                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS



State of West Virginia,                                                             FILED
Plaintiff Below, Respondent                                                        May 24, 2013
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
vs.) No. 12-0270 (Taylor County 11-F-36)                                        OF WEST VIRGINIA


Raymond Bearer,
Defendant Below, Petitioner

                                 MEMORANDUM DECISION

        Petitioner Raymond Bearer’s appeal, filed by counsel Roger Curry, arises from the
Circuit Court of Taylor County, which sentenced petitioner to one to five years in prison for his
third offense domestic battery. This order was entered on January 31, 2012. The State, by its
attorney Benjamin F. Yancey III, has filed a response in support of the circuit court’s order.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        In March and May of 2007, petitioner committed two separate instances of domestic
battery. Subsequently, petitioner was convicted of these charges in July and August of 2007. His
conviction in July of 2007 concerned the May incident of domestic battery, and his conviction in
August of 2007 concerned the March incident of domestic battery. The first time petitioner was
sentenced for domestic battery, the circuit court sentenced petitioner to sixty days in jail but
suspended this sentence in lieu of probation. The second time petitioner was sentenced for
domestic battery, the circuit court sentenced petitioner to spend forty-eight hours in jail. In
January of 2011, petitioner committed another act of domestic battery and was consequently
charged and indicted under West Virginia Code § 61-2-28(d)(2010 Repl. Vol.). Petitioner
entered a conditional guilty plea in December of 2011, admitting guilt to the instant domestic
battery but reserving the right to appeal the issue of whether he is subject to the sentence of one
to five years in prison for third offense domestic battery. Following this plea, the circuit court
sentenced petitioner to one to five years in prison after petitioner expressed that he would be
unwilling to participate in a community corrections program rather than going to prison.
Petitioner appeals this decision.

       Petitioner argues that the statute under which he was sentenced, West Virginia Code §
61-2-28(d), is not unlike the general recidivist statute, West Virginia Code § 61-11-18.
Specifically, petitioner argues that under the general recidivist statute, case law directs that each
offense counted toward recidivism must have occurred subsequent to each prior conviction used


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in determining recidivism. See Syl. Pt. 8, State v. Pratt, 161 W.Va. 530, 244 S.E.2d 227 (1978).
Petitioner argues that, therefore, the instant domestic battery charge should be considered his
second, not his third, because he was not convicted for the first incident of domestic battery until
after he was convicted for the second incident of domestic battery. He argues that he should have
been sentenced for second offense domestic battery under W.Va. Code § 61-2-28(c).

        In response, the State contends that the circuit court did not err in finding petitioner guilty
of third offense domestic battery. The State argues that statutory language and case law
concerning the recidivist statute do not apply to determine third offense domestic battery. The
State points out that, in its order dismissing petitioner’s argument, the circuit court found that
West Virginia Code § 61-2-28(d) requires three convictions of domestic battery, domestic
assault, malicious assault, or unlawful restraint in any combination within ten years, and does not
require that any of the three convictions resolve in sequence.

       In reviewing challenges to the findings and conclusions of the circuit court, we
       apply a two-prong deferential standard of review. We review the final order and
       the ultimate disposition under an abuse of discretion standard, and we review the
       circuit court’s underlying factual findings under a clearly erroneous standard.
       Questions of law are subject to a de novo review.

Syl. Pt. 2, Walker v. W.Va. Ethics Comm’n, 201 W.Va. 108, 492 S.E.2d 167 (1997).

        Upon our review, the Court finds no error in the circuit court’s decision to reject
petitioner’s argument that his third offense domestic battery should have been considered his
second offense domestic battery. The language of West Virginia Code § 61-2-28(d) is clear and
it is undisputed that petitioner was previously convicted on two domestic battery charges prior to
the instant domestic battery charge.

       For the foregoing reasons, we affirm.


                                                                                            Affirmed.

ISSUED: May 24, 2013

CONCURRED IN BY:

Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis



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