                                                                             FILED
                                                                        November 14, 2017
State v. Kilmer, 15-0859                                                      released at 3:00 p.m.
                                                                          EDYTHE NASH GAISER, CLERK
                                                                          SUPREME COURT OF APPEALS
LOUGHRY, Chief Justice, dissenting:                                            OF WEST VIRGINIA



              I dissent to the majority’s decision to reverse the petitioner’s recidivist

sentence. This sentence–life in prison with the possibility of parole–is mandated by the

Legislature through West Virginia Code § 61-11-18(c) (2014): “When it is determined . . .

that such person shall have been twice before convicted” of a felony, “the person shall be

sentenced to be confined in the state correctional facility for life.” Id. (emphasis added).1

Contrary to the majority’s conclusion, there is nothing constitutionally disproportionate about

imposing a sentence of life with the possibility of parole upon a criminal who brutally beats

and then sexually assaults an injured woman, when these violent offenses represent an

escalation in the culprit’s existing felonious criminal record.



              Many factors must be considered when addressing the proportionality of a

recidivist life sentence under West Virginia Constitution article III, section five. In the




       1
         When enacting the recidivist statute, the Legislature made a public policy decision
to punish repeat felons more harshly. “‘The Legislature has power to create and define
crimes and fix their punishment[.]’ Syl. Pt. 2, in part, State v. Woodward, 68 W.Va. 66, 69
S.E. 385 (1910).” Syl. Pt. 2, State v. Butler, 239 W.Va. 168, 799 S.E.2d 718 (2017). It is
most certainly not the job of this Court to second-guess the Legislature on matters of public
policy. See Syl. Pt. 2, in part, Huffman v. Goals Coal Co., 223 W.Va. 724, 679 S.E.2d 323
(2009) (“This Court does not sit as a superlegislature, commissioned to pass upon the
political, social, economic or scientific merits of statutes pertaining to proper subjects of
legislation.”).

                                              1
analysis, initial emphasis is placed on the nature of the “final” felony, i.e., the offense for

which the recidivist life sentence is imposed:

                      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 recidivist statute.

Syl. Pt. 7, State v. Beck, 167 W.Va. 830, 286 S.E.2d 234 (1981). “Although 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.’” State v. Deel, 178

W.Va. 142, 147, 358 S.E.2d 226, 231 (1987) (quoting Wanstreet v. Bordenkircher, 166

W.Va. 523, 534, 276 S.E.2d 205, 212 (1981)). In addition to considering the actual violence

surrounding the perpetrator’s felonies, a court takes into account the possibility for violence

and harm: “Rather clearly our law indicates that crimes involving the potentiality of violence

fall in the category of those supporting the imposition of a life sentence under the recidivist

statute.” State v. Oxier, 179 W.Va. 431, 433, 369 S.E.2d 866, 868 (1988) (recognizing that

crime of breaking and entering carries potential for violence and danger to life); see also

State v. Housden, 184 W.Va. 171, 175, 399 S.E.2d 882, 886 (1990) (concluding that burglary

and grand larceny involve “the threat of harm or violence” and justify imposition of recidivist

life sentence).

                                               2
               Moreover, while an examination of the violent (or potentially violent) nature

of the perpetrator’s felonies is part of the proportionality analysis, it is certainly not the sole

consideration. See State v. Miller, 184 W.Va. 462, 465, 400 S.E.2d 897, 900 (1990)

(Acknowledging that while propensity for violence is “an important factor[,]” it is “not [the]

exclusive” factor to be considered in a recidivist analysis); c.f. State ex rel. Chadwell v.

Duncil, 196 W.Va. 643, 649, 474 S.E.2d 575, 579 (1996) (considering facts surrounding theft

of almost $1,500 in goods from several stores to conclude that five-year recidivist

enhancement under W.Va. Code § 61-11-18(a) was constitutionally proportionate for

defendant convicted of felony grand larceny who had prior felony conviction of non-violent

third offense shoplifting). When considering any claim of disproportionate sentencing, this

Court considers many different factors pursuant to two tests: one subjective and one

objective. Under the subjective test, a sentence is unconstitutional if it “shocks the

conscience and offends fundamental notions of human dignity[.]” Syl. Pt. 5, in part, State

v. Cooper, 172 W.Va. 266, 304 S.E.2d 851 (1983). The objective test instructs us to consider

such things as “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.” Wanstreet, 166 W.Va. at 523-

24, 276 S.E.2d at 207, syl. pt. 5, in part.




                                                3
              Turning to the facts of this appeal, the petitioner’s final felony, unlawful

assault, was part of a horribly violent attack that he perpetrated upon his former girlfriend.2

The evidence at trial indicated that, after refusing the victim’s demand that he leave her

home, the petitioner grabbed the victim, threw her on the hood of a car, picked her up again,

and threw her on the floor of a carport causing her head to strike concrete. He then began

choking the victim after which he threw her body toward a mud room. After knocking her

to the mud room floor, he resumed choking her. Because he was searching for her hidden

house key and was growing increasingly agitated, the victim was forced to give him the key.

Once inside the victim’s home, the petitioner grabbed the victim and slammed her to the

floor. When she tried to stand, she fell because of terrible pain in her hip that was later

determined to be caused by a fractured pelvis. The petitioner picked the victim up again,

slammed her on the bedroom floor, and again choked her. He tried to remove her pants while

she attempted to fend him off. The petitioner removed his belt, which the victim feared he

would use to choke her. Afraid for her life, and despite her broken pelvis and other injuries,

the victim was forced to endure the petitioner’s sexual assault upon her. Thereafter, the

victim was unable to walk without assistance because of pain from her injuries. Medical

evidence showed the petitioner beat the victim so badly that in addition to breaking her



       2
       The jury found the petitioner guilty of two counts of unlawful assault, West Virginia
Code § 61-2-9(a) (2014 & Supp. 2017); two counts of domestic battery, West Virginia Code
§ 61-2-28(a) (2014 & Supp. 2017); and sexual assault in the second degree, West Virginia
Code § 61-8B-4 (2014).

                                              4
pelvis, he fractured three of her ribs, caused one of her lungs to deflate, and left her body

covered with bruises and strangulation marks. The victim was hospitalized for almost two

weeks, required the assistance of a walker while regaining the ability to walk, and could not

work for two months. There can be no dispute that this was a heinous crime of violence.

Indeed, this Court has previously recognized that unlawful assault is a crime of violence for

purposes of a proportionality analysis. See Miller, 184 W.Va. at 465, 400 S.E.2d at 900

(stating that unlawful assault is “unquestionably a violent crime”).



                The petitioner’s two prior felonies, which must be taken into account but

receive less scrutiny than the current offense,3 do not change the outcome of the

proportionality analysis. The petitioner was convicted of driving while his license was

revoked because he drove a vehicle while under the influence of alcohol or drugs (“DUI”),

in violation of West Virginia Code § 17B-4-3(b) (2013 & Supp. 2017).4 Contrary to the

       3
        As explained above, “although sole emphasis cannot be placed on the character of
the final felony, it is entitled to closer scrutiny than the other convictions[.]” Miller, 184
W.Va. at 465, 400 S.E.2d at 900 (citation and internal quotation marks omitted).
       4
           West Virginia Code § 17B-4-3(b) provides:

                (b) 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, controlled substances or other drugs, or any
                combination thereof, or for driving while having an alcoholic
                concentration in his or her blood of eight hundredths of one
                percent or more, by weight, or for refusing to take a secondary
                chemical test of blood alcohol content, is, for the first offense,

                                                5
petitioner’s argument, his license was not revoked for some malum prohibitum reason, such

as the failure to renew his driver’s license or pay parking tickets. If that had been the

situation, these crimes would never have constituted felonies. Pursuant to West Virginia

Code § 17B-4-3(a),5 the crime of driving while revoked for some reason other than DUI is

always a misdemeanor, even if committed three or more times. However, in West Virginia



               guilty of a misdemeanor and, upon conviction thereof, shall be
               confined in jail for a period of not less than thirty days nor more
               than six months and shall be fined not less than $100 nor more
               than $500; for the second offense, the person is guilty of a
               misdemeanor and, upon conviction thereof, shall be confined in
               jail for a period of not less than six months nor more than one
               year and shall be fined not less than $1,000 nor more than
               $3,000; 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.
      5
          West Virginia Code § 17B-4-3(a) provides:

                        (a) Except as otherwise provided in subsection (b) or (d)
               of this section, 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 suspended or revoked by this state or
               any other jurisdiction is, for the first offense, guilty of a
               misdemeanor and, upon conviction thereof, shall be fined not
               less than $100 nor more than $500; for the second offense, the
               person is guilty of a misdemeanor and, upon conviction thereof,
               shall be fined not less than $100 nor more than $500; for the
               third or any subsequent offense, the person is guilty of a
               misdemeanor and, upon conviction thereof, shall be confined in
               jail for a period of not less than thirty days nor more than ninety
               days and shall be fined not less than $150 nor more than $500.

                                               6
Code § 17B-4-3(b), the Legislature expressly made a third or subsequent offense of driving

while revoked for DUI a felony punishable by a “mandatory prison sentence.”6



                 The obvious reason why the offense of driving while revoked for DUI is

punished more severely than other forms of driving on a revoked license, is the dangerous

nature of DUI and the importance to public safety of keeping drunk drivers from returning

to the roads. This is the same reason why the Court concluded that DUI is a crime of

potential violence supporting the imposition of a recidivist sentence. See State ex rel.

Appleby v. Recht, 213 W.Va. 503, 583 S.E.2d 800 (2002). When a person drives drunk, “[i]t

is sheer fortuity . . . that he killed no pedestrians while behind the wheel.” Appleby, 213

W.Va. at 515, 583 S.E.2d at 812 (citation and internal quotation marks omitted). Notably,

the petitioner had to commit this serious crime at least four separate times to rack up two

felony convictions.7




       6
           See supra, note 4.
       7
        In accordance with West Virginia Code § 17B-4-3(b), only the petitioner’s third and
fourth convictions for driving while revoked for DUI constituted felonies. However, the fact
that these two crimes were enhanced to become felonies is irrelevant to the recidivist
analysis. See Syl. Pt. 3, in part, State v. Williams, 196 W.Va. 639, 474 S.E.2d 569 (1996)
(“Despite the fact that a third offense DUI felony conviction . . . results from an enhanced
misdemeanor, the Legislature intended that this type of felony conviction be used for
sentence enhancement in connection with the terms of the recidivist statute[.]”); Chadwell,
196 W.Va. at 647, 474 S.E.2d at 577 (concluding that felony third offense shoplifting may
be used for recidivist enhancement).

                                             7
              When the petitioner’s two prior felonies are considered in conjunction with the

multiple violent felonies he committed against his ex-girlfriend in the instant case, it is clear

that the petitioner has demonstrated a pattern of undeterred, escalating felonious behavior.

Avoiding such repetition and escalation is exactly what the recidivist statute seeks to prevent:

                     The primary purpose of our recidivist statutes, W.Va.
              Code, 61-11-18 (1943), and W.Va. Code, 61-11-19 (1943), is to
              deter felony offenders, meaning persons who have been
              convicted and sentenced previously on a penitentiary offense,
              from committing subsequent felony offenses. The statute is
              directed at persons who persist in criminality after having been
              convicted and sentenced once or twice, as the case may be, on
              a penitentiary offense.

Syl. Pt. 3, State v. Jones, 187 W.Va. 600, 420 S.E.2d 736 (1992); accord Appleby, 213 W.Va.

517, 583 S.E.2d at 814 (“West Virginia Code § 61-11-18 is designed to deter those who are

incapable of conforming their conduct to legitimately enacted obligations protecting society.

. . . States have a valid interest in deterring and segregating habitual criminals . . . and a

compelling interest in ensuring the safety of the public roadways.”) (internal citations and

quotation marks omitted). To that end, the Legislature ordered that persons with three felony

convictions “shall be sentenced to . . . [prison] for life.” W.Va. Code § 61-11-18(c).



              Having considered this matter in terms of both subjective and objective

considerations, I am convinced that the petitioner’s recidivist life sentence should stand.

Imposing a life sentence with the possibility of parole upon a three-time felon who brutally

beat and sexually assaulted a woman, certainly does not shock my conscience. Moreover,

                                               8
objective considerations weigh in favor of this recidivist sentence, including the violent

nature of the final felony, the Legislature’s intent to punish with a “mandatory prison

sentence” the crime of driving while revoked for DUI, and the deterrent purpose underlying

the recidivist statute.



               In reversing this recidivist sentence, the majority ignores many relevant

considerations, including the horribly violent nature of the petitioner’s unlawful assault, to

focus entirely upon the nature of the petitioner’s prior felonies. Then, the majority fails to

recognize that serious safety concerns underlie the revocation of a driver’s license for DUI.

The majority’s narrow, short-cited analysis is plainly contrary to our law. Because I find no

basis on which to vacate the recidivist life sentence, I respectfully dissent.8




       8
         I also find fault with the majority’s failure to address one of the petitioner’s two
assignments of error; specifically, his claim that the circuit court erred by denying his motion
for judgement of acquittal on the grounds of insufficiency of the evidence. The evidence of
record clearly demonstrates that there was sufficient evidence to convict the petitioner–yet
the majority refuses to even discuss this assignment of error. Perhaps the majority ignored
this issue because cataloguing the evidence would highlight the exceptionally violent nature
of the petitioner’s recent crimes and thus detract from the majority’s flawed analysis of the
proportionality issue.

                                               9
