                             STATE OF WEST VIRGINIA 

                           SUPREME COURT OF APPEALS


Danny Hundley,
Petitioner Below, Petitioner                                                        FILED
                                                                                  April 5, 2018
vs) No. 16-1111 (Greenbrier County 10-C-94)                                        released at 3:00 p.m.
                                                                               EDYTHE NASH GAISER, CLERK
                                                                               SUPREME COURT OF APPEALS
Patrick Mirandy, Warden,                                                            OF WEST VIRGINIA
Saint Mary’s Correctional Center,
Respondent Below, Respondent


                               MEMORANDUM DECISION

        Petitioner Danny Hundley, by counsel Eric M. Francis, appeals the Circuit Court of
Greenbrier County’s November 3, 2016, order denying his amended petition for writ of habeas
corpus. Respondent Patrick Mirandy, Warden, by counsel Gordon L. Mowen, II and Mary M.
Downey, filed a response.1 Petitioner filed a reply. On appeal, petitioner argues that the circuit
court erred in denying his amended habeas petition on the grounds of ineffective assistance of trial
counsel, disproportionate sentence, and cumulative error.

        This Court has considered the parties’ briefs, oral arguments, and the appendix record on
appeal. Under the limited circumstances presented in this case, we find a memorandum decision
affirming in part and reversing and remanding in part for further proceedings appropriate under
Rule 21 of the West Virginia Rules of Appellate Procedure. As explained below, the Court finds
that the circuit court committed no reversible error as pertains to petitioner’s claim of ineffective
assistance of counsel and therefore affirm that ruling. However, we find that the imposition of a
recidivist life sentence violates the proportionality requirements of Article III, Section 5 of the
West Virginia Constitution and therefore reverse the recidivist sentence and remand for
resentencing in accordance with this decision.

         In May of 2006, petitioner was arrested following his confession to police that he took an
all-terrain vehicle (“ATV”) from Jimmy Legg’s residence without permission. Petitioner was later
indicted on one count of burglary and one count of grand larceny. Prior to trial, the State offered
to dismiss both charges if petitioner would plead guilty to one count of conspiracy to commit
burglary. The State further agreed to not seek a recidivist sentence enhancement. Petitioner
rejected this proposed plea agreement and instead chose to proceed to trial in January of 2007.


       1
        Petitioner originally listed Marvin Plumley as respondent in this matter because, at the
time, petitioner was housed at Huttonsville Correctional Center and Mr. Plumley served as the
warden of that facility. However, petitioner has subsequently been transferred to Saint Mary’s
Correctional Center. Accordingly, pursuant to Rule 41(c) of the Rules of Appellate Procedure, the
appropriate public officer has been substituted in the style of this matter.
                                                 1

       The day before trial began, the State filed a notice of intent to seek a recidivist penalty and
informed petitioner that, if convicted, the State would seek a life sentence pursuant to West
Virginia Code § 61-11-18(c) (2000). Ultimately, the jury found petitioner guilty of both counts.
The State then filed its recidivist information that alleged petitioner was previously convicted of
multiple felonies.

        In March of 2007, the circuit court proceeded to trial on the recidivist information, after
which a jury found that petitioner was the same individual that was previously convicted of each
of the felony offenses identified in the information. That same month, the circuit court sentenced
petitioner to a term of life imprisonment as a habitual offender under West Virginia Code § 61-11-
18(c). Petitioner appealed his conviction, and this Court refused the same by order entered in
January of 2008.

        In May of 2010, petitioner filed his initial petition for writ of habeas corpus, after which
the circuit court ordered that he undergo a psychological evaluation to determine his competency
and criminal responsibility at the time of the acts with which he was charged. In June of 2013, the
circuit court received the evaluation, which concluded that, despite functioning at a borderline
intellectual range, petitioner was competent to stand trial and, at the time of the crime, capable of
appreciating the wrongfulness of his acts and conforming his acts to the requirements of the law.

