IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2019 Term
_______________
FILED
No. 18-0141 November 22, 2019
released at 3:00 p.m.
_______________ EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent
v.
JOHN HENRY HOYLE,
Defendant Below, Petitioner
____________________________________________________________
Appeal from the Circuit Court of Randolph County
The Honorable David H. Wilmoth
Case No. 14-F-99
AFFIRMED IN PART AND REVERSED IN PART
____________________________________________________________
Submitted: October 2, 2019
Filed: November 22, 2019
Jeremy B. Cooper, Esq. Patrick Morrisey, Esq.
Blackwater Law PLLC Attorney General
Kingwood, West Virginia Holly M. Flanigan, Esq.
and Assistant Attorney General
James E. Hawkins, Jr., Esq. Charleston, West Virginia
Buckhannon, West Virginia Counsel for Respondent
Counsel for Petitioner
CHIEF JUSTICE WALKER delivered the Opinion of the Court.
JUSTICE ARMSTEAD and JUSTICE JENKINS concur in part and dissent in part and
reserve the right to file separate opinions.
SYLLABUS BY THE COURT
1. “Where the issue on an appeal from the circuit court is clearly a
question of law or involving an interpretation of a statute, we apply a de novo standard of
review.” Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415
(1995).
2. “The function of an appellate court when reviewing the sufficiency of
the evidence to support a criminal conviction is to examine the evidence admitted at trial
to determine whether such evidence, if believed, is sufficient to convince a reasonable
person of the defendant’s guilt beyond a reasonable doubt. Thus, the relevant inquiry is
whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proved beyond a
reasonable doubt.” Syllabus Point 1, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163
(1995).
3. “A criminal defendant challenging the sufficiency of the evidence to
support a conviction takes on a heavy burden. An appellate court must review all the
evidence, whether direct or circumstantial, in the light most favorable to the prosecution
and must credit all inferences and credibility assessments that the jury might have drawn
in favor of the prosecution. The evidence need not be inconsistent with every conclusion
save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility
determinations are for a jury and not an appellate court. Finally, a jury verdict should be
set aside only when the record contains no evidence, regardless of how it is weighed, from
i
which the jury could find guilt beyond a reasonable doubt. To the extent that our prior
cases are inconsistent, they are expressly overruled.” Syllabus Point 3, State v. Guthrie,
194 W. Va. 657, 461 S.E.2d 163 (1995).
4. “‘In considering the constitutionality of a legislative enactment, courts
must exercise due restraint, in recognition of the principle of the separation of powers in
government among the judicial, legislative and executive branches. Every reasonable
construction must be resorted to by the courts in order to sustain constitutionality, and any
reasonable doubt must be resolved in favor of the constitutionality of the legislative
enactment in question. Courts are not concerned with questions relating to legislative
policy. The general powers of the legislature, within constitutional limits, are almost
plenary. In considering the constitutionality of an act of the legislature, the negation of
legislative power must appear beyond a reasonable doubt.’ Syllabus Point 1, State ex rel.
Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965).” Syllabus
Point 1, MacDonald v. City Hosp., Inc., 227 W. Va. 707, 715 S.E.2d 405 (2011).
5. “As a general rule, the refusal to give a requested jury instruction is
reviewed for an abuse of discretion. By contrast, the question of whether a jury was
properly instructed is a question of law, and the review is de novo.” Syllabus Point 1, State
v. Hinkle, 200 W. Va. 280, 489 S.E.2d 257 (1996).
6. “A variance in the pleading and the proof with regard to the time of
the commission of a crime does not constitute prejudicial error where time is not of the
ii
essence of the crime charged.” Syllabus Point 4, State v. Chaffin, 156 W. Va. 264, 192
S.E.2d 728 (1972).
7. “The variance between the indictment and the proof is considered
material where the variance misleads the defendant in presenting his defense to the charge
and exposes him to the danger of being put in jeopardy again for the same offense.”
Syllabus Point 7, State v. Fairchild, 171 W. Va. 137, 298 S.E.2d 110 (1982).
8. “The Supreme Court of Appeals reviews sentencing orders, including
orders of restitution made in connection with a defendant’s sentencing, under a deferential
abuse of discretion standard, unless the order violates statutory or constitutional
commands.” Syllabus Point 1, State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997).
9. “Sentences imposed by the trial court, if within statutory limits and if
not based on some [im]permissible factor, are not subject to appellate review.” Syllabus
Point 4, State v. Goodnight, 169 W. Va. 366, 287 S.E.2d 504 (1982).
10. “While our constitutional proportionality standards theoretically can
apply to any criminal sentence, they are basically applicable to those sentences where there
is either no fixed maximum set by statute or where there is a life recidivist sentence.”
Syllabus Point 4, Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981).
11. “The appropriateness of a life recidivist sentence under our
constitutional proportionality provision found in Article III, Section 5, will be analyzed as
iii
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 statute.” Syllabus Point
7, State v. Beck, 167 W. Va. 830, 286 S.E.2d 234 (1981).
12. For purposes of a life recidivist conviction under West Virginia Code
§ 61-11-18(c), two of the three felony convictions considered must have involved either
(1) actual violence, (2) a threat of violence, or (3) substantial impact upon the victim such
that harm results. If this threshold is not met, a life recidivist conviction is an
unconstitutionally disproportionate punishment under Article III, Section 5 of the West
Virginia Constitution.
iv
WALKER, Chief Justice:
When John Henry Hoyle was convicted of second offense failure to register
as a sex offender in 2015, he was sentenced to ten to twenty-five years in prison for that
offense and, because of his prior felony convictions, he received a recidivist life sentence
under West Virginia Code § 61-11-18(c). On appeal, Mr. Hoyle challenges his conviction
under the West Virginia Sex Offender Registration Act (Act)1 on the grounds that the State
failed to prove that he violated the statutory registration requirements and that the trial
court incorrectly instructed the jury that time was not of the essence of the alleged offense.
