                                                                               FILED
                                                                          November 22, 2019
No. 18-0141, State of West Virginia v. John Henry Hoyle,                        released at 3:00 p.m.
                                                                            EDYTHE NASH GAISER, CLERK
                                                                            SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA



ARMSTEAD, J., concurring in part and dissenting in part, joined by JENKINS, J.:

              I concur with the majority’s decision insofar as it upholds Mr. Hoyle’s

conviction for second offense failure to register and the sentence imposed for second

offense failure to update. However, I dissent to the majority’s decision to reverse the circuit

court’s imposition of a recidivist life sentence.

               West Virginia Code §61-11-18 (2000) provides, in pertinent part:

              (c) 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.


              This statute is clear and unambiguous. It is a long-standing rule of statutory

interpretation that this Court is to give plain meaning to a statute, so long as the statute is

clear upon its face. “Where the language of a statute is plain and unambiguous, there is no

basis for application of rules of statutory construction; but courts must apply the statute

according to the legislative intent plainly expressed herein” Syl. Pt. 1, Dunlap v. State

Compensation Director, 149 W.Va. 266, 140 S.E.2d 448 (1965).

              However, despite the clear language of our recidivist statute, this Court, for

nearly four decades beginning with its opinion in Wanstreet v. Bordenkircher, 166 W. Va.

523, 276 S.E.2d 205 (1981), has issued a number of opinions imposing additional

                                              1
qualifications for imposition of recidivist sentences. In the present case, the majority

opinion held that “[f]or 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) a substantial impact upon the victim such

that harm results.”1 Even applying the more stringent standard imposed by the majority

here, the failure to register and provide pertinent information as required most certainly

creates a serious threat of violence.

              As this Court has previously recognized, absent complete and fully accurate

information, the Sex Offender Registry fails to serve its intended purpose. State v. Beegle,

237 W.Va. 692, 790 S.E.2d 528 (2016). As the State noted, West Virginia’s Sex Offender

Registration Act (“Act”) serves a crucial regulatory purpose—enabling society to protect

itself by monitoring the location of sex offenders. Those required to register pursuant to

the Act include those who, like the Petitioner in this case, have been convicted of some of

the most serious and violent crimes. The Act imposes registration requirements on those

who have previously been convicted of such egregious crimes as sexual assault, sexual




       1
          While the sentencing court considered the Petitioner’s 1988 convictions for
kidnapping and second degree sexual assault as a single felony conviction, the sexual
assault took place in Barbour County, West Virginia and the kidnapping offense took place
in Upshur County, West Virginia. Even if, as the sentencing court held, these two offenses
arose, “from the same transaction” and are counted as a single felony for purpose of the
recidivist statute, the Petitioner was convicted of a felony in 2009 for first offense failure
to register as a sex offender, and his 2015 conviction—second offense failure to update—
was his third felony offense. Thus, in addition to serious kidnapping and sexual assault
convictions, the Petitioner has repeatedly violated the Sexual Offender Registration
requirements.
                                              2
abuse, sexual abuse by a parent, guardian, custodian or person in a position of trust to a

child, abduction with intent to defile, filming of sexually explicit conduct of minors, and

human trafficking. These crimes involve some of the most serious and violent crimes that

are committed in our society, particularly as they relate to children.

                Of great concern is the fact that, in addition to the heinous nature of sexually-

related offenses, sexual offenders have a greater propensity to reoffend. Indeed the

majority, in upholding the enhanced sentence the Petitioner received for second offense

failure to update his registry information, acknowledges that sexual offenders “are much

more likely than any other type of offender to be rearrested for a new rape or sexual

assault.”2 The majority furthers recognized that “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.”3

                The Sex Offender Registry provides law enforcement with crucial

information regarding sex offenders who have a high likelihood of recidivism. In addition,

it acts as a deterrent for those offenders who are required to provide such information to

reoffend by limiting and perhaps reducing the opportunities they have to reoffend. Failure




       2
           See footnote 36 in the majority opinion.
       3
           Id. (Emphasis Added).
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to register or provide the required information undoubtedly increases the risk that those

who have committed violent sexual crimes in the past will engage in future violent acts.

              Because I believe the imposition of the life sentence was proper in the case

before us pursuant to a clear reading of the recidivist statute, and because the circumstances

present in this case involved a risk of threatened violence, I would affirm the life sentence.

For these reasons, I respectfully dissent as to the majority’s decision to reverse the circuit

court’s imposition of a recidivist life sentence and concur with the majority in all other

respects. I am authorized to state that Justice Jenkins joins in this separate opinion.




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