         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