        In September of 2014, the circuit court held two omnibus evidentiary hearings regarding
petitioner’s claims. Thereafter, in December of 2014, Petitioner filed a Losh checklist and amended
petition for writ of habeas corpus.2 In his amended petition, petitioner set forth only the following
grounds for relief: (1) ineffective assistance of counsel and (2) disproportionate sentence. In
January of 2015, petitioner filed a supplemental memorandum in support of his amended petition
that bolstered his factual support and argument for the grounds raised in the amended petition.
Thereafter, by order entered on November 3, 2016, the circuit court denied petitioner’s amended
petition for writ of habeas corpus. It is from this order that petitioner appeals.

       This Court reviews appeals of circuit court orders denying habeas corpus relief under the
following standard:

                “In reviewing challenges to the findings and conclusions of the circuit court
        in a habeas corpus action, we apply a three-prong standard of review. We review
        the final order and the ultimate disposition under an abuse of discretion standard;
        the underlying factual findings under a clearly erroneous standard; and questions
        of law are subject to a de novo review.” Syllabus point 1, Mathena v. Haines, 219
        W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009). On appeal,
petitioner raises three assignments of error: 1) that the circuit court erred in failing to find
ineffective assistance of counsel; 2) that the circuit court erred in failing to find his recidivist life
sentence disproportionate; and 3) cumulative error. We shall address each in turn.



        2
            Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981).
                                                   2

I.     Ineffective Assistance of Counsel

         Petitioner first alleges that the circuit court erred in denying him habeas relief based upon
ineffective assistance of counsel.3 In his amended petition for writ of habeas corpus in the circuit
court, petitioner asserted the following grounds for relief under his claim of ineffective assistance
of counsel: 1) failing to communicate with petitioner “in a certain manner” based on his intellectual
functioning; 2) failing to adequately meet with petitioner in preparation for his defense; and 3)
permitting petitioner to testify at trial.4 Before this Court, however, the complexion of petitioner’s
argument regarding trial counsel’s ineffectiveness changes substantially. Petitioner argues that
trial counsel was ineffective for failing to adduce evidence of his limited intellectual functioning
at trial for the purpose of advancing a diminished capacity defense.5


       3
          With respect to petitioner’s first assignment of error—ineffective assistance of counsel—
we note at the outset that the arguments made in support of this allegation vacillate dramatically
as between petitioner’s initial petition for habeas corpus relief, his amended petition, and his
petition for appeal. Although petitioner failed to properly preserve and/or develop certain of his
arguments in support of these allegations, unless otherwise indicated, we find the record adequate
to dispense with certain of them regardless.
       4
         Although not developed below in the amended petition or before this Court, petitioner’s
original petition also asserts that trial counsel was ineffective for discouraging petitioner from
accepting one of the two plea offers received from the State. Out of an abundance of caution, the
circuit court nevertheless addressed the allegation despite it apparently being abandoned in the
amended petition. The circuit court found that, contrary to petitioner’s belated assertion, the
evidence adduced during the habeas proceeding made it “painfully obvious” that trial counsel
encouraged petitioner to consider the plea offer and explained the offer and rejection repercussions
to him. Although not properly presented to the Court on appeal, we agree with the circuit court’s
analysis of this issue based upon the record before us.
       5
           For the first time, in his petition for appeal, petitioner argues that trial counsel was
likewise ineffective for failing to attack the predicate offenses upon which the recidivist
enhancement was based. In particular, he argues that counsel was ineffective for failing to argue
that burglary is not a crime of violence. Petitioner likewise suggests—without attributing this
assertion to any ineffectiveness of trial counsel—that the recidivist record is incomplete based on
his counsel’s inability to locate the certified records of his prior offenses introduced into evidence
during the recidivist trial. Neither of these issues were addressed by the circuit court inasmuch as
petitioner plainly failed to raise these arguments in his amended petition. “This Court’s general
rule is that nonjurisdictional questions not raised at the circuit court level will not be considered to
the first time on appeal.” State v. Jessie, 225 W.Va. 21, 27, 689 S.E.2d 21, 27 (2009) (citing
Whitlow v. Bd. of Educ. of Kanawha Cty., 190 W.Va. 223, 226, 438 S.E.2d 15, 18 (1993)).

