STATE of West Virginia ex rel. David APPLEBY Petitioner, v. Honorable Arthur M. RECHT, Judge of the Circuit Court of Ohio County, Respondent.
No. 30737.
Supreme Court of Appeals of West Virginia.
Submitted Nov. 13, 2002. Decided Dec. 4, 2002. Dissenting Opinion of Justice Albright Dec. 11, 2002.
583 S.E.2d 800 | 213 W. Va. 503
William J. Ihlenfeld, Assistant Prosecuting Attorney, Wheeling, for the Respondent.
PER CURIAM.
David Appleby, (hereinafter “Mr. Appleby“), petitioner and defendant below, invokes this Court‘s original jurisdiction in prohibition and seeks a writ prohibiting the State from proceeding to try him as a recidivist upon his conviction for driving under the influence (hereinafter “DUI“), third offense, based upon one predicate felony of unlawful assault and two prior felony convictions of DUI, third offense. After having reviewed Mr. Appleby‘s petition and memorandum of law, the State‘s memorandum in opposition, reviewing the pertinent authorities and hearing the arguments of counsel, we deny the writ.
I.
FACTUAL AND PROCEDURAL HISTORY
On September 10, 2001, an Ohio County Grand Jury returned a two-count indictment against Mr. Appleby charging him with DUI, third offense, in violation of
On October 31, 2001, Mr. Appleby admit
On November 21, 2001, the day scheduled for trial on the DUI, third offense count, Mr. Appleby pled guilty to both counts of the indictment. He was represented by counsel at this time—as he had been since at least October 31, 2001. The Prosecuting Attorney stated to the trial court that the State and Mr. Appleby had no plea agreement and that Mr. Appleby‘s plea was “just a straight plea to the indictment.”2 At the plea hearing, the trial court advised Mr. Appleby that the maximum term of imprisonment for each of the offenses to which he pled guilty was one to three years, and that since the sentences could be imposed consecutively, the maximum sentence he could receive was incarceration for a term of two to six years. The trial court did not indicate that the State could initiate a recidivist proceeding. The trial court accepted the plea but, notwithstanding Mr. Appleby‘s waiver of the report, deferred sentencing until a presentence report could be completed.
Thereafter, the State filed information alleging that Mr. Appleby was a recidivist in that he had three prior convictions for DUI, third offense, one unlawful assault conviction and one felony conviction for driving on a revoked license for DUI, third offense. If sentenced as a recidivist, Mr. Appleby was subject to a life sentence with the opportunity for parole.
Mr. Appleby apparently filed a motion to dismiss the recidivist information in the circuit court. After securing new counsel, (different from the one who represented him at the November 21, 2001, plea), Mr. Appleby alleged additional grounds to dismiss the recidivist information. The trial court denied all relief. Mr. Appleby then sought an original jurisdiction prohibition from this Court.
II.
GROUNDS FOR ISSUING THE WRIT
A writ of prohibition lies “as a matter of right in all cases of usurpation and abuse of power, when the inferior court has no jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers.”
In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal‘s order is clearly erroneous as a matter of law; (4) whether the lower tribunal‘s order is an often repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal‘s order raises new and important problems or issues of law of first impression. These factors are general
guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.
We conclude that the trial court did not commit clear legal error in this case. Consequently, we deny the writ.
III.
DISCUSSION
Mr. Appleby sets forth a number of assignments of error. Mr. Appleby argues that the circuit court erred in not dismissing the recidivist proceeding because when he plead guilty, the circuit court informed him he would only be facing a possible maximum sentence of two to six years—not the possibility of a life sentence as a recidivist; that the prosecuting attorney‘s failure to advise Mr. Appleby at the point he plead guilty that the State would seek a recidivist enhancement violated
A. The Trial Court and State Complied with West Virginia Code § 61-11-18 and West Virginia Rule of Criminal Procedure 11 . Additionally, none of Mr. Appleby‘s Constitutional Rights Were Violated by the Trial Court‘s Actions.
