State of West Virginia v. Evans
Annotate this CaseSeptember 1998 Term
__________
No. 25000
__________
STATE OF WEST VIRGINIA,
Appellee
v.
ROBERT VAUGHN EVANS,
Appellant
__________________________________________________________________
Appeal from the Circuit Court of Harrison County
Honorable Thomas A. Bedell, Judge
Civil Action No. 95-F-18-2
AFFIRMED
__________________________________________________________________
Submitted: September 15, 1998
Filed: September 30, 1998
Darrell V. McGraw,
Jr. Thomas
G. Dyer
Attorney
General Clarksburg,
West Virginia
Victors S.
Woods Attorney
for Appellant
Assistant Attorney General
Charleston, West Virginia
Attorneys for Appellee
AND
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No. 25209
__________
STATE OF WEST VIRGINIA,
Appellee
v.
JAMES B. LEWIS,
Appellant
__________________________________________________________________
Appeal from the Circuit Court of Tucker County
Honorable Andrew N. Frye, Jr., Judge
Civil Action No. 94-F-25
AFFIRMED
__________________________________________________________________
Submitted: September 15, 1998
Filed: September 30, 1998
Darrell V. McGraw,
Jr. Dorwin
J. Wolfe, Esq.
Attorney
General Elkins,
West Virginia
Allen H.
Loughry Attorney
for Appellant
Assistant Attorney General
Charleston, West Virginia
Attorneys for Appellee
JUSTICE WORKMAN delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. Pursuant to
the clear language of Rule 1101(b)(3) of the West Virginia Rules of Evidence, the
provisions of this state's rules of evidence are not applicable during criminal
proceedings that involve probation revocation.
2. "Where
an indictment properly charges a conviction of a first offense as a basis for a
superimposed penalty for a second offense therein charged, the record of the first
conviction and sentence thereunder, as charged, is sufficient, without respect to
defendant's plea in the first conviction, whether guilty, not guilty, or nolo
contendere." Syl. Pt. 2, State v. Moss, 108 W. Va. 692, 152 S.E. 749 (1930).
3. A conviction derived from a plea of nolo contendere may be used for purposes of this state's recidivist sentencing laws.
Workman, Justice:
These cases have been consolidated to
resolve the issue of whether the West Virginia Rules of Evidence or Criminal Procedure
preclude the use of a conviction based upon a plea of nolo contendere for purposes of
probation revocation and/or sentence enhancement under this state's recidivism laws. Upon
examining the respective rules, applicable law, and commentary on these issues, we
conclude that convictions predicated on pleas of nolo contendere can be used both to
revoke probation and to enhance sentencing.
State v. Lewis
Appellant James B. Lewis
("Lewis") pled guilty to daytime burglary and second offense DUI in December
1994 and was subsequently placed on five years probation. On August 17, 1997, while still
on probation, he was arrested and charged with domestic battery. Lewis pled no contest to
the charge and was sentenced to ten days in jail. The State moved to revoke Lewis'
probation and following a hearing, the circuit court revoked Lewis' probation. This Court
granted Lewis' petition for appeal "solely on the issue regarding Rule 410 of the
West Virginia Rules of Evidence."
Rule 410 states, in relevant part:
"Except as otherwise provided in this rule, evidence of the following is not, in any
civil or criminal proceeding, admissible against the defendant who made the plea or was a
participant in the plea discussions: . . . (2) a plea of nolo contendere[.] Lewis argues
that the trial court's sole basis for revoking his probationary status was the nolo plea.See footnote 1 1 Given the proscriptive
language of Rule 410 regarding the evidentiary use of nolo pleas, Lewis contends that the
trial court erred in relying on his domestic battery conviction to revoke his probation
since that conviction was obtained through a nolo plea.
