State of WV v. Wyne
Annotate this Case
January 1995 Term
_____________
No. 22346
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STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
v.
RONALD LEE WYNE,
Defendant Below, Appellant
___________________________________________________________
Appeal from the Circuit Court of Braxton County
Honorable Danny O. Cline, Judge
Criminal Action Nos. 90-F-25
and 90-F-1 Recidivism
AFFIRMED
___________________________________________________________
Submitted: May 9, 1995
Filed: July 11, 1995
Darrell V. McGraw, Jr., Esq.
Attorney General
Mary Blaine McLaughlin, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellee
James Wilson Douglas, Esq.
Sutton, West Virginia
Attorney for the Appellant
RETIRED JUSTICE MILLER, sitting by temporary assignment,
delivered the Opinion of the Court.
JUSTICE BROTHERTON and JUSTICE RECHT did not participate.
JUDGE FOX sitting by temporary assignment.
SYLLABUS BY THE COURT
1. A life recidivist penalty may be imposed under
W. Va. Code, 61-11-18 (1994), if the defendant has been convicted
of two prior felonies in addition to the third felony which
triggers the life recidivist proceeding.
2. "In applying the recidivist life penalty, the trial
court does not impose a separate sentence for the last felony
conviction, but upon the jury's conviction in the recidivist
proceeding it imposes a life sentence on the last felony
conviction. In order to establish a life recidivist conviction,
another felony must be proven beyond those for which the defendant
has been previously sentenced." Syllabus Point 1, Gibson v.
Legursky, 187 W. Va. 51, 415 S.E.2d 457 (1992).
3. Under W. Va. Code, 61-11-19 (1943) a recidivist
proceeding does not require proof of the triggering offense because
such triggering offense must be proven prior to the invocation of
the recidivist proceeding. At the recidivist proceeding, proof of
the prior felony or felonies conviction that are used to establish
the recidivist conviction must be shown. Such recidivist
conviction will then be used to enhance the penalty of the
underlying triggering conviction.
4. "'The appropriateness of a life recidivist sentence
under our constitutional proportionality provision found in Article
III, Section 5 [of the West Virginia Constitution], 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)." Syllabus
Point 2, State v. Housden, 184 W. Va. 171, 399 S.E.2d 882 (1990).
Miller, Justice:
This is an appeal of a life recidivist conviction from
the Circuit Court of Braxton County entered on April 15, 1994,
pursuant to W. Va. Code, 61-11-18(c) (1994).See footnote 1 Two errors are
alleged. The first is whether in a life recidivist trial it is
necessary for the State to prove the underlying or triggering
felony conviction that gave rise to the recidivist charge in
addition to the prior felony convictions. The second error is
whether the offenses giving rise to the life recidivist sentence
were sufficiently non-violent to violate our constitutional
proportionality principle.
In 1984, Ronald Lee Wyne, the defendant, pled guilty in
the Circuit Court of Braxton County to the crime of breaking and
entering. Additionally, in 1989, in the same court he had entered
a guilty plea to the crime of second degree arson. These two felony crimes formed the prior convictions that were set out in the
life recidivist charge. This was done after the defendant had pled
guilty in the Circuit Court of Braxton County in 1991 to the felony
of jail escape under W. Va. Code, 61-5-10 (1990).See footnote 2
The prosecutor filed an information on the two prior
convictions of breaking and entering and second degree arson and
sought imposition of a recidivist life sentence. The recidivist
issue was tried before a jury that found that the defendant was the
same individual who had been previously convicted and sentenced for
the felony of breaking and entering and second degree arson.
Subsequently, by the order of April 15, 1994, the defendant was
"sentenced to confinement in the West Virginia Penitentiary for
life upon his conviction for jail breaking."
A life recidivist penalty may be imposed under W. Va.
Code, 61-11-18 (1943), if the defendant has been convicted of two prior feloniesSee footnote 3 in addition to the third felony which triggers the
life recidivist proceeding.
II
We have discussed in syllabus point 1 of Gibson v.
Legursky, 187 W. Va. 51, 415 S.E.2d 457 (1992) how the life
recidivist penalty is imposed once the jury finds that the
defendant is the same person convicted of the underlying felonies
which establish the life recidivist conviction:
In applying the recidivist life penalty, the
trial court does not impose a separate
sentence for the last felony conviction, but
upon the jury's conviction in the recidivist
proceeding it imposes a life sentence on the
last felony conviction. In order to establish
a life recidivist conviction, another felony
must be proven beyond those for which the
defendant has been previously sentenced.
