dissenting:
The decision reached by the majority today is, I believe, out of step with recent Eighth Amendment case law and fails to follow the express guarantee of proportionality contained in W.Va.Const. art. Ill, § 5. I, therefore, respectfully dissent.
There is no question that W.Va.Code, 61-11-18, authorizes the imposition of a life sentence upon a third felony conviction. However, as we recognized in State v. Vance, 164 W.Va. 216, 262 S.E.2d 423 (1980), a life sentence imposed by this statute is subject to our constitutional proportionality principle: “Penalties shall be proportioned to the character and degree of the offence.” W.Va.Const. art. Ill, § 5. This principle was more fully developed in Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981), where we set out this test in Syllabus Point 5:
“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.”
The majority seizes upon language from Vance where we stated that “the crime of breaking and entering carries the potentiality of violence and danger to life as well as to property.” 164 W.Va. at 233, 262 S.E.2d at 432. This skews the proportionality analysis around only one factor which, in view of Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), is of dubious validity.1
Helm offers a valuable factual parallel. Mr. Helm was thrice convicted of third-degree burglary, a felony under South Dakota law. Other prior felonies included grand larceny, obtaining money by false pretenses, and third-offense driving while intoxicated. His last conviction, for which an enhanced sentence was sought, was for uttering a “no account” check. After he was adjudged a recidivist, Mr. Helm was sentenced to life imprisonment without possibility of parole.
*434The Supreme Court concluded that the recidivist life sentence violated the requirement of proportionality implicit in the Eighth Amendment. It stressed that a defendant’s status as a recidivist cannot be “considered in the abstract,” and proceeded to review Mr. Helm’s felony record. While all of his prior convictions were felonies, they were “relatively minor” in that they involved property of minimal value. Further, each crime was deemed to be “nonviolent” and was directed solely against property. 463 U.S. at 296-97, 103 S.Ct. at 3013, 77 L.Ed.2d at 653.
Helm teaches two important lessons. First, a defendant cannot be sentenced as a recidivist simply because he has been convicted of prior “felonies.” The Eighth Amendment, at a minimum, requires an inquiry into the seriousness of the underlying felony convictions. As Helm illustrates, the seriousness of a crime is dependent upon whether it may be characterized as “violent” or “nonviolent,” and whether the criminal conduct was directed against person or property.
Second, a breaking and entering is not per se a crime of violence. Helm characterized third-degree burglary as a nonviolent crime. This is significant, for South Dakota’s third-degree burglary statute was quite broad and even embraced the nighttime entry of a dwelling.2 West Virginia’s breaking and entering statute, by contrast, is limited to the entry of a building other than a dwelling or of specified vehicles and vessels.3 Vance’s presumption that breaking and entering is a violent crime cannot, therefore, be squared with Helm.
This case, like Helm, presents a situation in which a defendant was sentenced to life imprisonment as a recidivist without any prior conviction for a violent felony. Under our settled analysis in Wanstreet, such a result cannot be sustained.
Wanstreet states that the proportionality of a recidivist life sentence is to be determined by two reference points: (1) the third felony, and (2) the prior felonies which support enhancement of the sentence. Mr. Oxier’s most recent felony conviction arose out of a break-in at a country store. Of particular importance for proportionality purposes are the circumstances of that crime. Mr. Oxier was unarmed and, if his testimony is believed, he attempted to dissuade his confederates from committing the crime. Further, it was Mr. Oxier and not an innocent third party who sustained injury in the fray.
Wanstreet’s second reference point is the defendant’s prior felony record. Each of Mr. Oxier’s prior convictions was for a property crime and, as discussed above, was nonviolent. Each was also “relatively minor,” to borrow a phrase from Helm. The May, 1977 larceny involved copper wire valued at a mere $312. The property stolen in the two breaking and entering incidents included cigarettes valued at $65 and a canoe. The structures were not occupied at the time of entry. In each of these incidents, the defendant was convicted and served time. While one cannot condone these crimes, it is difficult to perceive that they demonstrate Mr. Oxier to be either a dangerous or violent criminal.
A life sentence is the maximum penalty prescribed by West Virginia law. Historically, the penalty has been reserved for specific intent crimes which involve violence or reckless indifference to life. Mr. Oxier’s criminal record does not exhibit any discernible trend of violence. I submit that it does not further the purpose of our recid*435ivist statute, or of our penal system, to apply that penalty to Mr. Oxier. I dissent.
. It must be remembered that our proportionality cases, e.g., Vance and Wanstreet, were decided under our own Constitution and at a time when it appeared that the United States Supreme Court was taking an extremely restrictive view of the proportionality principle under the Cruel and Unusual Punishment Clause of the Eighth Amendment. See Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980).
. S.D.Comp.Laws Ann. § 22-32-8 (1967) (repealed 1976) provided: "A person breaking into any dwelling house in the nighttime with intent to commit a crime but under such circumstances as do not constitute burglary in the first degree, is guilty of burglary in the third degree."
. W.Va.Code, 61-3-12, provides in part:
“If any person shall, at any time, break and enter, or shall enter without breaking, any office, shop, storehouse, warehouse, banking house, or any house or building, other than a dwelling house or outhouse adjoining thereto or occupied therewith, or any railroad or traction car, propelled by steam, electricity or otherwise, or any steamboat or other boat or vessel, within the jurisdiction of any county in this State, with intent to commit a felony or any larceny, he shall be deemed guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than one nor more than ten years."