844 S.E.2d 99
W. Va.2020Background
- On June 12, 2018 Mills was stopped in Mingo County; a passenger reported Mills had thrown a gun from the car and the weapon and matching ammunition were recovered. Mills had a prior felony conviction in Kentucky.
- Mills was indicted under West Virginia Code § 61-7-7(b) (2016) for being a felon in possession of a firearm, which applies to persons previously convicted of a “felony crime of violence against the person of another” or a felony sexual offense.
- Mills moved to dismiss arguing (1) the WV felon-in-possession statute is void for vagueness and (2) his predicate Kentucky conviction (wanton endangerment in the first degree, Ky. Rev. Stat. § 508.060) is not a “crime of violence” under § 61-7-7(b)(1).
- The circuit court held the Kentucky wanton-endangerment statute is a felony crime of violence as that statute’s elements include creating a substantial danger of death or serious physical injury, and denied the motion to dismiss.
- Mills entered a conditional guilty plea preserving the issues for appeal. The Supreme Court of Appeals of West Virginia affirmed the denial of the motion to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether W. Va. Code § 61-7-7(b) is unconstitutionally vague under the Due Process Clauses | Mills: statute is vague and susceptible to arbitrary enforcement (invokes Supreme Court decisions invalidating residual clauses). | State: statute contains an elements clause and an enumerated clause (no residual clause), so it gives fair notice and workable standards. | Court: statute is not void for vagueness; it contains an elements clause, not an impermissible residual clause, and survives due process review. |
| Whether Kentucky wanton endangerment in the first degree (§ 508.060) is a “felony crime of violence against the person of another” under § 61-7-7(b)(1) | Mills: his prior conviction does not qualify as a crime of violence under WV law. | State: Kentucky § 508.060 requires conduct that creates a substantial danger of death or serious physical injury, meeting the elements-clause definition. | Court: Kentucky first-degree wanton endangerment satisfies the elements of a crime of violence and qualifies as the predicate felony. |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (ACCA residual clause unconstitutionally vague)
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (INA residual clause unconstitutionally vague)
- United States v. Davis, 139 S. Ct. 2319 (2019) (§ 924(c)(3) residual clause unconstitutionally vague)
- State v. Flinn, 158 W. Va. 111, 208 S.E.2d 538 (1974) (criminal statutes must give persons of ordinary intelligence fair notice)
- State ex rel. Appalachian Power Co. v. Gainer, 149 W. Va. 740, 143 S.E.2d 351 (1965) (statutes presumed constitutional; courts should construe to preserve constitutionality)
- State v. Grimes, 226 W. Va. 411, 701 S.E.2d 449 (2009) (standard of review for motions to dismiss after evidentiary hearing)