          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                 September 2017 Term
                                  _______________                          FILED

                                                                      November 14, 2017

                                    No. 15-0859                            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.

                                 MARC A. KILMER

                              Defendant Below, Petitioner


       ____________________________________________________________

                  Appeal from the Circuit Court of Berkeley County

                       The Honorable John C. Yoder, Judge

                            Criminal Action No. 14-F-36


                       REVERSED AND REMANDED

        _________________________________________________________

                             Submitted: September 13, 2017

                               Filed: November 14, 2017


Douglas F. Kobayashi, Esq.                     Catherine Wilkes-Delligatti, Esq.
KOBY LAW                                       Christopher C. Quasebarth, Esq.
Martinsburg, West Virginia                     Berkeley County Prosecuting Attorneys’
Counsel for the Petitioner                     Office
                                               Martinsburg, West Virginia
Kevin J. Watson, Esq.                          Counsel for the Respondent
Martinsburg, West Virginia
Counsel for the Petitioner



JUSTICE WALKER delivered the Opinion of the Court.


                                           i
CHIEF JUSTICE LOUGHRY dissents and reserves the right to file a dissenting opinion.


                              SYLLABUS BY THE COURT


              1.     “‘The Supreme Court of Appeals reviews sentencing orders . . .

under a deferential abuse of discretion standard, unless the order violates statutory or

constitutional commands.’ Syllabus point 1, in part, State v. Lucas, 201 W.Va. 271, 496

S.E.2d 221 (1997).” Syllabus Point 1, State v. Booth, 224 W.Va. 307, 685 S.E.2d 701

(2009).



              2.     “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, 528, 276

S.E.2d 205, 209 (1981).



              3.     “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


                                             ii
the more serious penalties and therefore justify application of the recidivist statute.”

Syllabus Point 7, State v. Beck, 167 W.Va. 830, 286 S.E.2d 31 (1981).



             4.     The felony offense of driving while license revoked for DUI under

West Virginia Code § 17B-4-3(c) is not an offense that involves actual or threatened

violence to the person for purposes of invoking the recidivist statute, West Virginia Code

§ 61-11-18(c).




                                           iii
WALKER, Justice:


              Marc A. Kilmer was sentenced to life in prison under the recidivist statute

based upon a predicate felony conviction for unlawful assault and two prior felony

convictions for driving while license revoked for driving under the influence (DUI). Mr.

Kilmer argues on appeal that his life sentence violates the proportionality clause of

Article III, Section 5 of the West Virginia Constitution because the two prior felony

offenses do not involve actual or threatened violence. The State asserts that the violence

of the predicate felony for unlawful assault satisfies the goals of the recidivist statute and

that Mr. Kilmer’s two prior felony convictions are factually similar to those in other cases

in which we have upheld recidivist life sentences. We conclude that the felony offense of

driving on a license revoked for DUI does not involve actual or threatened violence and

reverse the circuit court’s imposition of Mr. Kilmer’s recidivist life sentence.



                I.     FACTUAL AND PROCEDURAL BACKGROUND

              On February 19, 2014, a Berkeley County grand jury issued a seven-count

indictment against Mr. Kilmer based on a violent incident during which he inflicted

serious injuries upon his former girlfriend. The charges included two counts of malicious

assault, two counts of domestic battery, two counts of burglary, and one count of sexual

assault in the first degree. At trial, the jury found Mr. Kilmer guilty on two counts of

unlawful assault (a lesser included offense under malicious assault), two counts of

domestic battery, and one count of sexual assault in the second degree (a lesser included


                                              1

offense under first degree sexual assault). The jury acquitted Mr. Kilmer on the two

counts of burglary.



                Following trial, the State filed a recidivist information requesting a

sentence of life in prison under West Virginia Code § 61-11-18(c) based on Mr. Kilmer’s

conviction on count one for unlawful assault and on his prior convictions in 2010 and

2012 of two unrelated felonies for third-offense driving while license revoked for DUI.

At the subsequent hearing, Mr. Kilmer admitted the prior felony convictions under West

Virginia Code § 17B-4-3(b).1



                Before sentencing, Mr. Kilmer filed a motion opposing imposition of a life

sentence on the grounds that it violated the proportionality clause in Article III, Section 5

       1
           The pertinent statute stated:

                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, . . . 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.


W.Va. Code § 17B-4-3(b)(2015).




