). It is
most certainly not the job of this Court to second-guess the Legislature on matters of public
policy. See Syl. Pt. 2, in part, Huffman v. Goals Coal Co., 223 W.Va. 724, 679 S.E.2d 323
(2009) (“This Court does not sit as a superlegislature, commissioned to pass upon the
political, social, economic or scientific merits of statutes pertaining to proper subjects of
legislation.”).
1
analysis, initial emphasis is placed on the nature of the “final” felony, i.e., the offense for
which the recidivist life sentence is imposed:
The appropriateness of a life recidivist sentence under
our constitutional proportionality provision found in Article III,
Section 5, will be analyzed as follows: We give initial emphasis
to the nature of the final offense which triggers the recidivist life
sentence, although consideration is also given to the other
underlying convictions. The primary analysis of these offenses
is to determine if they involve actual or threatened violence to
the person since crimes of this nature have traditionally carried
the more serious penalties and therefore justify application of
the recidivist statute.
Syl. Pt. 7, State v. Beck, 167 W.Va. 830, 286 S.E.2d 234 (1981). “Although sole emphasis
cannot be placed on the character of the final felony, it is entitled to closer scrutiny than the
other convictions, ‘since it provides the ultimate nexus to the sentence.’” State v. Deel, 178
W.Va. 142, 147, 358 S.E.2d 226, 231 (1987) (quoting Wanstreet v. Bordenkircher, 166
W.Va. 523, 534, 276 S.E.2d 205, 212 (1981)). In addition to considering the actual violence
surrounding the perpetrator’s felonies, a court takes into account the possibility for violence
and harm: “Rather clearly our law indicates that crimes involving the potentiality of violence
fall in the category of those supporting the imposition of a life sentence under the recidivist
statute.” State v. Oxier, 179 W.Va. 431, 433, 369 S.E.2d 866, 868 (1988) (recognizing that
crime of breaking and entering carries potential for violence and danger to life); see also
State v. Housden, 184 W.Va. 171, 175, 399 S.E.2d 882, 886 (1990) (concluding that burglary
and grand larceny involve “the threat of harm or violence” and justify imposition of recidivist
life sentence).
2
Moreover, while an examination of the violent (or potentially violent) nature
of the perpetrator’s felonies is part of the proportionality analysis, it is certainly not the sole
consideration. See State v. Miller, 184 W.Va. 462, 465, 400 S.E.2d 897, 900 (1990)
(Acknowledging that while propensity for violence is “an important factor[,]” it is “not [the]
exclusive” factor to be considered in a recidivist analysis); c.f. State ex rel. Chadwell v.
Duncil, 196 W.Va. 643, 649, 474 S.E.2d 575, 579 (1996) (considering facts surrounding theft
of almost $1,500 in goods from several stores to conclude that five-year recidivist
enhancement under W.Va. Code § 61-11-18(a) was constitutionally proportionate for
defendant convicted of felony grand larceny who had prior felony conviction of non-violent
third offense shoplifting). When considering any claim of disproportionate sentencing, this
Court considers many different factors pursuant to two tests: one subjective and one
objective. Under the subjective test, a sentence is unconstitutional if it “shocks the
conscience and offends fundamental notions of human dignity[.]” Syl. Pt. 5, in part, State
v. Cooper, 172 W.Va. 266, 304 S.E.2d 851 (1983). The objective test instructs us to consider
such things as “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.” Wanstreet, 166 W.Va. at 523-
24, 276 S.E.2d at 207, syl. pt. 5, in part.
3
Turning to the facts of this appeal, the petitioner’s final felony, unlawful
assault, was part of a horribly violent attack that he perpetrated upon his former girlfriend.2
The evidence at trial indicated that, after refusing the victim’s demand that he leave her
home, the petitioner grabbed the victim, threw her on the hood of a car, picked her up again,
and threw her on the floor of a carport causing her head to strike concrete. He then began
choking the victim after which he threw her body toward a mud room. After knocking her
to the mud room floor, he resumed choking her. Because he was searching for her hidden
house key and was growing increasingly agitated, the victim was forced to give him the key.