        Nevertheless, we observe that petitioner’s assertion that trial counsel was ineffective for
failing to argue that burglary is a not a crime of violence is not well-taken inasmuch as this Court
has plainly indicated to the contrary: “[B]urglary and grand larceny [are] crimes that by their very
nature involve[] the threat of harm or violence to innocent persons.” State v. Housden, 184 W.
Va. 171, 175, 399 S.E.2d 882, 886 (1990). Moreover, the fact that this Court ultimately hereinafter
                                                   3

        We have held that

               [i]n the West Virginia courts, claims of ineffective assistance of counsel are
        to be governed by the two-pronged test established in Strickland v. Washington,
        466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel’s performance
        was deficient under an objective standard of reasonableness; and (2) there is a
        reasonable probability that, but for counsel’s unprofessional errors, the result of the
        proceedings would have been different.

Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). A claim may be disposed of for
failure to meet either prong of the test. Syl. Pt. 5, in part, State ex rel. Daniel v. Legursky, 195
W.Va. 314, 465 S.E.2d 416 (1995). “Failure to meet the burden of proof imposed by either part of
the Strickland/Miller test is fatal to a habeas petitioner’s claim.” State ex rel. Vernatter v. Warden,
W.Va. Penitentiary, 207 W.Va. 11, 17, 528 S.E.2d 207, 213 (1999).

        With respect to petitioner’s assertions of ineffective assistance of counsel based upon his
intellectual functioning, we address those collectively. Petitioner asserts that his borderline
intelligence required trial counsel to “explain the procedure to him in a certain manner” and that
trial counsel should have “further investigated” and/or adduced this evidence at trial for the
purpose of asserting a diminished capacity defense. Insofar as trial counsel’s manner of explaining
the process to petitioner, the circuit court found that petitioner failed to establish that trial counsel’s
“performance in communicating with the [p]etitioner was deficient[.]” The circuit court noted that
during the habeas evidentiary hearing, petitioner was presented with various materials which he
understood in substance and had the opportunity to request further explanation for any words
which he may not have understood. We agree with the circuit court that petitioner has failed to
demonstrate any sort of deficiency in trial counsel’s manner of communicating and explaining the
process to him.

        Insofar as petitioner’s contention that trial counsel was under an obligation to “further
investigate” his borderline intelligence for the purpose of claiming diminished capacity, petitioner
has likewise failed to demonstrate either an objective deficiency or reasonable probability of a
different outcome. A psychological evaluation demonstrated that petitioner was competent to
stand trial, had an “adequate factual and rational appreciation of the proceedings,” and the capacity
to assist his attorney in his defense. Moreover, this evaluation revealed that petitioner was
criminally responsible for his offenses and that “[h]is mental disorders would not have prevented
him from appreciating the wrongfulness of his acts” or “conforming his acts to the requirements
of law.” Trial counsel testified that petitioner was “reasonably articulate, understood the process,
[and] understood the notion of criminal responsibility[.]”

       Moreover, petitioner’s contention that trial counsel foreclosed an opportunity to investigate
or advance a “diminished capacity” defense is undermined by the cases he cites in support. In

concludes that petitioner’s offenses are in fact disproportionate to his recidivist life sentence is not
an implicit endorsement of this assertion of ineffectiveness. Rather, our conclusion is based
strictly upon a proportionality assessment that is peculiarly within the province of the Court. With
respect to the availability of the trial exhibits, see n.9, infra.

                                                    4

Wickline v. House, 188 W.Va. 344, 424 S.E.2d 579 (1982), the Court found ineffective assistance
of counsel where trial counsel failed to investigate Wickline’s possible diminished capacity.
However, Wickline was not merely of borderline intellectual function, but also had “longstanding
neurological problems.” Id. at 348, 424 S.E.2d at 583. More importantly, however, Wickline
offered expert testimony that “had [she] been evaluated for diminished capacity, there was a
reasonable probability that he would have found that [she] did not knowingly waive her Miranda
rights prior to [her] confession[,]” which confession was the centerpiece of the prosecution’s case.
Id. Moreover, in State v. Joseph, we explained that a diminished capacity defense is available to
introduce expert testimony “regarding a mental disease or defect that rendered the defendant
incapable, at the time the crime was committed, of forming a mental state that is an element of the
crime charged.” Syl. Pt. 3, in part, 214 W. Va. 525, 526-27, 590 S.E.2d 718, 719-20 (2003). As
indicated above, petitioner was found both competent and criminally responsible for his offenses.