As the State points out, Lewis' argument fails completely based on the language of Rule 1101(b)(3) of the West Virginia Rules of Evidence. That rule, which deals with the applicability of the rules of evidence in general states that, "[u]nless otherwise provided by rules of the Supreme Court of Appeals, these rules other than those with respect to privileges do not apply in the following situations: . . . (3) Miscellaneous proceedings.--
Sentencing; granting or revoking probation. . . ." W. Va. R. Evid. 1101(b)(3)
(emphasis supplied). Rule 1101(b)(3) unmistakably exempts probation revocation proceedings
from compliance with the West Virginia Rules of Evidence. The inapplicability of
evidentiary rules at probation revocation proceedings is well-established. See United
States v. McCallum, 677 F.2d 1024, 1026 (4th Cir.), cert. denied, 459 U.S. 1010 (1982)
(holding that federal rules of evidence concerning hearsay do not apply to probation
revocation hearings); United States v. Smith, 571 F.2d 370, 373 (7th Cir. 1978) (observing
that rule 1101(d) indicates that federal rules of evidence do not apply to hearings
involving probation revocation); accord United States v. Verbeke, 853 F.2d 537, 539 (7th
Cir. 1988); Howell v. State, No. CA CR 91-237, 1992 WL 146638 at *3 (Ark. Ct. App. 1992)
(finding no error in trial court's ruling that Arkansas Rules of Evidence do not apply to
probation revocation hearings); State v. Ozmun, 378 N.W.2d 170, 172 (Neb. 1985) (stating
that Nebraska's corollary to West Virginia Rule of Evidence 1101(b)(3) provides that
Nebraska Evidence Rules "do not apply to proceedings for the granting or revoking of
probation").
We agree with the State's position that
pursuant to the clear language of Rule 1101(b)(3), the provisions of this state's rules of
evidence are not applicable during criminal proceedings that involve probation revocation.
Thus, Rule 410, as well as the other evidentiary rules, do not apply to a probation
revocation proceeding. Accordingly, we affirm the decision of the Circuit Court of Tucker
County.See footnote 2 2
State v. Evans
Appellant Robert Vaughn Evans
("Evans") was found guilty of burglary and petit larceny on August 5, 1996.
Based on his five prior felony convictions,See
footnote 3 3 the State filed a recidivist information against Evans under
West Virginia Code § § 61-11-18See
footnote 4 4 and -19See footnote 5 5 (1997). Following a trial on the recidivist charges wherein the jury
concluded that Evans was the same individual who had been convicted for each of the five
prior felonies, the trial court held a hearing on October 21, 1996, to sentence Evans on
the recidivist charges. At this hearing, the trial court heard evidence regarding the
circumstances surrounding Evans' burglary and other prior felony convictions and sentenced
Evans to life in prison with the possibility of parole.
On appeal, Evans argues that the trial
court committed error during the recidivist sentencing proceeding by considering his
conviction for escape and resisting an officer with violence.See footnote 6 6 He contends that his plea of nolo
contendere to that charge precludes consideration of that conviction during the recidivist
proceeding based on Rule 11(e)(6)(B) of the West Virginia Rules of Criminal Procedure.
That rule provides that: "Inadmissibility of pleas, plea discussions, and related
statements.--Except as otherwise provided in this paragraphSee footnote 7 7 evidence of the following is not, in any
civil or criminal proceeding, admissible against the defendant who made the plea or was a
participant in the plea discussions: . . . (B) A plea of nolo contendere[.]" W. Va.
R. Crim. P. 11(e)(6)(B) (footnote added). Through this appeal, Evans seeks a new
sentencing hearing wherein the trial court would be precluded from considering his plea
and conviction to the escape and resisting with violence charge.
In support of its position that the
trial court did not err in considering Evan's convictions for escape and resisting an
officer at his recidivist sentencing hearing, the State argues that because a conviction
is the triggering event for enhanced sentencing under West Virginia Code § 61-11-18,
the nature of the plea which precedes the conviction is immaterial. The language of the
recidivist statute makes clear that enhanced sentencing is mandated based on prior
"convict[ion] of an offense punishable by confinement in the penitentiary." W.
Va. Code § 61-11-18(c) (emphasis supplied). Through its selection of the term
"conviction," the State contends that the Legislature resolved that the plea or
proof of facts underlying the conviction are not relevant for purposes of sentence
enhancement. See W. Va. Code § § 61-11-18, -19.