He also claims that his ten- to twenty-five-year sentence for second offense failure to
register and his recidivist life sentence are unconstitutionally disproportionate. While we
affirm the circuit court’s denial of Mr. Hoyle’s motions for acquittal based on the
sufficiency of the evidence and the contested jury instruction and his challenge to the ten-
to twenty-five-year sentence, we reverse the circuit court’s imposition of a recidivist life
sentence.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1987, Mr. Hoyle was charged with two felonies arising from the same
transaction: (1) Sexual Assault in the Second Degree in Barbour County, West Virginia,2
1
W. Va. Code §§ 15-12-1 to -10.
2
Circuit Court Case No.: 87-F-29.
1
and (2) kidnapping in Upshur County, West Virginia. 3 Eventually, Mr. Hoyle pleaded
guilty to both charges in a single plea agreement. He was sentenced to incarceration for
ten to twenty years for sexual assault and thirty years for kidnapping. These sentences
were ordered to run concurrently. After serving fifteen and one-half years, Mr. Hoyle was
released in 2002. As a result of the sexual assault conviction, Mr. Hoyle was required to
register as a sexual offender for life.4
In 2008, Mr. Hoyle pleaded guilty in the Circuit Court of Randolph County
to first offense failure to register as a sexual offender under West Virginia Code
§ 15-12-8(c). The circuit court sentenced Mr. Hoyle to one to five years’ incarceration.5
This time, upon his release, Mr. Hoyle properly registered as a sex offender. Importantly,
Mr. Hoyle listed only one telephone number in the registry, a cell phone registered as (304)
6**-5***.
For a time, Mr. Hoyle fulfilled his registry requirements and submitted to
annual reviews. But on October 27, 2014, Mr. Hoyle was indicted by a Randolph County
grand jury for two counts of second offense failure to register as a sex offender or provide
3
Circuit Court Case No.: 87-F-39-A.
4
We note that the West Virginia Sex Offender Registration Act, W. Va. Code
§§ 15-12-1 through -10, was not enacted until 1993 and therefore did not yet exist at the
time of Mr. Hoyle’s conviction for second degree sexual assault in 1988. But, the statute
states unequivocally that its provisions apply retroactively to qualifying offenders. W. Va.
Code § 15-12-2(a).
5
Circuit Court Case No.: 08-F-11.
2
notice of registration changes under West Virginia Code § 15-12-8(c). The indictment
charged that Mr. Hoyle
on or about September 23, 2014, [. . .] did unlawfully and
feloniously and knowingly refuse to provide accurate
information when so required by the terms of this article, or did
knowingly fail to register, or did knowingly fail to provide a
change in required information, as a person required to register
for life pursuant to this article[.]
At the trial for these charges on September 16, 2015, the testimony of State Police Deputy
David VanMeter and State Police Trooper James Cornelius established the following facts.
On July 22, 2014, Deputy VanMeter attempted to contact Mr. Hoyle by
calling his phone number as listed in the sex offender registry database, but received an
automated voice message informing him that the phone number was no longer in service.6
Deputy VanMeter then visited Mr. Hoyle’s home to attempt contact, but Mr. Hoyle was
not there. Later in the day, a neighbor informed Mr. Hoyle that the State Police had been
at his home, so Mr. Hoyle visited the State Police detachment in Elkins, West Virginia, to
follow up. After Deputy VanMeter inquired about the out-of-service phone, Mr. Hoyle
stated that he had not used that phone for months7 and that, instead, he used his wife’s
6
We note that at trial on September 16, 2015, Mr. Hoyle’s counsel produced this
phone during opening statements and caused the phone to ring. We also note, however,
that this is not necessarily indicative of whether the phone was or was not in service in July
2014.
7
We note that Mr. Hoyle’s counsel argued both at trial and in briefing before the
circuit court and here, on appeal, that the cell phone was lost in a packed box during a
move, but that Mr. Hoyle still physically possessed the phone.
3
phone. Mr. Hoyle gave his wife’s phone number to Deputy VanMeter, and when Deputy
VanMeter later called that number, Mr. Hoyle answered. Deputy VanMeter did not
investigate the discrepancies in Mr. Hoyle’s registry because he lacked jurisdiction to do
so. However, after completing an unrelated investigation, Deputy VanMeter sent a letter
to Trooper Cornelius on September 22, 2014, stating that Mr. Hoyle’s registry information
appeared to be incorrect.
Trooper Cornelius, unlike Deputy VanMeter, had authority to investigate sex
offender registry matters. He testified that, after receiving Deputy VanMeter’s letter, he
opened an investigation into whether Mr. Hoyle had, in fact, failed to update his sex
offender registry information. Trooper Cornelius testified that this investigation uncovered
that Mr. Hoyle had failed to update his registry information because he neither removed
the out-of-service phone number nor added the phone number that he told Deputy
VanMeter he was currently using. As a result of Trooper Cornelius’s investigation, a grand
jury indicted Mr. Hoyle on two counts of failing to update his sex offender registry
information for (1) failing to remove a phone number that was no longer in service, and (2)
failing to register a phone number (his wife’s) that he had used.
After the presentation of evidence at trial, Mr. Hoyle objected to the inclusion
of one of the proposed jury instructions related to a variance between the date on which the
indictment alleged the crime occurred and the evidence presented at trial. The circuit court
determined the instruction was proper and delivered it over Mr. Hoyle’s objection. The
jury deliberated briefly and returned a guilty verdict on both charges.
4
Before sentencing, the State filed a recidivist information noting its intention
to pursue a recidivist life sentence under West Virginia Code § 61-11-18(c) because the
2015 failure-to-update conviction was Mr. Hoyle’s third felony conviction. In response to
this filing, Mr. Hoyle filed motions in the circuit courts of Barbour, Upshur, and Randolph
Counties to retract his prior guilty pleas. With regard to the 1988 convictions, Mr. Hoyle
argued that he would not have pled guilty had the Act been enacted at the time. With regard
to the 2008 conviction, he argued that, because the Act did not exist for purposes of his
prior convictions, he should not have been required to register at all, thus rendering his
2008 conviction void. Mr. Hoyle’s motions to retract the 1988 and 2008 guilty pleas were
denied, so the State pursued the recidivist sentence in addition to the second offense failure-
to-update sentence.
On May 22, 2017, the Circuit Court of Randolph County sentenced Mr.
Hoyle to the statutory term of ten to twenty-five years for second offense failure to register.
The circuit court also determined that Mr. Hoyle had been convicted of the following three
felonies for purposes of the recidivism statute: (1) kidnapping and sexual assault in the
second degree, (2) first offense failure to register, and (3) second offense failure to register.
Having made that determination, the circuit court sentenced Mr. Hoyle to incarceration for
life under the recidivist statute,8 with that sentence to run consecutive to the ten to twenty-
8
W. Va. Code § 61-11-18(c).
5
five years for failure to update. It is from these convictions that Mr. Hoyle appeals to this
Court.
II. STANDARD OF REVIEW
Because Mr. Hoyle alleges multiple errors to which we apply different
standards of review, we set out the particular standard of review of each issue, or group of
similar issues, in connection with our discussion of them.
III. DISCUSSION
Mr. Hoyle raises several alleged errors on appeal. First, as to his conviction
for second offense failure to update, he contends that the trial court erred in denying his
motions for acquittal because: (1) there is an ambiguity in the phrase “has or uses” in West
Virginia Code § 15-12-2(d)(9); and (2) even if there is no ambiguity, the State failed to
meet its burden of proof with regard to his alleged violations. Second, he asserts that the
trial court erred in instructing the jury that time was not of the essence with regard to a
variance in the date alleged in his criminal indictment and the evidence presented at trial.
Third, he asserts that his ten- to twenty-five-year sentence under West Virginia Code § 15-
12-8(c) is unconstitutionally disproportionate. Finally, he asserts that his life sentence
under the recidivist statute, West Virginia Code § 61-11-18(c), is unconstitutionally
disproportionate. We address each of these arguments in turn.
A. Denial of the Motions for Acquittal
Mr. Hoyle alleges that the trial court erred in denying his motions for
acquittal based on statutory ambiguity and, in the alternative, insufficiency of the evidence.
6
We have held that “[w]here the issue on an appeal from the circuit court is clearly a
question of law or involving an interpretation of a statute, we apply a de novo standard of
review.”9 This Court also applies a de novo standard of review to the denial of a motion
for judgment of acquittal based on sufficiency of the evidence.10 With regard to sufficiency
of the evidence challenges, we have explained that
[t]he function of an appellate court when reviewing the
sufficiency of the evidence to support a criminal conviction is
to examine the evidence admitted at trial to determine whether
such evidence, if believed, is sufficient to convince a
reasonable person of the defendant’s guilt beyond a reasonable
doubt. Thus, the relevant inquiry is whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime proved beyond a reasonable doubt.[11]
And noting the heavy burden that applies to such challenges, we have held
that
[a] criminal defendant challenging the sufficiency of the
evidence to support a conviction takes on a heavy burden. An
appellate court must review all the evidence, whether direct or
circumstantial, in the light most favorable to the prosecution
and must credit all inferences and credibility assessments that
the jury might have drawn in favor of the prosecution. The
evidence need not be inconsistent with every conclusion save
that of guilt so long as the jury can find guilt beyond a
reasonable doubt. Credibility determinations are for a jury and
not an appellate court. Finally, a jury verdict should be set
aside only when the record contains no evidence, regardless of
9
Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).
10
State v. LaRock, 196 W. Va. 294, 304, 470 S.E.2d 613, 623 (1996).
11
Syl. Pt. 1, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995).
7
how it is weighed, from which the jury could find guilt beyond
a reasonable doubt.[12]
We begin with Mr. Hoyle’s contention that there is ambiguity in the phrase
“has or uses” in West Virginia Code § 15-12-2(d)(9). That statutory provision states:
(d) A person required to register under the provisions of this
article shall register in person at the West Virginia State Police
detachment responsible for covering the county of his or her
residence, and in doing so, provide or cooperate in providing,
at a minimum, the following when registering: . . .
(9) Information related to any telephone or electronic paging
device numbers that the registrant has or uses, including, but
not limited to, residential, work, and mobile telephone
numbers.[13]
According to Mr. Hoyle, the phrase “has or uses” is ambiguous because those
words can have varying interpretations and are too broad for use in a statute carrying
criminal penalties. He asserts that the term “has” implies physical possession and that the
term “uses” implies ongoing use. He further contends by way of multiple hypotheticals14
12
Id. at Syl. Pt. 3.
13
W. Va. Code § 15-12-2(d)(9) (emphasis added).
14
Mr. Hoyle’s hypotheticals include whether a registrant who borrows a bystander’s
phone to call a cab must register that number, whether a landline in one’s house that one
never uses must be registered, and whether a phone which has been disconnected for
nonpayment, but which is immediately reconnected, must be both removed and relisted.
We do not decide hypotheticals, as to do so would be to issue advisory opinions. See, e.g.,
Syl. Pt. 2, Harshbarger v. Gainer, 184 W. Va. 656, 403 S.E.2d 399 (1991) (“‘Courts are
not constituted for the purpose of making advisory decrees or resolving academic disputes.
The pleadings and evidence must present a claim of legal right asserted by one party and
denied by the other before jurisdiction of a suit may be taken.’ Mainella v. Board of
8
that if we were to interpret the statute to include single uses of a phone, the statute would
require registrants to report vast amounts of information.
When reviewing a vagueness challenge, we are mindful of our previous
holding that
[i]n considering the constitutionality of a legislative
enactment, courts must exercise due restraint, in recognition of
the principle of the separation of powers in government among
the judicial, legislative and executive branches. Every
reasonable construction must be resorted to by the courts in
order to sustain constitutionality, and any reasonable doubt
must be resolved in favor of the constitutionality of the
legislative enactment in question. Courts are not concerned
with questions relating to legislative policy. The general
powers of the legislature, within constitutional limits, are
almost plenary. In considering the constitutionality of an act
of the legislature, the negation of legislative power must appear
beyond reasonable doubt.[15]
This Court recently considered a vagueness challenge to a different provision
of the same statute. In State v. Nolte,16 a petitioner required to register as a sex offender
under the Act argued that the term “internet accounts” in West Virginia Code § 15-12-
2(d)(8) was unconstitutionally vague because the term was too broad to put a registrant on
notice of the information they were required to provide to the State Police. That petitioner
Trustees of Policemen’s Pension or Relief Fund of City of Fairmont, 126 W. Va. 183, 185–
86, 27 S.E.2d 486, 487–88 (1943).”).
15
Syl. Pt. 1, MacDonald v. City Hosp., Inc., 227 W. Va. 707, 715 S.E.2d 405 (2011)
(citing Syl. Pt. 1, State ex rel. Appalachian Power Co. v. Gainer, 149 W. Va. 740, 143
S.E.2d 351 (1965)).
16
No. 13-0774, 2014 WL 2404323 (May 30, 2014).
9
was charged with failing to supply information related to his social media accounts,
including accounts on Facebook, MySpace, and an Amy Grant fan club website called
“Friends of Amy.” In finding that the statute was not ambiguous, we noted that “[t]his
Court recently explained, ‘vagueness challenges seek to vindicate two principles of due
process: fair notice by defining prohibited conduct so that such behavior can be avoided,
and adequate standards to prevent arbitrary and discriminatory law enforcement.’” 17 We
also explained that
the [Act] is meant to allow the public and law
enforcement to monitor the whereabouts of sex offenders, and
while the statute is broad in scope, it is at the same time rather
specific. The Legislature chose to use the terms “internet
accounts,” “screen names,” [“]user names,” and “aliases” to
encompass all online activity. Even if this encompasses many
different names and/or accounts, the circuit court correctly
noted that “simply because a Defendant may be required to
report a vast amount of information to the West Virginia State
Police with respect to his internet accounts does not make the
statute at issue void for vagueness.” The Legislature has
recognized the risk of sex offenders being online and has
chosen to monitor them.[18]
Applying the same analysis to this case, we conclude that West Virginia
Code § 15-12-2(d)(9) is not unconstitutionally vague. The purpose of the Act is to enable
law enforcement to monitor sex offenders. The Act requires registrants to list any phone
number they have or use to further that goal by ensuring that law enforcement officers have
17
Id. at *3 (citing State v. James, 227 W. Va. 407, 419, 710 S.E.2d 98, 110 (2011)).
18
Id.
10
registrants’ accurate and complete contact information. The Act plainly requires
registrants to list any numbers related to any telephone device to which they have access
or which they use. This is a broad requirement, but it is not ambiguous. The statute lists
examples of the types of phone numbers registrants must provide, including residential,
work, and mobile phone numbers. But, the statute is clear that its list is not exhaustive.
And, just as we noted in Nolte, the possibility that a registrant may have to supply large
amounts of information does not render the statute void for vagueness.
We also find no merit in Mr. Hoyle’s alternative contention—that the State
failed to meet its burden of proof that he violated West Virginia Code § 15-12-2(d)(9). Mr.
Hoyle argues that he “had” the out-of-service phone because it was still physically in his
possession. But the Act is meant to allow the public and law enforcement to monitor the
whereabouts of sex offenders. So, while a registrant may physically possess a listed phone,
that phone no longer serves the purpose of the Act if it is out of service, that is, if it is no
longer a means by which law enforcement may monitor the registrant. Bearing in mind
the standard for our review of sufficiency of the evidence claims, requiring us to construe
the evidence presented at trial in the light most favorable to the prosecution, it is clear that
the State met its burden in showing that Mr. Hoyle no longer “had” his out-of-service phone
number for purposes of West Virginia Code § 15-12-2(d)(9) because he could not be
contacted by that phone.
This is equally true of the State’s burden with regard to Mr. Hoyle’s use of
his wife’s cell phone. Mr. Hoyle openly admitted to his use of the phone and later used it
11
in connection with a law enforcement officer’s attempt to contact him. As such, the State’s
burden is satisfied and we find no insufficiency below. Therefore, we affirm the circuit
court’s denial of Mr. Hoyle’s motions for acquittal and the sufficiency of the evidence for
the second offense failure to update jury conviction.
B. Jury Instruction
Mr. Hoyle next contends that the trial court erred by improperly instructing
the jury that time was not of the essence with regard to the crime of second offense failure
to register or update. Concerning jury instructions, this Court has consistently held that
“the question of whether a jury was properly instructed is a question of law, and the review
is de novo.”19 We also note that
[w]e consider all the jury heard and, from the standpoint
of the jury, decide not whether the charge was faultless in every
particular but whether the jury was misled in any way and
whether it had an understanding of the issues and its duty to
determine those issues. [. . .] We will reverse a conviction only
if the error was prejudicial when viewed in light of the entire
record.[20]
Over Mr. Hoyle’s objection, the trial court delivered the following jury
instruction: “The [c]ourt instructs the jury that no indictment or other accusation shall be
deemed invalid for imperfectly stating the date at which the offense was committed when
time is not of the essence of the offense.”
19
Syl. Pt. 1, in part, State v. Hinkle, 200 W. Va. 280, 489 S.E.2d 257 (1996).
20
Id. at 285; 489 S.E.2d at 262.
12
According to Mr. Hoyle, time was of the essence because time is also an
element of second offense failure to update. Under West Virginia Code § 15-12-3, the
State must show that the registrant failed to make the required update within ten business
days of the time the information changed. As such, he contends that the State was required
to prove that he had violated the statute within ten days of the date charged in the
indictment. He further argues that the jury instruction refers to a separate issue, namely a
variance between the date alleged in the indictment and the proof presented at trial. Under
this second point, he asserts that the indictment charged him with violating the registry
statute on September 23, 2014, but the State presented evidence from July 2014 which
prejudiced him in that it misled him in preparing his defense.21 The State counters that the
jury instruction is not incorrect as a matter of law and that Mr. Hoyle was not prejudiced
by the variance because proof presented at trial showed that Mr. Hoyle was in state of
continuous violation from July 2014 through his incarceration. We agree with the State.
The language in the jury instruction comes substantially from West Virginia
Code § 62-2-10, but we have more succinctly reproduced its language in Syllabus Point 4
of State v. Chaffin.22 In Chaffin, we held, “[a] variance in the pleading and the proof with
regard to the time of the commission of a crime does not constitute prejudicial error where
21
We note here that Mr. Hoyle apparently intended to rely on the fact that, because
he was incarcerated on September 23, 2014, his obligation to update his registry was stayed
under West Virginia Code § 15-12-4(a).
22
156 W. Va. 264, 192 S.E.2d 728 (1972).
13
time is not of the essence of the crime charged.”23 Under Mr. Hoyle’s reasoning, because
time is an element of his charged offense, it must also be of the essence of that offense.
We disagree. Undeniably, it is reversible error for a court to omit an element of a crime,24
but that has not happened here. The trial court instructed the jury not once, but twice, on
the ten-day time frame element, embodied in West Virginia Code § 15-12-3, and its relation
to second offense failure to update, as enumerated in West Virginia Code § 15-12-8(c).
We previously have explained on several occasions when time is of the
essence in criminal matters. Overwhelmingly, our case law interprets “time is of the
essence” to mean that a defect in the time or date stated in the indictment complicates or
inhibits prosecution of the crime. For example, in Chaffin, we noted that time was of the
essence when it was necessary to determine whether the applicable statute of limitations
had run, thereby prohibiting prosecution of the crime charged.25 In State v. Bermawitz, we
explained that time was of the essence when multiple conflicting laws had been in effect
over a short period of time because it was necessary to determine which law had been in
23
Id. at Syl. Pt. 4.
24
See Syllabus, State v. Jeffers, 162 W. Va. 532, 251 S.E.2d 227 (1979) (“Where a
trial court gives, over objection, an instruction which incompletely states the law, and the
defect is not corrected by a later instruction, the giving of such incomplete instruction
constitutes reversible error where the omission involves an element of the crime.”).
25
Chaffin, 156 W. Va. at 268, 192 S.E.2d at 731 (“Proof as to time is not material
where no statute of limitations is involved.”)(citing State v. Trippe, 24 S.E.2d 340 (N.C.
1943). Accord State v. Bruce, 26 W. Va. 153 (1885) (interpreting the predecessor to W.
Va. Code § 62-2-10 to allow omission of a date in an indictment when it appears on the
face of the indictment that the statute of limitations has not run).
14
effect on the precise date of the crime to effectively prosecute it.26 In State v. Runyon, we
invalidated an indictment where the date of the crime was so far in the future that it had
not yet come to pass.27 None of these concerns are present here. There are no statute of
limitations concerns here, nor were there conflicting laws in place at any time between July
and September of 2014. And, there can be no assertion that the indictment charged a future
crime because the October 2014 indictment charged Mr. Hoyle with a crime committed in
September 2014.
Turning to Mr. Hoyle’s contention that the jury instruction actually concerns
a variance, we have explained that “[t]he variance between the indictment and the proof is
considered material where the variance misleads the defendant in presenting his defense to
the charge and exposes him to the danger of being put in jeopardy again for the same
offense.”28 Despite the variance between the date in the indictment and the proof presented
at trial here, there is little doubt that the indictment put Mr. Hoyle on notice of the offenses
with which he was charged, including the bases for which the two charges were brought.
Mr. Hoyle was not prejudiced by any alleged insufficiency in the indictment
because the charges were detailed in every respect with the exception of the precise date.
We can determine from the record that Mr. Hoyle sought to rely upon his incarceration on
26
98 W. Va. 637, 127 S.E. 494 (1925).
27
100 W. Va. 647, 131 S.E. 466 (1926).
28
Syl. Pt. 7, State v. Fairchild, 171 W. Va. 137, 298 S.E.2d 110 (1982).
15
September 23, 2014, the date alleged in the indictment, to defend against the charges. And
we do not question that, under West Virginia Code § 15-12-4(a), a registrant’s duty to
update is stayed while he or she is incarcerated. But, even if the violation started in July
2014, it had not been corrected by September of that year, including dates prior to his
incarceration, so Mr. Hoyle was continuously violating the statute by failing to update his
registry information within ten business days of the requisite changes occurring. And, the
indictment charges that the crime occurred “on or about September 23, 2014[.]”29 That
phrase permits the inference that the crime occurred in a general time frame, not on the
specific date of Mr. Hoyle’s incarceration. So, even though he was under no obligation to
update his registry while incarcerated, he was obligated to do so prior to that incarceration
and did not do so.
For these reasons, we conclude that the trial court did not err in delivering
the jury instruction. The instruction is taken nearly verbatim from our statutory and case
law, so it is not erroneous as a matter of law. Time was not of the essence in this case
because, based on our precedent, there was no defect in the indictment which would have
prohibited or complicated the prosecution of Mr. Hoyle’s crime. Undoubtedly, time is an
element of the offense of failing to update one’s sex offender registry, but that does not
necessarily mean that time is also of the essence. Because we find that the trial court
properly instructed the jury as to all elements of the crimes charged, including time, and
29
Emphasis added.
16
because we find that nothing with regard to the element of time would have complicated
or inhibited the prosecution of this crime, we find that time was not of the essence. And,
we find that the variance between the date in the indictment and the proof presented at trial
was not material here because no prejudice resulted from that variance. The indictment
provided Mr. Hoyle with detailed notice of the charges brought against him such that he
could have mounted effective defenses to those charges. For these reasons, we affirm the
circuit court’s instruction to the jury on this point.
C. The Sentence for Second Offense Failure to Update
Mr. Hoyle next alleges that the ten- to twenty-five-year sentence imposed by
the trial court under West Virginia Code § 15-12-8(c) for his second offense of failure to
update is unconstitutionally disproportionate under Article III, Section 5 of the West
Virginia Constitution and under the Eighth Amendment to the United States Constitution.
We review a sentencing order “under a deferential abuse of discretion standard, unless the
order violates statutory or constitutional commands.” 30
As we have explained,
“[s]entences imposed by the trial court, if within statutory limits and if not based on some
[im]permissible factor, are not subject to appellate review.”31
We have previously held that “[while] our constitutional proportionality
standards theoretically can apply to any criminal sentence, they are basically applicable to
30
Syl. Pt. 1, in part, State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997).
31
Syl. Pt. 4, State v. Goodnight, 169 W. Va. 366, 287 S.E.2d 504 (1982).
17
those sentences where there is either no fixed maximum set by statute or where there is a
life recidivist sentence.”32 West Virginia Code § 15-12-8(c) explicitly states that “[a]ny
person convicted of a second or subsequent offense under this subsection is guilty of a
felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for
not less than ten nor more than twenty-five years.” This statutory sentence is precisely
what the trial court imposed on Mr. Hoyle and so, under our prior cases, the sentence is
well-insulated from Mr. Hoyle’s proportionality attack.
We consider Mr. Hoyle’s arguments, nonetheless. He contends that his
sentence for second offense of failure to update is disproportionate under both the objective
and subjective prongs of the proportionality test enumerated by this Court in State v.
Cooper.33 We address each prong in turn.
The first prong of Cooper asks “whether the sentence for the particular crime
shocks the conscience of the court and society. If a sentence is so offensive that it cannot
pass a societal and judicial sense of justice, the inquiry need not proceed further.”34 Mr.
Hoyle argues that his sentence does so shock the conscience because he is serving ten to
twenty-five years in prison for violation of a regulatory, rather than penal, statute. We do
not agree.
32
Syl. Pt. 4, Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981).
33
172 W.Va. 266, 272, 304 S.E.2d 851, 857 (1983).
34
Id.
18
The West Virginia Legislature has crafted this significant punishment in
response to “a compelling and necessary public interest that the public have information
concerning persons convicted of sexual offenses in order to allow members of the public
to adequately protect themselves and their children from these persons.”35 Both this Court
and the Supreme Court of the United States have recognized the importance of protecting
the public from sexual offenders, which necessitates the need for harsh deterrent
punishments.36 Finally, because, as noted above, we afford deference under Goodnight to
the statutory sentences imposed by the Legislature, we cannot find that this sentence is so
outrageous as to shock the conscience. As such, we must move on to the second prong of
the Cooper test.
The second prong requires us to examine the following: (1) the nature of the
offense; (2) the legislative purpose behind the punishment; (3) a comparison of the
punishment with what would be inflicted in other jurisdictions; and (4) a comparison with
35
W. Va. Code § 15-12-1a(b).
36
See, e.g., McKune v. Lile, 536 U.S. 24, 32–33 (2002) (“When convicted sex
offenders reenter society, they are much more likely than any other type of offender to be
rearrested for a new rape or sexual assault.” (citing U.S. Dept. of Justice, Bureau of
Statistics, Sex Offenses and Offenders 27 (1997); U.S. Dep’t. of Justice, Bureau of Justice
Statistics, Recidivism of Prisoners Released in 1983, p. 6 (1997))); Hensler v. Cross, 210
W. Va. 530, 536, 558 S.E.2d 330, 336 (2001) (“Moreover, sex crimes and sex offender
recidivism present real and substantial challenges to law enforcement officers who are
charged with protecting the innocent public and preventing crime. We are aware that sex
offenders are significantly more likely than other repeat offenders to reoffend with sex
crimes or other violent crimes and the tendency persists over time.”).
19
other offenses within the same jurisdiction.37 Mr. Hoyle contends that this test cannot be
satisfied here because his offense is nonviolent, the legislative purpose of the statute is
regulatory rather than penal, and because the punishment is excessive when compared to
the same crime in other jurisdictions and to other crimes in West Virginia. We disagree.
We acknowledge that Mr. Hoyle’s present offense is nonviolent in nature.
But we disagree with his characterization of the Legislature’s purpose. The statute states
that “[i]t is not the intent of the Legislature that the [registration] information be used to
inflict retribution or additional punishment on any person convicted of any offense
requiring registration under this article. This article is intended to be regulatory in nature
and not penal.”38 However, the Legislature then went on to explain the compelling interest
it has in protecting the public from sex offenders and to impose a harsh punishment for Mr.
Hoyle’s specific crime. 39 Specifically, the Legislature imposed a significantly harsher
punishment on repeat offenders under the Act than it did on first time offenders. The
punishment for first offense failure-to-register under West Virginia Code § 15-12-8(c) is
37
Cooper, 172 W.Va. at 272, 304 S.E.2d at 857 (citing Syl. Pt. 5, Wanstreet v.
Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981)).
38
W. Va. Code § 15-12-1a(a).
39
W. Va. Code § 15-12-1a(b) (“The Legislature finds and declares that there is a
compelling and necessary public interest that the public have information concerning
persons convicted of sexual offenses in order to allow members of the public to adequately
protect themselves and their children from these persons.”); W. Va. Code § 15-12-8(c)
(imposing a ten- to twenty-five-year sentence for second and subsequent offenses for
failure to register).
20
only a one- to five-year prison sentence, while a second offense yields a ten- to twenty-
five-year sentence. As such, we can only conclude that the Legislature intended this precise
punishment for offenses like Mr. Hoyle’s in order to serve as a deterrent to repeat offenders
and to protect the public from those same individuals.
Next, we compare the ten- to twenty-five-year sentence under § 15-12-8(c)
to the corresponding crime in other states. Undoubtedly, many of our sister jurisdictions
impose significantly lesser punishments,40 but other states impose punishments on par with
or greater than that embodied in our law. Both Texas41 and Pennsylvania42 contemplate
maximum twenty-year terms for offenders who repeatedly fail to adhere to their respective
sex offender registration acts. Meanwhile, Georgia contemplates a maximum of thirty
years’ incarceration.43 And, despite a lack of comparable codified penalties, other states
have upheld significant sentences for recidivists who fail to properly register as sex
40
Mr. Hoyle references the penalties of our border states: Ohio imposes a two to
eight year penalty (OHIO REV. CODE § 2950.99 (West 2011)); Virginia imposes a one to
ten year penalty (VA. CODE § 18.2-472.1 (West 2011)); Maryland imposes a maximum
five year penalty (MD. CODE ANN, CRIM. PROC., § 11-721 (West 2010)); Kentucky
imposes a five to ten year penalty (KY. REV. STAT. ANN. § 17.510 (West 2018)); and
Pennsylvania imposes a maximum penalty of twenty years (18 PA. STAT. AND CONS.
STATE. ANN. § 4915.1 (West 2018)). But, several states impose an average three to ten
years imprisonment. See, e.g., 730 ILL. COMP. STAT. 150/10 (2019) (3 to 14 year penalty
as Class 2 felony); N.Y. CORRECT. LAW § 168-t (2007) (two to five year penalty); IDAHO
CODE § 18-8311 (2011) (maximum ten year penalty); N.M. STAT. § 29-11A-4(P) (2013)
(six year maximum penalty).
41
TEX. CODE CRIM. PROC. Art. 62.102 (2013).
42
18 PA. STAT. AND CONS. STATE. § 4915.1 (2018).
43
GA. CODE ANN., § 42-1-12(n)(1) (2019).
21
offenders. 44 In short, though West Virginia is among those states with the strongest
punishments for this crime, we do not find that West Virginia is alone or an anomaly
warranting interference with the Legislature’s reasoned decision to impose this punishment
on offenders like Mr. Hoyle.
Turning finally to the comparison of the sentence for second offense failure
to update to other crimes in our State, Mr. Hoyle asserts that his sentence is on par with
more dangerous crimes like sexual assault in the second degree45 and bank robbery.46 We
recall at this juncture that the former is the precise crime which gave rise to Mr. Hoyle’s
obligation to register as a sex offender in the first place. He further asserts that the penalty
exceeds that of several more heinous crimes like sexual abuse by a parent, guardian, or
custodian,47 and first degree sexual abuse of a child under the age of twelve by an adult
over eighteen.48 We take care to note that, with the exception of bank robbery, each of the
above named offenses is of a sexual nature. These are offenses that our Legislature has
chosen to punish in the strongest manner to protect the citizens of West Virginia. Few
44
See e.g., People v. Nichols, 97 Cal.Rptr.3d 702, 706 (2009) (upholding 25-year
sentence); State v. Wardell, 122 P.3d 443 (Mont. 2005) (upholding 25-year sentence).
45
W. Va. Code § 61-8B-4.
46
W. Va. Code § 61-2-12(c).
47
W. Va. Code § 61-8D-5 (ten- to twenty-year statutory penalty).
48
W. Va. Code § 61-8B-7(c) (five- to twenty-five-year statutory penalty).
22
crimes in our state carry a harsher punishment than the one given to Mr. Hoyle, but we note
that those crimes tend to be crimes of violence against the person.49
When taking the above considerations as a whole, we cannot conclude that a
sentence of ten to twenty-five years for second offense failure to register is
unconstitutionally disproportionate. We do not deny that the act of failing to update or
failing to register is, in itself, a nonviolent crime. But we also cannot deny that the
Legislature has expressed a clear and compelling interest in protecting our society from the
dangers unregistered sex offenders pose. And though the Legislature notes that the purpose
of the Act is primarily regulatory, we cannot ignore that it has incorporated numerous harsh
criminal punishments for failing to adhere to the Act’s requirements in an effort to further
the important policy goals that led to its enactment. When examining West Virginia’s
punishment for this crime in light of the same crime in other jurisdictions, we are mindful
that West Virginia’s penalty is among the strongest in the nation, but, as stated above, it is
not alone nor does it impose the most severe punishment. Even considering other crimes
in our state, our Legislature has evidenced a pattern of imposing significant punishments
for sexual offenses, and we cannot ignore that the Act’s requirements are part of that
scheme. So, we have little trouble concluding that the Legislature’s chosen penalty for
49
Specifically, we look to crimes such as kidnapping (W. Va. Code § 61-2-14a),
murder (W. Va. Code § 61-2-2), and treason (W. Va. Code § 61-1-2), all of which carry
penalties of life imprisonment. We note, yet again, that Mr. Hoyle was convicted of one
of these (kidnapping) in connection to the same transaction of events that led to his present
requirement to register as a sex offender.
23
second offense failure to register under West Virginia Code § 15-12-8(c) meets our
standards of constitutional proportionality, and therefore, we affirm the trial court’s
sentence in this matter.
D. The Recidivist Life Sentence
Finally, we turn to Mr. Hoyle’s argument that, for reasons similar to those
outlined above, his recidivist life conviction is unconstitutionally disproportionate in
violation of the Eighth Amendment to the United States Constitution and Article III,
Section 5 of the West Virginia Constitution. We apply the same standards of review
considered during our analysis of Mr. Hoyle’s sentence for second offense failure to
update. But, we agree with Mr. Hoyle that his recidivist life conviction is
unconstitutionally disproportionate as applied.50
West Virginia’s recidivist statute, West Virginia Code § 61-11-18(c),
provides:
When it is determined, as provided in section nineteen
of this article, that such person shall have been twice before
convicted in the United States for a crime punishable by
confinement in a penitentiary, the person shall be sentenced to
be confined in the state correctional facility for life.
50
We note at the outset that, due the following precedent, we see no need to perform
another analysis of the Cooper test for the recidivist conviction.
24
Addressing challenges to its constitutionality, we have addressed its
application in several other cases. First, in Syllabus Point 7 of State v. Beck,51 we held:
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 statute.
And, in State v. Deal, we noted that “[a]lthough 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.’”52
A discernible pattern emerges from our prior cases that two of the three
felonies considered for purposes of a recidivist conviction must be violent in nature to
justify the imposition of a life sentence under § 61-11-18(c) in the face of a proportionality
challenge. We first expressed this principle in State v. Kilmer,53 where we stated that “even
if . . . the predicate felony conviction involves violence, but none of the prior felony
convictions involve actual or threatened violence, imposing a recidivist life sentence
51
167 W. Va. 830, 286 S.E.2d 234 (1981).
52
178 W. Va. 142, 147, 358 S.E.2d 226, 231 (1987) (citing Wanstreet, 166 W. Va.
At 534, 276 S.E.2d at 212). Accord State ex rel Boso v. Hedrick, 182 W. Va. 701, 391
S.E.2d 614 (1990).
53
240 W. Va. 185, 808 S.E.2d 867 (2017).
25
violates proportionality.” 54 In that case, we reversed a recidivist conviction where the
offender had only a single violent felony, and further noted that the underlying purpose of
the recidivist statute is “the imposition of increased confinement for the dangerous criminal
who repeatedly commits serious crimes.”55
This principle is perhaps best illustrated by two recent, similar cases in which
this Court arrived at two different conclusions. First, in State v. Norwood,56 we upheld a
recidivist life sentence for an individual whose triggering felony was a conviction for
delivering heroin. The underlying crimes considered in that case were one violent felony
and one nonviolent felony. In our analysis, we determined that heroin trafficking was
inherently dangerous due to the drug’s often fatal nature on its users, and thus concluded
that the offense was sufficiently violent, when coupled with the prior violent felony, to
justify a recidivist life conviction.57 In contrast, in State v. Lane,58 we were faced with
nearly identical facts—one violent and one nonviolent underlying felony—but the
triggering felony was the trafficking of Oxycodone. We reasoned that, unlike heroin, and
54
Id. at 189, 808 S.E.2d at 871 (citing State v. Miller, 184 W. Va. 462, 400 S.E.2d
897 (1990)).
55
Id. at 187, 808 S.E.2d at 869.
56
242 W. Va. 149, 832 S.E.2d 75 (2019).
57
See State v. Norwood, 242 W. Va. 149, 832 S.E.2d 75 (2019) (Walker, C.J.,
concurring) (noting that the Court did not need to address proportionality in that case due
to Mr. Norwood’s waiver of that challenge).
58
241 W. Va. 532, 826 S.E.2d 657 (2019).
26
under the facts before the Court, Oxycodone trafficking was not a dangerous felony
sufficient to trigger a recidivist life conviction. In both cases, and in several cases prior,59
we illustrated the need for at least two of the three considered felonies to be violent before
we could sustain a recidivist life conviction. As a result, seeing the need for consistency
in our law, we hold that, for purposes of a life recidivist conviction under West Virginia
Code § 61-11-18(c), two of the three felony convictions considered must have involved
either (1) actual violence, (2) a threat of violence, or (3) substantial impact upon the victim
such that harm results. If this threshold is not met, a life recidivist conviction is an
unconstitutionally disproportionate punishment under Article III, Section 5 of the West
Virginia Constitution.
Here, Mr. Hoyle’s life recidivist sentence does not survive challenge because
of the way the sentencing court considered Mr. Hoyle’s prior felony convictions. At the
sentencing hearing below, there appeared to be confusion on this point, because Mr.
Hoyle’s first two felonies—second degree sexual assault and kidnapping—were part of a
single plea bargain. We emphasize that these crimes were prosecuted in separate counties,
although they arose from the same transaction of events, yet the sentencing court
considered them to be a single felony for purposes of the recidivist statute. We do not
59
See, e.g., Deal, 178 W. Va. at 147, 358 S.E.2d at 231 (overturning recidivist life
sentence where triggering felony was possession of marijuana with intent to deliver and
underlying felonies were unlawful wounding and grand larceny); Boso, 182 W. Va. at 709,
391 S.E.2d at 622 (overturning recidivist life sentence where triggering felony was night
time burglary and underlying felonies were possession of marijuana with intent to deliver
and breaking and entering).
27
decide today whether that determination was in error, rather, we simply note that this is the
record before us on appeal. As such, the sentencing court, for purposes of the recidivist
conviction, considered Mr. Hoyle’s three requisite felony convictions to be: (1) the 1988
convictions for kidnapping and second degree sexual assault; (2) the 2009 first offense
failure to register as a sex offender; and (3) the 2015 conviction for second offense failure
to update. Without a doubt, sexual assault in the second degree and kidnapping are both
violent crimes. Our next question, then, is whether failure to update one’s sex offender
registry is an offense that involves actual or threatened violence or imposes some
substantial impact upon the victim such that harm results.
In Mr. Hoyle’s case, although the offense that triggered the registration
requirement was certainly violent, his failure to update the registry was not. He violated a
regulatory statute by failing to remove an out-of-service phone number and to list a number
he was using. That omission does not involve violent acts, nor does it involve threatened
violence. First, we struggle to conceive of a scenario in which failing to update one’s
registry could involve actual violence. Second, while the failure to update may arguably
pose a risk of threatened violence because Mr. Hoyle could have committed some overt
sexual offense using his unmonitored phone or because law enforcement officers were
unable to monitor his whereabouts, such contentions are misplaced. They ignore the fact
that any violence threatened would not be part of the failure to update, but part of a separate
and distinct crime, whatever that crime may be. Finally, there is no substantial impact
imposed on a victim. The victim in this scenario is the State, because Mr. Hoyle is
28
depriving the State of accurate, updated contact information for purposes of the Act. While
having that updated information is important to best carry out the intent of the Legislature
that law enforcement monitor the activities of sex offenders to protect the public, the lack
of that information is not so substantial as to be comparable to actual or threatened violence.
For these reasons, we conclude that Mr. Hoyle’s recidivist life conviction, as
applied, is unconstitutionally disproportionate. First, in examining the triggering felony—
second offense failure to update—it is clear that there was no actual or threatened violence
or some substantial impact on the victim. Second, in examining Mr. Hoyle’s two
underlying felonies, due to the sentencing court’s characterization of these felonies, we are
compelled to find that there is a single violent (the combined kidnapping and second degree
sexual assault) and a single nonviolent (the first offense failure to register) felony.
Therefore, under our present holding, because only one of Mr. Hoyle’s three considered
felonies is violent, his recidivist conviction must be reversed. So, we reverse the circuit
court with regard to the imposition of Mr. Hoyle’s recidivist life sentence.
IV. CONCLUSION
For these reasons, we affirm the Circuit Court of Randolph County’s rulings
with respect to Mr. Hoyle’s motions for acquittal, the jury’s conviction for second offense
failure to update under West Virginia Code § 15-12-8(c), the contested jury instruction,
and the statutory ten- to twenty-five-year imprisonment sentence for second offense failure
to update. We reverse that portion of the Circuit Court of Randolph County’s sentencing
29
order of May 22, 2017, imposing a recidivist life conviction under West Virginia Code §
61-11-18(c).
Affirmed in part and reversed in part.
30