        We therefore conclude that petitioner has failed to establish that his trial counsel was
ineffective. Accordingly, we find no error in the circuit court’s refusal of habeas relief on this
basis.6


       6
           Imbedded within petitioner’s amended petition and petition for appeal is a paragraph
raising the spectre of insufficiency of the indictment. Although neither developed on a stand-alone
constitutional basis nor expressly tied to allegations of ineffective assistance, petitioner cursorily
suggests that the burglary indictment was insufficient. However, in support of this argument,
petitioner fails to allege how the indictment at issue was defective. In fact, petitioner does not cite
to the indictment or its language at all. Instead, petitioner makes general assertions regarding his
mistaken belief that he was permitted to borrow the ATV in question and how such belief
established that he lacked the intent to commit burglary. It is clear that petitioner cannot establish
that the results of the proceedings would have been different had trial counsel pursued relief based
on the sufficiency of the indictment. “Generally, the sufficiency of an indictment is reviewed de
novo. An indictment need only meet minimal constitutional standards, and the sufficiency of an
indictment is determined by practical rather than technical considerations.” Syl. Pt. 2, State v.
Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996). The indictment in question plainly tracked the
language of the burglary statute, as found at West Virginia Code § 61-3-11(a) (1993). Specifically,
the indictment set forth, in part, that petitioner “feloniously and burglariously did enter [the
victim’s home] without breaking, in the nighttime, with intent to commit a crime therein” and,
thereafter, did commit a crime therein. Accordingly, to whatever extent this assertion was raised,
it is clear that it lends petitioner no relief.

        Finally, we note that petitioner advanced two additional arguments in his amended petition,
which were addressed by the circuit court, but not argued on appeal: that trial counsel was
ineffective for adequately meeting with him to prepare for his defense and by allowing him to
testify. “Although we liberally construe briefs in determining issues presented for review, issues
which are not raised, and those mentioned only in passing but are not supported with pertinent
authority, are not considered on appeal.” State v. LaRock, 196 W.Va. 294, 302, 470 S.E.2d 613,
621 (1996). Nevertheless, it is clear that these contentions are neither factually nor legally
supportable. Trial counsel testified that his billing records revealed five meetings with petitioner,
as well as multiple meetings incident to his court appearances. Further, the record plainly reveals
that the trial court warned petitioner and his counsel of the dangers of testifying and engaged in an
                                                  5

II.    Disproportionate Sentence

        Petitioner next asserts that his sentence was unconstitutionally disproportionate because he
received a life sentence predicated, in part, upon “traffic offenses,” posing no threat of violence.
He further makes specific challenges to the use of the underlying felony driving under the influence
(“DUI”) offenses to support the recidivist sentence. While we staunchly disagree with petitioner’s
characterization of the predicate DUI charges as mere “traffic offenses” and further find no merit
to his challenges to the use of these offenses as predicates to a recidivist enhancement, we agree
that under the limited circumstances of this case, the use of a life sentence recidivist enhancement
violates the proportionality principles of the West Virginia Constitution, Article III, Section 5.

        West Virginia Code § 61-11-18(c) provides that “[w]hen 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.” In this case, the habeas court determined
that evidence of petitioner’s 2000 3rd offense felony DUI, 2003 3rd offense felony DUI, and 2007
burglary and grand larceny convictions, properly formed the basis of petitioner’s recidivist
conviction.7