Once inside the victim’s home, the petitioner grabbed the victim and slammed her to the
floor. When she tried to stand, she fell because of terrible pain in her hip that was later
determined to be caused by a fractured pelvis. The petitioner picked the victim up again,
slammed her on the bedroom floor, and again choked her. He tried to remove her pants while
she attempted to fend him off. The petitioner removed his belt, which the victim feared he
would use to choke her. Afraid for her life, and despite her broken pelvis and other injuries,
the victim was forced to endure the petitioner’s sexual assault upon her. Thereafter, the
victim was unable to walk without assistance because of pain from her injuries. Medical
evidence showed the petitioner beat the victim so badly that in addition to breaking her
2
The jury found the petitioner guilty of two counts of unlawful assault, West Virginia
Code § 61-2-9(a) (2014 & Supp. 2017); two counts of domestic battery, West Virginia Code
§ 61-2-28(a) (2014 & Supp. 2017); and sexual assault in the second degree, West Virginia
Code § 61-8B-4 (2014).
4
pelvis, he fractured three of her ribs, caused one of her lungs to deflate, and left her body
covered with bruises and strangulation marks. The victim was hospitalized for almost two
weeks, required the assistance of a walker while regaining the ability to walk, and could not
work for two months. There can be no dispute that this was a heinous crime of violence.
Indeed, this Court has previously recognized that unlawful assault is a crime of violence for
purposes of a proportionality analysis. See Miller, 184 W.Va. at 465, 400 S.E.2d at 900
(stating that unlawful assault is “unquestionably a violent crime”).
The petitioner’s two prior felonies, which must be taken into account but
receive less scrutiny than the current offense,3 do not change the outcome of the
proportionality analysis. The petitioner was convicted of driving while his license was
revoked because he drove a vehicle while under the influence of alcohol or drugs (“DUI”),
in violation of West Virginia Code § 17B-4-3(b) (2013 & Supp. 2017).4 Contrary to the
3
As explained above, “although sole emphasis cannot be placed on the character of
the final felony, it is entitled to closer scrutiny than the other convictions[.]” Miller, 184
W.Va. at 465, 400 S.E.2d at 900 (citation and internal quotation marks omitted).
4
West Virginia Code § 17B-4-3(b) provides:
(b) Any person who drives a motor vehicle on any public
highway of this state at a time when his or her privilege to do so
has been lawfully revoked for driving under the influence of
alcohol, controlled substances or other drugs, or any
combination thereof, or for driving while having an alcoholic
concentration in his or her blood of eight hundredths of one
percent or more, by weight, or for refusing to take a secondary
chemical test of blood alcohol content, is, for the first offense,
5
petitioner’s argument, his license was not revoked for some malum prohibitum reason, such
as the failure to renew his driver’s license or pay parking tickets. If that had been the
situation, these crimes would never have constituted felonies. Pursuant to West Virginia
Code § 17B-4-3(a),5 the crime of driving while revoked for some reason other than DUI is
always a misdemeanor, even if committed three or more times. However, in West Virginia
guilty of a misdemeanor and, upon conviction thereof, shall be
confined in jail for a period of not less than thirty days nor more
than six months and shall be fined not less than $100 nor more
than $500; for the second offense, the person is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in
jail for a period of not less than six months nor more than one
year and shall be fined not less than $1,000 nor more than
$3,000; for the third or any subsequent offense, the person is
guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility for not less than one
year nor more than three years and, in addition to the mandatory
prison sentence, shall be fined not less than $3,000 nor more
than $5,000.
5
West Virginia Code § 17B-4-3(a) provides:
(a) Except as otherwise provided in subsection (b) or (d)
of this section, any person who drives a motor vehicle on any
public highway of this state at a time when his or her privilege
to do so has been lawfully suspended or revoked by this state or
any other jurisdiction is, for the first offense, guilty of a
misdemeanor and, upon conviction thereof, shall be fined not
less than $100 nor more than $500; for the second offense, the
person is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than $100 nor more than $500; for the
third or any subsequent offense, the person is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in
jail for a period of not less than thirty days nor more than ninety
days and shall be fined not less than $150 nor more than $500.
6
Code § 17B-4-3(b), the Legislature expressly made a third or subsequent offense of driving
while revoked for DUI a felony punishable by a “mandatory prison sentence.”6
The obvious reason why the offense of driving while revoked for DUI is
punished more severely than other forms of driving on a revoked license, is the dangerous
nature of DUI and the importance to public safety of keeping drunk drivers from returning
to the roads. This is the same reason why the Court concluded that DUI is a crime of
potential violence supporting the imposition of a recidivist sentence. See State ex rel.