On the morning trial was to commence, November 21, 2001, Mr. Appleby informed the trial court that he wished to plead guilty to both counts of the indictment. As the trial court noted, there was no written plea “because there‘s simply no time for that, which is all right.” The trial court accepted the guilty pleas. Mr. Appleby‘s trial counsel advised the court that Mr. Appleby waived a presentence report and that “actually, it‘s been his intention for sometime just to move on and get his sentence.” The Prosecuting Attorney opposed sentencing. The trial court indicated his appreciation for Mr. Appleby‘s position, but the trial court delayed sentencing to await a presentence report because there were issues of consecutive or concurrent sentencing. Thereafter, on November 24, the State filed the recidivist information.3
Mr. Appleby argues that the State‘s delay of three days in filing the information violated the requirements of
Mr. Appleby specifically contends that the State‘s delay in filing the recidivist information from November 21 to November 24 was impermissible because it was not immediate notice in open court as required by
We said in syllabus point 1 of State v. Cain, 178 W.Va. 353, 359 S.E.2d 581 (1987) (emphasis added):
A person convicted of a felony may not be sentenced pursuant to
W. Va.Code, 61-11-18 ,-19 [1943], unless a recidivist information and any or all material amendments thereto as to the person‘s prior conviction or convictions are filed by the prosecuting attorney with the court beforeexpiration of the term at which such person was convicted, so that such person is confronted with the facts charged in the entire information, including any or all material amendments thereto. W. Va. Code, 61-11-19 [1943].
More recently, we said in Syllabus point 2 of State v. Cavallaro, 210 W.Va. 237, 557 S.E.2d 291 (2001) (per curiam) (emphasis added):
“A person convicted of a felony cannot be sentenced under the habitual criminal statute, [W. Va.]
Code § 61-11-19 [(2000)], unless there is filed by the prosecuting attorney with the court at the same term, and before sentencing, an information as to the prior conviction or convictions and for the purpose of identification the defendant is confronted with the facts charged in the information and cautioned as required by the statute.” Syllabus point 3, State ex rel. Housden v. Adams, 143 W.Va. 601, 103 S.E.2d 873 (1958).
Thus, we believe the immediacy requirement is satisfied if the State files the information before sentencing and prior to the end of the term of court within which the defendant was convicted. To hold otherwise would risk a defendant being able to avoid imposition of a recidivist sentence if the State is unaware at the time of conviction of any predicate offenses. Such an inadvisable result would emasculate “[t]he primary purpose of our recidivist statutes,
A statute is enacted as a whole with a general purpose and intent, and each part should be considered in connection with every other part to produce a harmonious whole. Words and clauses should be given a meaning which harmonizes with the subject matter and the general purpose of the statute. The general intention is the key to the whole and the interpretation of the whole controls the interpretation of its parts.
In this case, the recidivist information was filed before sentencing and prior to the end of the term of court within which Mr. Appleby was convicted. Therefore, he has no legal basis upon which to complain.
This does not end our inquiry. Mr. Appleby also posits that the trial court‘s failure to advise him that he faced a life sentence under the recidivist act violates
[b]efore accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, ... [t]he nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law[.]
Mr. Appleby contends that the trial court‘s information was erroneous and that the recidivist proceeding should be prohibited by this Court. We believe Mr. Appleby‘s application of
“Guilty pleas are governed by Rule 11 of the West Virginia Rules of Criminal Procedure, which is patterned after Rule 11 of the
The advisory committee note to the 1974 amendment to Federal Rule of Criminal Procedure 11 provides, in pertinent part:
It has been suggested that it is desirable to inform a defendant of additional consequences which might follow from his plea of guilty.... The ABA Standards Relating to Pleas of Guilty § 1.4(c)(iii) (Approved Draft, 1968) recommend that the defendant be informed that he may be subject to additional punishment if the offense charged is one for which a different or additional punishment is authorized by reason of the defendant‘s previous conviction.
Under the rule the judge is not required to inform a defendant about these matters, though a judge is free to do so if he feels a consequence of a plea of guilty in a particular case is likely to be of real significance to the defendant.
(Emphasis added). Thus,
We find further support in the recognition of the Fourth Circuit that:
The law is clear that a valid plea of guilty requires that the defendant be made aware of all “the direct consequences of his plea.” By the same token, it is equally well settled that, before pleading, the defendant need not be advised of all collateral consequences of his plea, or, as one Court has phrased it, of all “possible ancillary or consequential results which are peculiar to the individual and which may flow from a conviction of a plea of guilty,....”
Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364, 1365-66 (4th Cir.1973) (citations omitted). “The distinction between ‘direct’ and ‘collateral’ consequences of a plea, while sometimes shaded in the relevant decisions, turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant‘s punishment.” Id. at 1366.