        We address first petitioner’s specific challenges to the sufficiency of the two DUI
convictions for use in the recidivist proceeding. Before the circuit court, petitioner argued that as
to the DUI convictions, they are insufficient to form the basis of the enhancement due to the age
of the misdemeanor conviction underlying the 3rd offense DUI and its use as predicate for both 3rd
offense DUIs. Petitioner argues that the misdemeanor offense DUI upon which the 3rd offense
convictions were based is greater than ten years old, having occurred in 1986. He cites West
Virginia Code § 17C-5-2(n)(1) (2016), which provides that to support a subsequent DUI offense,
the prior conviction must have occurred “within the ten-year period immediately preceding the
date of arrest in the current proceeding.” However, this provision was enacted after petitioner’s
2000 and 2003 DUI convictions were final. 8 Accordingly, it is inapplicable to those convictions.9


exchange with petitioner clearly expressing petitioner’s desire to testify in his own defense.
Accordingly, we find that the circuit court likewise correctly dispensed with these arguments.
       7
         Although evidence of a 2000 forgery was likewise introduced in the recidivist proceeding,
the circuit court determined that due to the date of the commission of the forgery, it was not proper
for consideration for recidivist enhancement. See State v. McMannis, 161 W. Va. 437, 441, 242
S.E.2d 571, 575 (1978) (holding that predicate recidivist offenses must occur in succession
following conviction and sentence on preceding offense).

       At the time of its original enactment, this provision was located at West Virginia Code §
       8

17C-5-2(l)(1).
       9
         Petitioner’s argument that he is unable to challenge the validity of his convictions for DUI
because the records of those convictions are not in the circuit court’s file or any appendices of
these proceedings is not properly before this Court. Petitioner admits that this argument was not
                                                  6

        Petitioner next argues that, since the misdemeanor DUI was used as a predicate for both
the 2000 and 2003 subsequent DUI convictions, those convictions were “not truly separate and
distinct” for purposes of the recidivist statute. However, the use of the same misdemeanor
conviction to form the basis of the 2000 and, in part, the 2003 DUI convictions is immaterial to
the use of those felony convictions under the recidivist statute. West Virginia Code § 61-11-18
requires simply that a person have been “twice before convicted . . . of a crime punishable by
confinement in a penitentiary[.]” Therefore the pertinent convictions for recidivist purposes are
the two felony 3rd offense DUIs—not the convictions which gave rise to those 3rd offense
convictions.10 Moreover, this Court has made clear that

                [d]espite the fact that a third offense DUI felony conviction pursuant
                to West Virginia Code § 17C-5-2(j) (Supp.1995) 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, West Virginia Code § 61-11-
                18 (Supp.1995).

Syl. Pt. 3, in part, State v. Williams, 196 W.Va. 639, 474 S.E.2d 569 (1996). Therefore, petitioner’s
challenges to the validity of the predicate recidivist convictions provide him no relief.

        However, as previously noted, before this Court, petitioner focuses exclusively on the
nature of the offenses, arguing that neither the DUIs nor the most recent burglary and grand larceny
are crimes of violence and therefore a life sentence enhancement is unconstitutionally
disproportionate. This Court has held: “Article III, Section 5 of the West Virginia Constitution,


presented to the circuit court by stating in his petition to this Court that, “while preparing for this
brief, [p]etitioner’s counsel looked at the recidivist trial in this matter . . . and found that . . . there
were no certified records in the [c]ourt file, nor in the appendices, that correlated to exhibits 1-5
as stated in the recidivist trial.” Accordingly, it is clear that this argument was not presented to the
circuit court and, thus, is not appropriate for appellate review. See Jessie, 225 W.Va. at 27, 689
S.E.2d at 27. Nevertheless, we note that the transcript of the recidivist trial clearly demonstrates
that certified copies of records concerning petitioner’s two prior felony DUI convictions, along
with petitioner’s forgery conviction, were marked and received into evidence during that trial.
        10
          Petitioner further asserts in his amended petition that because the underlying
misdemeanor DUI conviction was entered into without counsel, it was improperly used for
enhancement in the 2000 and 2003 3rd offense DUIs, citing State v. Hopkins, 192 W. Va. 483, 453
S.E.2d 317 (1994). Petitioner misreads Hopkins, as it stands for precisely the opposite proposition:
“[U]nder the sixth amendment to the U. S. Constitution and article III, section 14 of the West
Virginia Constitution, ‘an uncounseled misdemeanor conviction, valid under Scott [v. Illinois, 440
U.S. 367, 99 S. Ct. 1158, 59 L.Ed.2d 383 (1979)], because no prison term was imposed, is also
valid when used to enhance punishment at a subsequent conviction.’ Nichols [v. United States]
511 U.S. 738, ––––, 114 S. Ct. 1921, 1928, 128 L.Ed.2d 745, 755 (1994).” Syl. Pt. 3, Hopkins,
192 W. Va. 483, 453 S.E.2d 317, overruled on other grounds by State v. Nichols, 208 W. Va. 432,
541 S.E.2d 310 (1999).