Appleby v. Recht, 213 W.Va. 503, 583 S.E.2d 800 (2002). When a person drives drunk, “[i]t
is sheer fortuity . . . that he killed no pedestrians while behind the wheel.” Appleby, 213
W.Va. at 515, 583 S.E.2d at 812 (citation and internal quotation marks omitted). Notably,
the petitioner had to commit this serious crime at least four separate times to rack up two
felony convictions.7
6
See supra, note 4.
7
In accordance with West Virginia Code § 17B-4-3(b), only the petitioner’s third and
fourth convictions for driving while revoked for DUI constituted felonies. However, the fact
that these two crimes were enhanced to become felonies is irrelevant to the recidivist
analysis. See Syl. Pt. 3, in part, State v. Williams, 196 W.Va. 639, 474 S.E.2d 569 (1996)
(“Despite the fact that a third offense DUI felony conviction . . . results from an enhanced
misdemeanor, the Legislature intended that this type of felony conviction be used for
sentence enhancement in connection with the terms of the recidivist statute[.]”); Chadwell,
196 W.Va. at 647, 474 S.E.2d at 577 (concluding that felony third offense shoplifting may
be used for recidivist enhancement).
7
When the petitioner’s two prior felonies are considered in conjunction with the
multiple violent felonies he committed against his ex-girlfriend in the instant case, it is clear
that the petitioner has demonstrated a pattern of undeterred, escalating felonious behavior.
Avoiding such repetition and escalation is exactly what the recidivist statute seeks to prevent:
The primary purpose of our recidivist statutes, W.Va.
Code, 61-11-18 (1943), and W.Va. Code, 61-11-19 (1943), is to
deter felony offenders, meaning persons who have been
convicted and sentenced previously on a penitentiary offense,
from committing subsequent felony offenses. The statute is
directed at persons who persist in criminality after having been
convicted and sentenced once or twice, as the case may be, on
a penitentiary offense.
Syl. Pt. 3, State v. Jones, 187 W.Va. 600, 420 S.E.2d 736 (1992); accord Appleby, 213 W.Va.
517, 583 S.E.2d at 814 (“West Virginia Code § 61-11-18 is designed to deter those who are
incapable of conforming their conduct to legitimately enacted obligations protecting society.
. . . States have a valid interest in deterring and segregating habitual criminals . . . and a
compelling interest in ensuring the safety of the public roadways.”) (internal citations and
quotation marks omitted). To that end, the Legislature ordered that persons with three felony
convictions “shall be sentenced to . . . [prison] for life.” W.Va. Code § 61-11-18(c).
Having considered this matter in terms of both subjective and objective
considerations, I am convinced that the petitioner’s recidivist life sentence should stand.
Imposing a life sentence with the possibility of parole upon a three-time felon who brutally
beat and sexually assaulted a woman, certainly does not shock my conscience. Moreover,
8
objective considerations weigh in favor of this recidivist sentence, including the violent
nature of the final felony, the Legislature’s intent to punish with a “mandatory prison
sentence” the crime of driving while revoked for DUI, and the deterrent purpose underlying
the recidivist statute.
In reversing this recidivist sentence, the majority ignores many relevant
considerations, including the horribly violent nature of the petitioner’s unlawful assault, to
focus entirely upon the nature of the petitioner’s prior felonies. Then, the majority fails to
recognize that serious safety concerns underlie the revocation of a driver’s license for DUI.
The majority’s narrow, short-cited analysis is plainly contrary to our law. Because I find no
basis on which to vacate the recidivist life sentence, I respectfully dissent.8
8
I also find fault with the majority’s failure to address one of the petitioner’s two
assignments of error; specifically, his claim that the circuit court erred by denying his motion
for judgement of acquittal on the grounds of insufficiency of the evidence. The evidence of
record clearly demonstrates that there was sufficient evidence to convict the petitioner–yet
the majority refuses to even discuss this assignment of error. Perhaps the majority ignored
this issue because cataloguing the evidence would highlight the exceptionally violent nature
of the petitioner’s recent crimes and thus detract from the majority’s flawed analysis of the
proportionality issue.
9