                                                                   FILED
No. 18-0945 – State of West Virginia v. Collins               February 25, 2019
                                                               EDYTHE NASH GAISER, CLERK
                                                               SUPREME COURT OF APPEALS
WORKMAN, J., concurring:                                           OF WEST VIRGINIA


                I concur in the majority’s determination that, under the current state of our

law both here and nationwide, imposition of West Virginia Code § 15-12-8(c)’s mandatory

sentence of ten to twenty-five years is not constitutionally disproportionate in this case.

Like the defendant in Hoyle,1 decided in the preceding term of Court, petitioner committed

multiple offenses in violation of his registration requirements. West Virginia Code § 15-

12-8(c) mandates that “second or subsequent offense[s]” result in a ten to twenty-five year

sentence.     As both this Court and the United States Supreme Court have long-

acknowledged, “the substantive power to prescribe crimes and determine punishments is

vested with the legislature[.]” Ohio v. Johnson, 467 U.S. 493, 499 (1984); see State ex rel.

Morgan v. Trent, 195 W. Va. 257, 262, 465 S.E.2d 257, 262 (1995) (“‘[L]egislatures, not

courts, define criminal liability[.]’” (quoting Crandon v. United States, 494 U.S. 152, 158

(1990).



                I write separately, however, to caution that the rigid mandatory sentence for

second or subsequent offenses may under the proper circumstances fail the subjective test

under State v. Cooper, 172 W. Va. 266, 304 S.E.2d 851 (1983). More importantly, there

appears to be an incremental evolution of the courts’ treatment of such statutes, such that




       1
           State v. Hoyle, ____ W. Va. ____, 836 S.E.2d 817 (2019).

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even the objective test2 for disproportionality that this statute has now twice survived, may

ultimately fail. As the facts of this particular case suggest, replacement of the mandatory

ten to twenty-five year sentence in favor of a discretionary sentencing structure which is

registrant-specific may be required to pass constitutional muster under certain

circumstances. While petitioner in this case was relentlessly recalcitrant in his registration

obligations, one cannot ignore the fact that petitioner’s underlying misdemeanor conviction

occurred nearly fourteen years ago and that his registration violations occurred early into

his post-conviction life while he was still a relatively young man. There has been no

evidence whatsoever of any intervening predatory offenses or any intent to utilize the

unregistered internet outlets for nefarious purposes.



              It takes no great stretch of imagination to envision a scenario involving a

couple of minor registration offenses committed well into the lifetime requirements by

someone who committed their underlying offense decades prior while fairly young and has

otherwise been a model citizen. Surely this possibility suggests that a sentencing scheme

which places discretion in the circuit court to fashion an appropriate penalty should be

considered to ensure the continued constitutional vitality of our Registration Act. I

therefore encourage the Legislature to carefully scrutinize the Registration Act in toto to




       2
         See Syl. Pt. 5, Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981)
(setting forth objective proportionality test).

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ensure that our salutary desire to monitor sex offenders is being well-served by the specific

contours of the Act.



              For the foregoing reasons, I respectfully concur.




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