                                               2

of the West Virginia Constitution. The State responded that the life sentence satisfied the

requirements of the recidivist statute. The circuit court denied Mr. Kilmer’s motion and

sentenced him to life in prison.2 On appeal, Mr. Kilmer challenges this sentence and also

asserts that the circuit court abused its discretion by denying his “Motion for Judgment of

Acquittal and Vacating the Jury Verdict” on the grounds that the evidence was

insufficient for the jury to have found guilt beyond a reasonable doubt.3



                             II. STANDARD OF REVIEW

              “‘The Supreme Court of Appeals reviews sentencing orders . . . under a

deferential abuse of discretion standard, unless the order violates statutory or

constitutional commands.’ Syllabus point 1, in part, State v. Lucas, 201 W.Va. 271, 496




       2
          Sentences for the other convictions were time served for the two counts of
domestic battery, one to five years for the second count of unlawful assault and ten to
twenty-five years for sexual assault in the second degree. These sentences are not at
issue on appeal.
       3
         Based upon our review of the appendix record, we summarily conclude that the
circuit court did not abuse its discretion in denying Petitioner’s “Motion for Judgment of
Acquittal and Vacating the Jury Verdict.” Thus, we do not address it on the merits.




                                             3

S.E.2d 221 (1997).”4        With this standard in mind, we consider the constitutional

challenge raised in this case.



                                     III. DISCUSSION

                The issue before us is whether Mr. Kilmer’s recidivist life sentence5

violates the proportionality clause of the West Virginia Constitution, which states in

relevant part as follows:

                Excessive bail shall not be required, nor excessive fines
                imposed, nor cruel and unusual punishment inflicted.
                Penalties shall be proportioned to the character and degree of
                the offence.6



       4
           Syl. Pt. 1, State v. Booth, 224 W.Va. 307, 685 S.E.2d 701 (2009).
       5
        The circuit court imposed Mr. Kilmer’s life sentence under West Virginia Code
§ 61-11-18(c) (2014), which 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 of a crime punishable by
                confinement in a penitentiary, the person shall be sentenced
                to be confined in the state correctional facility for life.

       6
         W. Va. Const. Art. III, § 5. Mr. Kilmer appears to assert concurrently a violation
of the Eighth Amendment to the United State Constitution, but concedes that he “does
not complete a deep analysis of the federal law on this point.” He states that West
Virginia’s Constitution has a stricter standard than its federal counterpart. See State v.
Cooper, 172 W.Va. 266, 304 S.E.2d 851 (1983). Based upon our analysis, we need not
reach the federal constitutional issue – whether waived by Mr. Kilmer or not.




                                              4

As we have explained, proportionality applies to all criminal sentences but is more

germane to recidivist life sentences:

                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.7


                While the constitutionality of the recidivist statute is well-established in our

jurisprudence, we have “historically adopted a rather strict and narrow construction”

based upon its harsh result.8 We also consider the underlying purpose of the statute –

“the imposition of increased confinement for the dangerous criminal who repeatedly

commits serious crimes.”9 With this background in mind, we determine whether Mr.

Kilmer’s sentence offends constitutional limitations.



                We consider the recidivist life sentence in this case according to the

objective test of compliance with the proportionality clause. As we have explained:

                       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


       7
           Syl. Pt. 4, Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981).

       8
           Id. at 525, 276 S.E.2d at 207-08.

       9
           Id. at 533, 276 S.E.2d at 211.





                                                5

                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.10


In State v. Beck, we applied this test and affirmed a recidivist life sentence based upon a

predicate felony conviction for first degree sexual assault of the defendant’s ten-year-old

stepdaughter.11 The underlying felony convictions were for unlawful assault and for

interstate transportation of a stolen vehicle.12 In Beck, we noted that the violent nature of

the felony convictions at issue in that case were distinguishable from those we considered

in Wanstreet v. Bordenkircher,13 a case decided four months prior to Beck.



                In Wanstreet, we considered a challenge to a recidivist life sentence

imposed based on the predicate felony of forgery of a $43.00 check.14 The two prior



       10
             Syl. Pt. 7, State v. Beck, 167 W.Va. 830, 286 S.E.2d 234 (1981) (emphasis
added).
       11
            Id. at 832, 286 S.E.2d at 237.
       12
            Id. at 846, 286 S.E.2d at 244.
       13
            166 W.Va. 523, 276 S.E.2d 205.
       14
            Id. at 525, 276 S.E.2d at 207.




                                               6

felony convictions analyzed in that case were forgery of an $18.62 check and arson of a

barn.15 We concluded that the recidivist life sentence violated proportionality based on

the nonviolent nature of the predicate felony of forgery and “the similar nature of the two

previous crimes” of forgery and arson of a barn.16 In Wanstreet, we emphasized that

ignoring the gravity of the underlying offenses in the context of an analysis of the

proportionality clause “would ignore the rationality of our criminal justice system where

penalties are set according to the severity of the offense.”17



                  The State urges us to affirm Mr. Kilmer’s recidivist life sentence because

the predicate felony conviction for unlawful assault establishes that he is violent – an

issue not before us in Wanstreet or Beck. However, the State’s assertion that the violence

of the triggering felony alone justifies the imposition of the recidivist life sentence in this

case is inconsistent with our decision in State v. Miller.18 In Miller, we reversed a



       15
          Id. at 535, 276 S.E.2d at 213. While the Wanstreet court noted in its factual
discussion that the defendant had also served three years in the penitentiary for driving a
motor vehicle without a license – technically a third underlying felony – the Court’s
analysis of the prior felony offenses omitted any discussion of the driving without a
license offense. Id. at 525, 535, 276 S.E.2d at 207, 211.
       16
            Id. at 537-38, 276 S.E.2d at 214.
       17
            Id.
       18
            184 W.Va. 462, 400 S.E.2d 897 (1990).