Under
The possible significance of a guilty verdict for purposes of the habitual offender act is a classic example of a conviction‘s
consequences that is collateral in the sense that the consequence requires application of a legal provision extraneous to the definition of the criminal offense and the provisions for sentencing those convicted under it. Thus, we have consistently held that a sentencing court need not advise a defendant about the habitual offender law before accepting a guilty plea to a predicate offense under that law[.]
The procedure used in the case below was consistent with our statutes and, thus, consistent with constitutional mandate. See Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962) (affirming the constitutionality of West Virginia‘s recidivist statutes). In the case sub judice:
Petitioner was fully advised of the nature of the charge; he was represented by counsel; the plea was entered freely and voluntarily, and the alleged lack of knowledge of a permissible increased penalty because petitioner was a recidivist is not sufficient to void the plea.
United States ex rel. Toland v. Phimister, 296 F.Supp. 1027, 1029 (S.D.N.Y.1969).6
In short, “neither the constitution nor [
B. West Virginia Code §§ 61-11-18 and 19 Are Constitutional.
Anticipating that we might rule against him, Mr. Appleby also challenges West Virginia‘s recidivist statutes on a number of other grounds.
The Petitioner cites Apprendi v. New Jersey, 530 U.S. 466, 469, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), claiming that the facts of the prior convictions under our recidivist statute must be plead in the charging indictment and proven to a jury beyond a reasonable doubt. We reject both of these contentions.
1. There is No Constitutional Requirement that a Recidivist Enhancement be Charged in the Indictment for the Triggering Offense.
In West Virginia, recidivist proceedings are commenced by a separate information. See
At issue in Apprendi was the constitutional permissibility of a New Jersey statute empowering a trial judge to enhance a sentence if the judge found by a preponderance of the evidence that the motivation for the crime was “to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.” In finding the statute unconstitutional, the Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455 (emphasis added). This ruling was consistent with the Supreme Court‘s earlier opinion in Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.Ct. 1219, 1233, 140 L.Ed.2d 350, 371 (1998), where the Court held recidivism may be treated as a sentencing factor rather than an essential element of the underlying offense.
Apprendi expressly refused to revisit Almendarez-Torres. Apprendi 530 U.S. at 489-90, 120 S.Ct. at 2362, 147 L.Ed.2d at 454-55. While Apprendi noted tension with Almendarez-Torres, it refused to overrule that case thus carving out a narrow exception regarding recidivism. Apprendi 530 U.S. at 490, 120 S.Ct at 2362, 147 L.Ed.2d at 455. Thus, consistent with Almendarez-Torres, 523 U.S. at 243, 118 S.Ct. at 1231, 140 L.Ed.2d at 368,
a State need not allege a defendant‘s prior conviction in the indictment or information that alleges the elements of an underlying crime, even though the conviction was “necessary to bring the case within the statute.” Graham v. West Virginia, 224 U.S. 616, 624, 32 S.Ct. 583, 585-86, 56 L.Ed. 917 (1912).
2. There is No Federal Constitutional Requirement of Proof Beyond a Reasonable Doubt to a Jury of the Fact of Predicate Convictions.
Mr. Appleby also appears to contend that consistent with his view (a view we have rejected, see supra Part III.B.1) that not only must the recidivist charge be included in the original indictment charging the triggering offense, the fact of the predicate felonies must be proven to the jury beyond a reasonable doubt. However, Apprendi has not overruled Almendarez-Torres and we “apply Supreme Court precedent as it stands, and that precedent does not require that either the existence or substance of [the defendant‘s] earlier convictions be submitted to a jury and proven beyond a reasonable doubt.” United States v. Peltier, 276 F.3d 1003, 1006 (8th Cir.), cert. denied, 537 U.S. 862, 123 S.Ct. 246, 154 L.Ed.2d 103 (2002).