Long before this state adopted rules of
evidence, convictions, rather than pleas, were recognized by this Court in syllabus point
two of State v. Moss, 108 W. Va. 692, 152 S.E. 749 (1930), as the critical factor for
sentence enhancement:
Where an
indictment properly charges a conviction of a first offense as a basis for a superimposed
penalty for a second offense therein charged, the record of the first conviction and
sentence thereunder, as charged, is sufficient, without respect to defendant's plea in the
first conviction, whether guilty, not guilty, or nolo
contendere.
The Court clarified further in Moss that "[t]he conviction makes the offense, and
it is immaterial whether the plea was guilty, not guilty or nolo contendere . . . [;] [i]t
is the conviction which controls, not the plea interposed." Id. at 696, 152 S.E. at
750-51; accord Lott v. U.S., 367 U.S. 421, 426 (1961) (holding that "it was the
judgment of conviction and sentence, not the tender and acceptance of the pleas of nolo
contendere, that constituted the 'determination of guilt'").
Recently, this Court commented in University of West Virginia Board of Trustees ex rel. West Virginia University v. Fox, 197 W. Va. 91, 475 S.E.2d 91 (1996), that "where the issue is whether or not a person has been previously 'convicted,' a judgment of conviction based upon a nolo contendere plea may indeed be admitted into evidence to litigate that issue." The Court further opined in Fox that "[s]uch [use] might be applicable where a statute attached an enhanced criminal penalty for successive offenses. . . ." Id. At 96. This view is consonant with the majority position of federal and state court decisions to permit convictions based on nolo pleas to be used for recidivistic sentencing purposes. See State v. Marquez, 731 P.2d 965, 968 (N.M. Ct. App. 1986), cert. denied, 730 P.2d 1193 (1987) (holding that "a prior conviction resulting from a nolo contendere plea can be used to enhance a sentence under the habitual criminal statute" and observing that this is "the rule followed by the clear majority of other jurisdictions"); accord Pryor v. State, 861 S.W.2d 544, 547 (Ark. 1993); People v. Windsor, 876 P.2d 55, 58 (Colo. App. 1993); James v. State, 433 S.E.2d 700, 701 (Ga. Ct. App. 1993); State v. Shaffer, 788 P.2d 1341, 1343 (Kan. Ct. App. 1990); State v. Ondrak, 326 N.W.2d 188, 190 (Neb. 1982); People v. Goodwin, 593
P.2d 326, 328 (Colo. 1979).See footnote 8 8
Frequently cited as support for using convictions resulting from nolo pleas for
enhanced sentencing is the advisory committee note to the 1975 amendment to Rule 11 of the
Federal Rules of Criminal Procedure, wherein the committee observes that "[a] plea of
nolo contendere is, for purposes of punishment, the same as a plea of guilty," and,
therefore, "[a] judgment upon [such] plea is a conviction and may be used to apply
multiple offender statutes." reprinted in 62 F.R.D. 277-78 (1974); see State v.
Teague, 680 S.W.2d 785, 789 (Tenn. 1984), cert. denied, 473 U.S. 911 (1985) (citing
advisory committee note to federal criminal procedure rule 11).
The commentators are in agreement that
convictions based on nolo pleas can be used for sentence enhancement without violating the
rules of evidence or criminal procedure. See 1 Franklin D. Cleckley, Handbook on West
Virginia Criminal Procedure at I-788 (2nd ed. Supp. 1998) (observing that Rule 410 of the
West Virginia Rules of Evidence is not violated by use of convictions predicated on nolo
pleas); 2 Wayne R. LaFave and Jerold H. Israel, Criminal Procedure § 20.4(a) at
801-02 (1985) (observing that "[j]udgment following entry of a nolo contendere plea
is a conviction, and may be admitted as such in other proceedings where the fact of
conviction has legal significance (e.g. to apply multiple offender penalty provisions. . .
."); 1 Charles A. Wright, Federal Practice and Procedure: Criminal Procedure
§ 177 at 666-67 (2nd ed. 1982) (stating that "a conviction on a plea on nolo
contendere is a conviction for purposes of statutes that provide more severe penalties for
second offenders").