                                                     7

which contains the cruel and unusual punishment counterpart to the Eighth Amendment of the
United States Constitution, has an express statement of the proportionality principle: ‘Penalties
shall be proportioned to the character and degree of the offence.’” Syl. Pt. 8, State v. Vance, 164
W.Va. 216, 262 S.E.2d 423 (1980). The proportionality requirement has been found expressly to
apply to recidivist proceedings: “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.” Syl. Pt. 4,
Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981).

       In that regard, we have 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 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). As indicated, petitioner
characterizes his previous felony DUI convictions as “traffic offenses.” As this Court made clear
in State ex rel. Appleby v. Recht, 213 W. Va. 503, 516, 583 S.E.2d 800, 813 (2002), “[w]e have
little trouble in finding that driving under the influence is a crime of violence supporting imposition
of a recidivist sentence.” Moreover, as previously indicated, we have plainly recognized that
“burglary and grand larceny [are] crimes that by their very nature involve[] the threat of harm or
violence to innocent persons.” Housden, 184 W. Va. at 175, 399 S.E.2d at 886.

        Nevertheless, although we have regarded petitioner’s underlying and triggering offenses
as crimes of violence in general, our guiding syllabus point requires the Court to look beyond these
generalities to the specific circumstances surrounding the crimes to ensure constitutional
proportionality. “[W]e have historically adopted a rather strict and narrow construction of our
recidivist statute[]” and “consistently viewed [it] in a restrictive fashion in order to mitigate its
harshness.” Wanstreet, 166 W. Va. at 525, 528, 276 S.E.2d at 207-08, 209.

        In that regard, our guiding syllabus point requires the Court to “determine if [the offenses]
involve actual or threatened violence to the person . . . .” Syl. Pt, 7, in part, Beck, 167 W. Va. 830,
286 S.E.2d 234 (emphasis added). In State ex rel. Boso v. Hedrick, 182 W. Va. 701, 391 S.E.2d
614 (1990), the Court found that a recidivist sentence based, in part, upon breaking and entering
and night-time burglary was disproportionate. The Court noted that breaking and entering is not
“per se a crime of violence” and that the night-time burglary was committed in an unoccupied
dwelling. Id. at 709, 391 S.E.2d at 622. The Court further noted that the record was devoid of any
indication that “any weapons were used in these crimes or that there was a threat of violence to
any person.” Id. Moreover, in State v. Davis, 189 W. Va. 59, 61, 427 S.E.2d 754, 756 (1993), the
Court similarly found a recidivist life sentence disproportionate where “[t]here [was] no suggestion
that actual violence was used or was threatened in the course of the commission of the crime.”

                                                  8

Emphasizing that the underlying crimes of receiving stolen property and breaking and entering
were “neither violent in nature or in actuality,” the Davis Court again referenced the fact that
neither of these offenses were “per se a crime of violence.” Id. at 61, 427 S.E.2d at 757.

        Finally, in State v. Miller, 184 W. Va. 462, 465, 400 S.E.2d 897, 900 (1990), the Court
found a recidivist life sentence disproportionate where, despite the presence of actual violence in
the triggering offense, the predicate offenses were either decidedly non-violent or “posed only a
threat of violence.” Noting that “the propensity for violence is an important factor to be
considered,” the Miller Court noted the absence of a “‘discernible trend of violence.’” Id. (quoting
State v. Oxier, 179 W. Va. 431, 434, 369 S.E.2d 866, 869 (1988) (J. Miller, dissenting)).