Indeed, Apprendi itself recognized a compelling rationale for treating prior convictions differently from elements of a present offense. The prior convictions have already been proven to a jury beyond a reasonable doubt (or such requirements have been waived by the defendant). See Apprendi, 530 U.S. at 496, 120 S.Ct. at 2366, 147 L.Ed.2d at 458-59 (“[T]here is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof.“). The United States Supreme Court applied similar rationale in two cases post-dating Apprendi, and concluded that, with the exception of denial of counsel claims, petitioners seeking post-conviction relief cannot challenge the validity of any predicate felonies. See, e.g., Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 403-04, 121 S.Ct. 1567, 1574, 149 L.Ed.2d 608, 618 (2001) (citations omitted) (“[O]nce a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), the conviction may be regarded as conclusively valid. If that conviction is later used to enhance a criminal sentence, the defendant generally may not challenge the enhanced sentence through a petition under [
The United States Supreme Court has said that states may not impose greater protections as a matter of federal constitutional law when the Supreme Court has specifically refrained from imposing them, but may do so as a matter of state law. See Arkansas v. Sullivan, 532 U.S. 769, 772, 121 S.Ct. 1876, 1878, 149 L.Ed.2d 994, 999 (2001) (per curiam) (citing Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570, 575-76 (1975)). The Supreme Court has spoken as a matter of federal constitutional law and concluded that there is no requirement that the existence of predicate convictions be submitted to a jury and proved beyond a reasonable doubt. We cannot, as a matter of federal constitutional law, adopt such a rule.
We further recognize, however, that Mr. Appleby does have a significant number of procedural rights as a matter of state law in a recidivist proceeding. See Wanstreet v. Bordenkircher, 166 W.Va. 523, 527, 276 S.E.2d 205, 209 (1981) (noting the “strict procedural standards” applicable to a recidivist proceeding). For example, under state law, a recidivist defendant has the right to require the State to prove to a jury beyond a reasonable doubt the fact of prior conviction, as well as the identity of the defendant as the person convicted of the predicate felonies and that the prior convictions occurred one after the other. Id. at 526-27, 276 S.E.2d at 208. Thus, we deny the writ.
C. Application of West Virginia‘s Recidivist Statute to a Repeated Drunk Driver Is Not Constitutionally Disproportionate.
Mr. Appleby contends that imposition of a recidivist life sentence would violate the proportionality principles of the state and federal constitutions.9 We first express some hesitation to delve into this issue. Mr. Appleby has not yet been tried as a recidivist, much less sentenced as one. However, because the possibility exists that Mr. Appleby may receive a recidivist sentence, we address his claims. See, e.g., State ex rel. McGraw v. Willis, 174 W.Va. 118, 119, 323 S.E.2d 600, 600 (1984) (“[B]ecause it is foreseeable that the question ... may surface again, the case is ripe for adjudication.“) Mr. Appleby first asks us to reconsider our unanimous conclusion in Syllabus point 3, in part, of State v. Williams, 196 W.Va. 639, 474 S.E.2d 569 (1996), that “[d]espite the fact that a third offense DUI felony conviction pursuant to
We first refuse to revisit a case of such recent vintage as Williams on the ground we have misunderstood statutory intent—especially given that the legislature has not amended
Mr. Appleby also posits a constitutional argument not raised in Williams that driving under the influence is not a serious crime so that imposition of a life sentence would violate the proportionality guarantees of the federal and state constitutions. He cites Solem v. Helm, 463 U.S. 277, 296-97, 103 S.Ct. 3001, 3013, 77 L.Ed.2d 637, 653 (1983), for the proposition that crimes such as burglary and DUI, third offense, are “relatively minor.”11 We strongly disagree with the Solem majority. We join in the recognition of the Solem dissenters that “[a]t the very least, respondent‘s burglaries and his third-offense drunk driving posed real risk of serious harm to others. It is sheer fortuity that the places respondent burglarized were unoccupied and that he killed no pedestrians while behind the wheel.” Id. at 315-16, 103 S.Ct. at 3023, 77 L.Ed.2d at 665 (Burger, C.J., Rehnquist, O‘Connor & White, JJ., dissenting).12 The Supreme Court itself has recognized in the years since Solem that, “the offense of driving while intoxicated is increasingly regarded in many jurisdictions as a very serious matter.” Berkemer v. McCarty, 468 U.S. 420, 432, 104 S.Ct. 3138, 3146, 82 L.Ed.2d 317, 330 (1984) (footnote omitted).13 In Michigan Department of State Police v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 2485-86, 110 L.Ed.2d 412, 420-21 (1990) (footnote omitted) the Court observed:
No one can seriously dispute the magnitude of the drunken driving problem or the States interest in eradicating it. Media reports of alcohol-related death and mutilation on the Nation‘s roads are legion. The anecdotal is confirmed by the statistical. “Drunk drivers cause an annual death toll of over 25,000 and in the same time span cause nearly one million personal injuries and more than five billion dollars in property damage.” 4 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 10.8(d), p. 71 (2d ed.1987). For decades, this Court has “repeatedly lamented the tragedy.” South Dakota v. Neville, 459 U.S. 553, 558, 103 S.Ct. 916, 920, 74 L.Ed.2d 748 (1983); see Breithaupt v. Abram, 352 U.S. 432, 439, 77 S.Ct. 408, 412, 1 L.Ed.2d 448 (1957) (“The increasing slaughter on our highways ... now reaches the astounding figures only heard of on the battlefield“).