Upon analysis then, what is prohibited
by the rules of evidence and criminal rules of procedure is use of the fact of the plea of
nolo contendere in subsequent civil or criminal proceedings to prove that the defendant
committed the offense to which he entered the plea. See Israel, supra, at 801. The rules,
however, do not proscribe the use of a conviction premised on such a nolo plea. The
distinction between the prohibited use of the plea versus the permissible use of the
conviction is critical. As recognized by the Fifth Circuit in United States v. Williams,
642 F.2d 136 (5th Cir. 1981), "[o]nce convicted, whether as a result of a plea of
guilty, nolo contendere, or . . . [trial], convictions stand on the same footing. . .
." Id. At 139. Accordingly, we hold that a conviction derived from a plea of nolo
contendere may be used for purposes of this state's recidivist sentencing laws.
Contrary to the position taken by Evans
that the imposition of a life sentence is disproportionate to the crimes he committed, we
determine upon review that the trial court carefully considered the cumulative nature of
his multiple convictions in conjunction with the factors enumerated by this Court in
syllabus point five of Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205
(1981). We expressly reject Evans' contention that burglary does not constitute a crime of
violence. See Martin v. Leverette, 161 W. Va. 547, 555, 244 S.E.2d 39, 43-44 (1978)
(stating that burglary is a "serious [crime] and involve[s] the threat of violence
against persons"). Determining that the trial court did not abuse its discretion in
imposing a life sentence upon Evans, we affirm the decision of the Circuit Court of
Harrison County.
Based on the foregoing, the decisions
of the Circuit Courts of Tucker and Harrison County are both hereby affirmed.
Affirmed.
Footnote: 1 1 In response to Lewis' contention that the trial court relied solely on his nolo plea to revoke probation, the State argues that the circuit court considered the additional probation violations of failing to find gainful employment and failing to notify his probation officer of a change of residence. While the order revoking Lewis' probation does not specify the basis for the revocation, the transcript from the probation revocation hearing indicates that the trial judge did inquire into Lewis' employment status and history while on probation. We need not make further inquiry into whether the trial court's decision to revoke Lewis' probation was prompted by multiple bases, however, as the answer to such query is not determinative of the ultimate issue concerning whether the rules of evidence permit convictions predicated on nolo pleas to be used for probation revocation purposes.
Footnote: 2 2 We observe that the inapplicability of the rules of evidence to probation revocation proceedings does not mean that there are no constitutional limitations that may apply to evidence used in such proceedings.
Footnote: 3 3 Evans was previously convicted of (1) kidnaping in 1987; (2) receiving stolen property in 1988; (3) uttering in 1989; (4) grand theft auto in 1990; and (5) felony escape and resisting an officer with violence in Florida in 1990.
Footnote: 4 4 West Virginia Code § 61-11-18(c), provides that "[w]hen it is determined, as provided in section nineteen hereof [61-11-19], 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 penitentiary for life."
Footnote: 5 5 West Virginia Code § 61-11-19 sets forth the procedures required of prosecutors and the courts when a person has been previously convicted of an offense punishable by confinement in the penitentiary.
Footnote: 6 6 Although escape and resisting an officer with violence are actually two separate offenses under Florida law, Evans refers to his convictions for those offenses in terms of a singular conviction.
Footnote: 7 7 The rules do provide for the admission of plea related statements where part of a defendant's statement has been introduced and fairness concerns require introduction of additional statements made during the plea proceeding, as well as, in criminal proceedings for false swearing under certain specified circumstances. See, e.g., W. Va. R. Crim. P. 11(e)(6)(D)(i), (ii).
Footnote: 8 8 Only North Carolina and Alabama prohibit the use of convictions predicated on nolo pleas for sentence enhancement purposes. See McNair v. State, 653 So. 2d 320, 328 (Ala. Crim. App. 1992) (observing that this is the minority rule); State v. Stone, 95 S.E.2d 77, 80 (N.C. 1956).
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