See also State ex rel. McMannis v. Mohn, 163 W. Va. 129, 140-41,
254 S.E.2d 805, 811 (1979), cert. denied, 464 U.S. 831, 104 S. Ct. 110, 78 L. Ed. 2d 112 (1983). In State ex rel. Combs v. Boles, 151
W. Va. 194, 200, 151 S.E.2d 115, 119 (1966), we made this parallel
observation "A defendant may not be sentenced for the principal
offense and then be given an additional separate sentence upon the
[recidivist] information." Thus, Gibson's syllabus dictates that
a life recidivist proceeding is designed to enhance the punishment
for the third felony which in this case was jail escape. This is consistent with other jurisdictions, as illustrated by the Indiana
Supreme Court's statements in Edwards v. State, 479 N.E.2d 541, 548
(Ind. 1985):
A sentence upon a finding of habitual
criminality is not imposed as consecutive to
the sentence imposed for the underlying felony
conviction. Such a finding is not a
conviction of a separate crime, but rather
provides for the enhancement of a sentence
imposed under conviction for an underlying
felony. (Citations omitted.)
See also Lopez v. State, 108 Idaho 394, 700 P.2d 16 (1985); State
v. Berney, 378 N.W.2d 915 (Iowa 1985); Hawkins v. State, 302 Md.
143, 486 A.2d 179 (1985).
The language of W. Va. Code, 61-11-19 (1943), which
outlines the general procedure for trying a recidivist charge
demonstrates that the recidivist charge is not triggered until
there has been an initial conviction. The prosecuting attorney
after this initial conviction gives the Court information as to the
"former sentence or sentences to the penitentiary of" the
defendant. This information must be given "to the court
immediately upon conviction and before sentence." W. Va. Code, 61-
11-19 (1943).See footnote 4 Moreover, the prosecutor is required "before expiration of the term at which such person was convicted" to file
an information, "setting forth the records of conviction and
sentence, or convictions and sentences."See footnote 5 These records obviously
relate to the prior felony convictions of the defendant and not the
conviction that triggers the recidivist charge. It is this latter
conviction which receives an enhanced sentence once the recidivist
conviction is obtained as we pointed out in Gibson, supra.
Thus, under W. Va. Code, 61-11-19 (1943), a recidivist
proceeding does not require proof of the triggering offense because
such triggering offense must be proven prior to the invocation of
the recidivist proceeding. At the recidivist proceeding, proof of
the prior felony or felonies convictions that are used to establish
the recidivist conviction must be shown. Such recidivist
conviction will then be used to enhance the penalty of the
underlying triggering conviction. Consequently, the circuit court
was correct in refusing to allow the jury to consider the triggering felony of jail escape as a necessary element of proof
for the life recidivist conviction.
III
We have recognized that it is possible for a life
recidivist conviction to violate the specific proportionality
provision contained in Article III, Section 5 of the West Virginia
Constitution that states "[p]enalties shall be proportioned to the
character and degree of the offense."See footnote 6 Recently, in syllabus point
5 of State v. Jones, 187 W. Va. 600, 420 S.E.2d 736 (1992), we
quoted our prior law setting out how our proportionality standard
is applied in a life recidivist context.
"'The appropriateness of a life recidivist
sentence under our constitutional
proportionality provision found in Article
III, Section 5 [of the West Virginia
Constitution], 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)." Syllabus Point 2, State v.
Housden, 184 W. Va. 171, 399 S.E.2d 882
(1990).See footnote 7
In State v. Jones, supra, we declined to hold that our
proportionality principle was violated. There, the defendant had
made threats to an appliance repairman that he would kill him if
a new stove was not delivered to his home. At the time the threats
were made the defendant was armed. Although the repairman was able
to escape, we emphasized that "there was most certainly the threat
of violence." 187 W. Va. at 605, 420 S.E.2d at 741. This was the
last or triggering offense for the life recidivist conviction and
as illustrated, by Jones' syllabus it is given particular
emphasis. This defendant's two prior convictions were for burglary
and grand larceny.
Recently in State v. Davis, 189 W. Va. 59, 427 S.E.2d 754
(1993), we found that a life recidivist sentence violated our
proportionality rule where the defendant's last conviction was for
breaking and entering of a store. This occurred after closing
hours and approximately $10.00 was taken from a small change box.
Two earlier felonies formed the basis for the life recidivist
charge. One was a grand larceny conviction for receiving stolen
property. The second was a second breaking and entering of a store
after it had closed. In Davis, we found that the last felony was
non-violent in the context of the occurrence as were the earlier
two felonies, and, thus, the life sentence was disproportionate.
In this case, the last felony was jail escape and the
record surrounding its occurrence was developed at the sentencing
hearing. It showed that the defendant had called the jailor to
come into the cell block which was a dimly lighted area. When he
arrived near the defendant's cell he was struck in the head. He
was seized by other inmates and bound, gagged, and placed in the
defendant's cell. His keys were taken by the inmates who then
secured their release. Although the jailor could not identify who
had struck him, the Court found that the defendant had participated
in the act. This finding accords with the facts for without the
defendant's inducing the jailor to come into the cellblock the
attack would not have occurred.
Thus, we find that there was actual violence present in
the third felony and the defendant was a party to it. One can hardly envision when contemplating participating in a jail break
that it will be accomplished without violence. We deem this act a
sufficient basis for meeting our proportionality test. Moreover,
even though the record of the two prior felonies does not indicate
that they occurred with any actual or threatened violence,
nevertheless, the crime of second degree arson to which the
defendant entered a guilty plea is a serious offense as illustrated
by its statutory definition in W. Va. Code, 61-3-2 (1935).See footnote 8
For the foregoing reasons, we conclude that the
defendant's conviction as a life recidivist does not violate our
proportionality principles. Consequently, we affirm the judgment
of the Circuit Court of Braxton County as set out in its order of
April 15, 1994.
Affirmed.
Footnote: 1
W. Va. Code, 61-11-18(c) (1994) provides in relevant part:
When it is determined, as provided in
section nineteen hereof, 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.
This section was amended in 1994, however, the same language
is found in W. Va. Code, 61-11-18 (1943). The 1994 amendment made
some minor changes in the first paragraph designated subsection (a)
and inserted subsection (b) dealing with eligibility of parole for
recidivist proceedings involving convictions of first or second
degree murder or violation of W. Va. Code, 61-8B-3 (1991) (first
degree sexual assault).Footnote: 2
W. Va. Code, 61-5-10 (1990) states in relevant part:
(b) If any person be lawfully confined in
jail or private prison and not sentenced on
conviction of a criminal offense, shall escape
therefrom by any means, such person shall, (i)
if he be confined upon a charge of a felony,
be guilty of an additional felony, and, upon
conviction thereof, shall be confined in the
penitentiary not less than one nor more than
five years...."
Note: W. Va. Code, 61-5-10 was rewritten in 1994 with minor
changes in subsection (b)(i) that do not affect this case.
Footnote: 3
See supra, note 1 for the pertinent text of W. Va. Code, 61-
11-18 (1994).Footnote: 4
The applicable portion of W. Va. Code, 61-11-19 (1943)
states:
It shall be the duty of the prosecuting
attorney when he has knowledge of former
sentence or sentences to the penitentiary of
any person convicted of an offense punishable
by confinement in the penitentiary to give
information thereof to the court immediately
upon conviction and before sentence.Footnote: 5
The pertinent language of W. Va. Code, 61-11-19 (1943) is:
[B]efore expiration of the term at which such
person was convicted, . . . and upon an
information filed by the prosecuting attorney,
setting forth the records of conviction and
sentence, or convictions and sentences, as the
case may be, and alleging the identity of the
prisoner with the person named in each. . . .Footnote: 6
The complete text of Article III, Section 5 states:
Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual
punishment inflicted. Penalties shall be
proportioned to the character and degree of
the offense. No person shall be transported
out of, or forced to leave the State for any
offense committed within the same; nor shall
any person, in any criminal case, be compelled
to be a witness against himself, or be twice
put in jeopardy of life or liberty for the
same offense.Footnote: 7
In syllabus point 3 of State v. Jones, supra, we gave this
summary of the purpose behind our recidivist statute:
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.Footnote: 8
W. Va. Code, 61-3-2 (1935) states:
Any person who willfully and maliciously sets fire to or burns or causes to be burned, or who aids, counsels or procures the burning of any building or structure of any class or character, whether the property of himself or of another, not included or prescribed in the preceding section [§ 61-3-1], shall be guilty of arson in the second degree, and upon conviction thereof, be sentenced to the penitentiary for not less than one nor more than ten years.
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