                                                                              (continued . . .)




                                                7

recidivist life sentence in spite of the violent predicate felony conviction of unlawful

assault (defendant shot the victim in the hand and the stomach).19 The prior felony

convictions in Miller were breaking and entering, forgery and uttering, and false

pretenses.20 As we explained:

                . . . we generally require that the nature of the prior felonies
                be closely examined. While not exclusive, the propensity for
                violence is an important factor to be considered before
                applying the recidivist statute. In the case now before us, we
                recognize that although the appellant’s 1986 unlawful assault
                conviction was for a violent felony, none of his three
                underlying felonies actually involved violence.21




       The State argues that Mr. Kilmer was convicted of three felonies involving the
incident at issue here. Miller, the State points out, involved a conviction on one count of
unlawful assault. But the recidivist statute limits the inquiry to the predicate felony and
the two prior felony convictions. Mr. Kilmer will serve the sentences related to the
crimes for which he was convicted, which is in keeping with the constitutional principle
of proportionality between the penalty and the offense established in Article III, Section
5.
       19
            Id. at 465, 400 S.E.2d at 900.
       20
            Id. at 463, 400 S.E.2d at 898.
       21
            Id. at 465, 400 S.E.2d at 900.




                                               8

Our holding in Miller establishes that even if, as in this case, the predicate felony

conviction involves violence, but none of the prior felony convictions involve actual or

threatened violence, imposing a recidivist life sentence violates proportionality.22



                  The State also argues that Miller is inapplicable to this case because the

prior felonies in that case occurred over the course of two decades. In contrast, Mr.

Kilmer was released from prison just months before he unlawfully assaulted his former

girlfriend. By this assertion, the State suggests that the length of time between the

predicate offense and the two prior felony convictions is a factor in the application of the

recidivist statute. We find that the holding of this case does not turn on the length of time

between the two prior felony offenses and the predicate felony conviction. The material

question is whether the two prior felony convictions involve actual or threatened

violence. Thus, the State’s timing argument is irrelevant.



                  Finally, the State argues that Mr. Kilmer’s prior felony convictions for

third-offense driving while license for revoked for DUI involve actual or threatened

violence based upon a comparison with our decision in State ex rel. Appleby v. Recht.23



       22
            Id.
       23
            213 W.Va. 503, 583 S.E.2d 800 (2002).




                                               9

In Appleby, we considered whether a recidivist life sentence violates proportionality

principles when based on a predicate felony of third-offense DUI and on three prior

convictions for the same felony offense.24 We concluded unequivocally that the DUI

convictions involved actual or threatened violence and explained:

                Mr. Appleby’s record includes an astounding four third-
                offense driving under the influence felony convictions (and a
                grand total of eight acts of driving under the influence), and
                one unlawful assault conviction. We have little trouble in
                finding that driving under the influence is a crime of violence
                supporting imposition of a recidivist sentence.25


We concluded that the potential or threat of violence is always present in the case of DUI

because “‘. . . driving while intoxicated inherently creates a grave risk of injury to

persons and property and raises very significant concerns for public safety.’”26



                In contrast, we find that no such element of danger is inherently part of a

conviction for driving while license revoked for DUI. The State cites no authority to

support the notion that simply driving a vehicle on a revoked license, whether revoked as

a result of a DUI or otherwise, is violent or renders the offender a risk to the public.


       24
            Appleby, 213 W.Va. at 507-08, 583 S.E.2d at 804-05.

       25
            Id. at 516, 583 S.E.2d at 813 (emphasis in original) (footnote omitted).

       26
         Id. at 517, 583 S.E.2d at 814 (quoting, in part, State v. Croston, 860 P.2d 674,

675-76 (Idaho Ct. App. 1993)) (footnote omitted).




                                               10

Further, the State fails to offer any proof that these convictions have predisposed Mr.

Kilmer or any other criminal defendant in a factually similar situation to a lifetime of

violence. Thus, we decline to extend the holding of Appleby to the present case. We

hold that the felony offense of driving while license revoked for DUI under West

Virginia Code § 17B-4-3(c) is not an offense that involves actual or threatened violence

to the person for purposes of invoking the recidivist statute, West Virginia Code § 61-11­

18(c). The recidivist life sentence imposed on Mr. Kilmer based upon the predicate

felony conviction for unlawful assault, together with two prior non-violent felony

convictions, violates the proportionality principle in Article III, Section 5, of the West

Virginia Constitution.



                                  IV. CONCLUSION

             The sentence of life in prison imposed by the circuit court order is reversed

and the case is remanded for resentencing on count one, unlawful assault.



                                                       REVERSED AND REMANDED.




                                           11

