State of West Virginia v. Mark A. Kilmer, 808 S.E.2d 867

Background

In 2014 Kilmer was indicted for multiple violent offenses arising from an attack on his ex‑girlfriend; jury convicted him of unlawful assault (count one), two counts of domestic battery, and second‑degree sexual assault. Other sentence components are not at issue on appeal.
The State filed a recidivist information under W. Va. Code § 61‑11‑18(c) based on the unlawful assault conviction (predicate) and two prior felony convictions (2010 and 2012) for third‑offense driving while license revoked for DUI; Kilmer admitted the priors.
The circuit court denied Kilmer’s motion arguing the life recidivist sentence violated Article III, § 5 proportionality and sentenced him to life in prison; Kilmer also moved for judgment of acquittal on sufficiency grounds, which was denied.
On appeal Kilmer argued (1) the recidivist life sentence is disproportionate because his two priors are nonviolent and (2) the evidence was insufficient to support the convictions; the State defended the life sentence citing the violent predicate and argued the priors are analogous to upheld recidivist cases.
The Supreme Court of Appeals applied the objective proportionality test emphasizing the nature of the triggering offense plus the character of the two prior felonies and concluded the two prior convictions for driving while license revoked for DUI are nonviolent for recidivist purposes.
Result: the court reversed the life recidivist sentence and remanded for resentencing on the unlawful assault count; the sufficiency challenge was summarily rejected below and not reached on the merits by the Court.

Issues

Issue	Kilmer's Argument	State's Argument	Held
Whether imposing a life recidivist sentence under W. Va. Code § 61‑11‑18(c) violated Article III, § 5 proportionality when the predicate felony was violent but the two prior felonies were for driving while license revoked for DUI	Life sentence is disproportionate because the two prior felonies are nonviolent and thus do not justify recidivist life exposure	The violent predicate (unlawful assault) plus the priors (DUI‑revoked felonies) satisfy recidivist goals; Appleby supports treating DUI‑related offenses as involving threatened violence	Reversed: priors for driving while license revoked for DUI are not crimes involving actual or threatened violence for purposes of the recidivist statute; life sentence violates state proportionality clause
Whether the circuit court erred by denying Kilmer’s motion for judgment of acquittal based on insufficiency of the evidence	Evidence was insufficient to support convictions	Evidence at trial supported the convictions	Not addressed on the merits by the Court; appellate record summary concluded circuit court did not abuse discretion in denying the motion

Key Cases Cited

State v. Beck, 167 W. Va. 830, 286 S.E.2d 234 (1981) (upheld recidivist life sentence where predicate and other felonies were violent)
Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981) (reversed recidivist life sentence where predicate and priors were nonviolent; emphasizes offense gravity)
State v. Miller, 184 W. Va. 462, 400 S.E.2d 897 (1990) (reversed recidivist life sentence despite violent predicate because prior felonies were nonviolent; requires close examination of priors)
State ex rel. Appleby v. Recht, 213 W. Va. 503, 583 S.E.2d 800 (2002) (concluded repeated DUI convictions involve potential/ threatened violence and can support recidivist sentence)
State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997) (sets standard of review for sentencing orders)
State v. Booth, 224 W. Va. 307, 685 S.E.2d 701 (2009) (summarily referenced for standard on judgment of acquittal review)