         Inasmuch as this Court has directed that “the third felony is entitled to more scrutiny than
the preceding felony convictions since it provides the ultimate nexus to the sentence,” we are
compelled to place particular emphasis on petitioner’s grand larceny and burglary offenses.
Wanstreet, 166 W. Va. at 534, 276 S.E.2d at 212. Like the cases discussed above, petitioner’s
grand larceny and burglary offenses involved no actual or even threatened violence. Petitioner
absconded with an ATV from the separately accessible basement of the Leggs’ home under cover
of night, without interacting with anyone. While the home was not unoccupied, the evidence
reveals that the Leggs’ basement lacked interior access to their home. The evidence appears
undisputed that petitioner was well-acquainted with the Leggs and regularly borrowed the ATV at
issue with permission. While providing neither a legal or factual “excuse” for petitioner’s crimes,
it is clear that these circumstances demonstrate an offense of neither actual nor threatened harm.
Accordingly, we find that under the highly particularized circumstances presented herein,
petitioner’s recidivist life sentence is unconstitutionally disproportionate.11

        For the foregoing reasons, we affirm the circuit court’s determination that petitioner is not
entitled to habeas relief for ineffective assistance of counsel. However, we find that petitioner’s
sentence was unconstitutionally disproportionate to his offenses and therefore reverse the circuit
court’s order of March 27, 2007, imposing a life sentence and remand for resentencing as to the
burglary and grand larceny charges. See State ex rel. McMannis v. Mohn, 163 W. Va. 129, 254
S.E.2d 805 (1979) (outlining options upon vacation of recidivist sentencing).

                                             Affirmed, in part, and reversed and remanded, in part.

ISSUED: April 5, 2018
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
DISSENTING:
Justice Allen H. Loughry II


       11
         Having afforded petitioner relief as to his claim of disproportionate sentencing, and
having otherwise found no error, it is unnecessary to address petitioner’s claim of cumulative error.
                                                 9

CONCURRING AND WRITING SEPARATELY:

Ketchum, J., concurring:

                I concur in the majority’s conclusion that petitioner’s recidivist life sentence was
unconstitutionally disproportionate. While I agree that petitioner’s burglary and grand larceny
convictions lacked sufficient indicia of “actual or threatened” violence, I also maintain that driving
under the influence (“DUI”) likewise lacks “actual or threatened” violence. Despite dicta
contained in our precedent suggesting otherwise, it is clear that driving under the influence is not
a categorical “crime of violence” constitutionally sufficient to justify a recidivist conviction. The
United States Supreme Court has flatly characterized DUI as “non-violent.” Solem v. Helm, 463
U.S. 277 (1983). See also Dalton v. Ashcroft, 257 F.3d 200, 208 (2d Cir. 2001) (holding that DUI
is not a crime of violence); U. S. v. Chapa-Garza, 243 F.3d 921, 927 (5th Cir. 2001) (holding that
DUI is not a conviction of a crime of violence), reh’g denied, 262 F.3d 479 (5th Cir. 2001); Bazan-
Reyes v. INS, 256 F.3d 600, 612 (7th Cir. 2001) (holding that DUI and homicide by intoxicated
use of a vehicle are not crimes of violence); U.S. v. Trinidad-Aquino, 259 F.3d 1140, 1146 (9th Cir.
2001) (same).

                As these courts have observed, “a drunk driving accident is not the result of plan,
direction, or purpose, but of recklessness at worst and misfortune at best.” U. S. v. Rutherford, 54
F.3d 370, 372 (7th Cir. 1995). Nor is “violence” the necessary precursor to serious physical harm;
serious physical harm may occur as a result of all manner of wrongful or merely negligent acts.
Simply because serious harm does or is even likely to occur, the nature of the act is not transformed
into one of “violence.” Accordingly, I respectfully concur.
 

DISSENTING AND WRITING SEPARATELY:

Loughry, J., dissenting:

                I would affirm the circuit court’s denial of habeas corpus relief to Petitioner
Hundley. The majority completely disregards our well-established precedent indicating that
burglary is, by its nature, a crime of violence. In fact, after articulating that this Court has
recognized that all of the petitioner’s predicate crimes are crimes of violence, the majority
nonetheless determines that his recidivist life sentence violates the proportionality requirements of
Article III, Section 5 of the West Virginia Constitution.

               In syllabus point seven of State v. Beck, 167 W.Va. 830, 286 S.E.2d 234 (1981),
this Court 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

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               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.

The majority correctly finds that the petitioner’s two predicate offenses, both third offense felony
DUIs, properly form the basis of a recidivist sentence. However, on the issue of whether the
petitioner’s final offense, burglary, was sufficient to merit a life sentence, the majority’s analysis
goes badly awry.

               First, the majority runs afoul of our law by acknowledging this Court’s recognition
that “burglary [is a] crime[] that by [its] very nature involve[s] the threat of harm or violence to
innocent persons,” State v. Housden, 184 W.Va. 171, 175, 399 S.E.2d 882, 886 (1990), and then
immediately contradicts itself by finding that the burglary under the specific facts of this case did
not involve actual or threatened harm. If burglary by its very nature involves actual or threatened
harm, examining the “facts” of the burglary is a transparent attempt to evade the necessary
consequence of our precedent.

                In addition, in reaching its decision that the petitioner’s night-time burglary is
insufficient to merit a recidivist life sentence, the majority relies on three cases that are wholly
inapposite to the facts of the instant case and “cherry-picks” language from the cases to justify its
outcome. The majority acknowledges that the burglary in this case was into the basement of an
occupied dwelling, Nevertheless, the majority relies on State ex rel. Boso v. Hedrick, 182 W.Va.
701, 391 S.E.2d 614 (1990), despite the fact that the night-time burglary in that case occurred in
an unoccupied dwelling. Similarly, the majority selectively relies on language from State v. Davis,
189 W.Va. 59, 427 S.E.2d 754 (1993), without acknowledging in that case that the final or
triggering felony

               was a simple breaking and entering of a building, not a dwelling,
               which resulted in the theft of approximately $10.00. There is no
               suggestion that actual violence was used or was threatened in the
               course of the commission of the crime. The business, at the time,
               was closed at night and no one was present on the premises.

Id., 189 W.Va. at 61, 427 S.E.2d at 756 (emphasis added). The final decision relied on by the
majority is State v. Miller, 184 W.Va. 462, 400 S.E.2d 897 (1990). In Miller, this Court found a
recidivist sentence disproportionate based on the predicate offenses which were forgery and
uttering, false pretenses, and breaking and entering a gas station. Significantly, none of these cases
involved the burglary of an occupied dwelling.

                 In sharp contrast to the cases relied upon by the majority, the petitioner entered the
basement of a dwelling at night while the occupants of the dwelling were asleep. Further, the
petitioner admitted that he had been drinking on the day of the crime. Obviously, these
circumstances created a significant threat of violence to the occupants of the dwelling. It is
instructive to compare the instant case with the facts in State v. Housden, wherein this Court upheld
a recidivist life sentence imposed on a habitual offender for his burglary of the victim’s home even
though the offender claimed he was aware that the victim was not at home at the time of the

                                                  11 

burglary. The Court sagely reasoned that this fact “did not render the crime one which could be
classified as nonviolent in nature.” 184 W.Va. at 174, 399 S.E.2d at 885.

                In its zeal to reach its outcome, the majority conveniently ignores the fact that this
Court has repeatedly recognized that the crime of burglary inherently involves the threat of
violence. In Martin v. Leverette, 161 W.Va. 547 554-555, 244 S.E.2d 39, 43-44 (1978), this Court
indicated that “[b]oth crimes [burglary and armed robbery] are serious and involve the threat of
violence against persons, if not actual violence in the case of armed robbery.” Id., at 554-55, 244
S.E.2d at 43-44. Moreover, in State v. Evans, 203 W.Va. 446, 508 S.E.2d 606 (1998), this Court
“expressly reject[ed] [the appellant’s] contention that burglary does not constitute a crime of
violence.” Id., at 450, 508 S.E.2d at 610 (citing Martin v. Leverette, 161 W.Va. 547, 555, 244
S.E.2d 39, 43-44 for the proposition that burglary is a “serious [crime] and involve[s] the threat of
violence against persons”). In the case at bar, the burglary involved the threat of violence to those
who were asleep in the dwelling at the time of the burglary. Under a straightforward application
of this Court’s precedent, the petitioner’s life sentence is constitutionally proportionate to his
crimes. Accordingly, I respectfully dissent.

 




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