The statistics recited in Sitz mirror those in West Virginia. In 2001, 131 people lost their lives in alcohol related traffic incidents in West Virginia and annual alcohol related crash costs in West Virginia—including medical care, work loss, public service (emergency personnel), property damage and legal
Our view accords with the dissenters in Solem, the jurisdictions noted in Berkemer, and the majority in Sitz. “The dangers inherent in driving on the public streets while under the influence of an intoxicant are obvious.” State v. Luke, 995 S.W.2d 630, 638 (Tenn.Ct.Crim.App.1998). In short, “operating an automobile while under the influence is reckless conduct that places the citizens of this State at great risk of serious physical harm or death.” State ex rel. State v. Gustke, 205 W.Va. 72, 81, 516 S.E.2d 283, 292 (1999).14 Mr. Appleby‘s record includes an astounding four third-offense driving under the influence felony convictions (and a grand total of eight acts of driving under the influence),15 and one unlawful assault conviction. We have little trouble in finding that driving under the influence is a crime of violence supporting imposition of a recidivist sentence. “A conviction for driving under the influence is a serious conviction warranting consideration in the calculation of a defendant‘s criminal history category.” United States v. Julian, 112 F.3d 511 (4th Cir.1997) (per curiam) (unpublished) (text available in Westlaw).
Mr. Appleby cites us federal statutory immigration law that excludes driving under the influence convictions from the definition of crimes of violence. He also asserts that crimes with an intent component are more culpable than crimes of recklessness and punishment should be measured accordingly. We take exception to both of these contentions.
We reject the application of federal immigration law. To the extent that any federal law should guide us, we think a more appropriate measurement for a crime of violence is that contained in the United States Sentencing Guidelines. United States Sentencing Guideline § 4B1.2, application note 1, provides “Other offenses are included as ‘crimes of violence’ if (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted by its nature, presented a serious potential risk of physical injury to another.” Consistent with our rea
By our reading of the recidivist information filed in this case, Mr. Appleby has been convicted of DUI, third offense, four times since 1993 (including the conviction now at issue before this Court). Moreover, the transcript of Mr. Appleby‘s guilty plea contains an uncontested statement from the Prosecuting Attorney that on the evening Mr. Appleby was arrested for the driving under the influence count that forms the basis of this proceeding, he admitted to the arresting officer that he had consumed thirty beers.17 We are in general agreement with the Idaho Court of Appeals that:
Driving under the influence of intoxicants is a serious offense. Although it is not a violent crime, driving while intoxicated inherently creates a grave risk of injury to persons and property and raises very significant concerns for public safety. The human suffering inflicted by those who drive while intoxicated is no less severe, and perhaps more pervasive, than that caused by intentional acts of violence. Hence the nature of the DUI offense tends to support a substantial sentence.
State v. Croston, 124 Idaho 471, 472-73, 860 P.2d 674, 675-76 (Ct.App.1993).18
The possible imposition of a life sentence for Mr. Appleby‘s egregious, socially reprehensible, apparently incorrigible and indisputably dangerous conduct violates no proportionality principle. Indeed, Mr. Appleby tells us in his memorandum of law that in at least eight states a life sentence may be possible, and two states may impose sen-
D. Mr. Appleby Cannot Prevail on a Void for Vagueness Challenge to West Virginia Code § 61-11-18 .
Mr. Appleby contends that
The void for vagueness doctrine is an aspect of the due process requirement that statutes set forth impermissible conduct with sufficient clarity that a person of ordinary intelligence knows what conduct is prohibited and the penalty if he transgresses these limitations.
“Elementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment[,] but also of the severity of the penalty that a State may impose.” State v. