State v. Oxier

PER CURIAM:

This is an appeal by James Oxier from an order of the Circuit Court of Grant County sentencing him to life in the State penitentiary as a habitual criminal. He claims that the imposition of a life sentence in his case violates the proportionality principle contained in Article III, Section 5 of the West Virginia Constitution and in the Eighth Amendment of the United States Constitution. After reviewing the record, this Court disagrees, and affirms the judgment of the Circuit Court of Grant County.

In May, 1966, the defendant broke into a store at Valley Head, West Virginia, and stole cigars, cigarettes, and change valued at approximately $65.00. He was not armed at the time, and no one was present. For that activity he was subsequently convicted of breaking and entering.

In May, 1977, the defendant stole $312.00 worth of copper wire from the Chessie System Railroad. Later in the same year he stole á canoe worth $455.00 from an unoccupied residence. For the first crime he was convicted of grand larceny. For stealing the canoe he was convicted of breaking and entering.

On December 13, 1983, the event which triggered the present appeal occurred. In the early morning hours of that day the defendant, and several other persons, broke into a store located at Job, West Virginia. During the break-in an alarm sounded and alerted the storekeeper and members of his family, who armed themselves and went to the store. As they approached the store, someone from inside shot at them. A shoot-out ensued, and during the shoot-out the defendant was severely wounded in the right leg. He was *432later apprehended, tried, and convicted of breaking and entering.

Following the defendant’s conviction, the prosecuting attorney of Grant County, pursuant to the provisions of W.Va.Code, 61-11-18, filed a recidivist information indicating that the defendant had been convicted of breaking and entering in 1966, and that he had again been convicted of breaking and entering in 1978. The information also indicated that the defendant had been convicted of grand larceny in 1979. A recidivist trial was conducted, and at the conclusion of the trial it was determined that the defendant had been convicted of the prior crimes and that he was a recidivist. He consequently was sentenced to life in the penitentiary. He appealed his conviction, and in State v. Oxier, 175 W.Va. 760, 338 S.E.2d 360 (1985), this Court reversed it for trial errors. The Court also remanded the case for a new trial.

The new trial was conducted, and the defendant was again convicted. He was again tried on the recidivist issue, and after being found to be a recidivist, he was again sentenced to life in the penitentiary.

In the present proceeding the defendant claims that imposition of a life sentence upon a conviction of breaking and entering, following prior convictions for the same offense and for grand larceny, violates Article III, Section 5 of the West Virginia Constitution and the Eighth Amendment of the United States Constitution. He specifically argues that the sentence imposed upon him was not proportionate to the character and degree of his offense.

In syllabus point 8 of State v. Vance, 164 W.Va. 216, 262 S.E.2d 423 (1980), this Court stated that:

Article III, Section 5 of the West Virginia Constitution, which contains the cruel and unusual punishment counterpart to the Eighth Amendment of the United States Constitution, has an express statement of the proportionality principle: “Penalties shall be proportioned to the character and degree of the offence.”

In Martin v. Leverette, 161 W.Va. 547, 244 S.E.2d 39 (1978), the Court also recognized that proportionality analysis is appropriate when enhanced sentences are applied under West Virginia’s recidivist statute, W. Va. Code, 61-11-18. The Court indicated that while the statute itself is not per se unconstitutional, application of it in a particular case may be unconstitutional if the sentence imposed is so disproportionate to the underlying offenses as to constitute cruel and unusual punishment. In determining whether the sentence is disproportionate, the Court should look at a number of factors including the nature of the defendant’s offenses. Martin v. Leverette, supra, Hart v. Coiner, 483 F.2d 136 (4th Cir.1973), cert. denied, 415 U.S. 983, 94 S.Ct. 1577, 39 L.Ed.2d 881 (1974).

In State v. Vance, supra, the Court addressed the question of whether the application of the habitual criminal statute, W. Va. Code, 61-11-18, to a party convicted of breaking and entering constitutes cruel and unusual punishment under the State or Federal Constitutions. The Court examined two cases involving defendants convicted of crimes similar to those of which the defendant in the present proceeding was convicted. In the first case, Griffin v. Warden, 517 F.2d 756 (4th Cir.1975), cert. denied, 423 U.S. 990, 96 S.Ct. 402, 46 L.Ed.2d 308 (1975), the defendant was convicted of burglary and armed robbery. The court found in Griffin that the presence of the potentiality of violence against a person in the crimes committed by the defendant was a factor which would support a life sentence in a recidivist proceeding. The court also found that burglary and armed robbery carried the potentiality of violence. In the second case, Rummel v. Estelle, 587 F.2d 651 (5th Cir.1978), cert. granted, 441 U.S. 960, 99 S.Ct. 2403, 60 L.Ed.2d 1064 (1979), both the Fifth Circuit and the Supreme Court of the United States refused to reverse a recidivist life sentence on the ground that it was cruel and inhuman where the underlying offenses were obtaining money under false pretenses, fraudulent use of a credit card, and passing a forged check. In State v. Vance, the defendant’s underlying convictions were three felony breaking and enter-ings. The Court refused to reverse the life *433conviction. In so doing, the Court said: “We decline to apply the proportionality doctrine in the present case, since we believe the crime of breaking and entering carries the potentiality of violence and danger to life as well as to property.” State v. Vance, supra 164 W.Va. at 233, 262 S.E.2d at 432.

In the case presently under consideration, the defendant was previously convicted of grand larceny as well as breaking and entering. He was charged with and convicted of breaking and entering immediately prior to his recidivist conviction. The facts of the last crime show that it not only carried the potentiality of violence against persons, but that it actually involved a shoot-out.

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. In view of the fact that the crime of breaking and entering potentially involves violence and danger to life, as well as the fact that there was actual violence against persons in the last crime with which the defendant was charged, this Court concludes that under the principles enunciated in State v. Vance, supra, the trial court did not err in imposing a life sentence upon the defendant under West Virginia’s recidivist statute. The Court also believes that the defendant has failed to show any other factor which would indicate that imposition of the life sentence was improper.

The judgement of the Circuit Court of Grant County is, therefore, affirmed.

Affirmed.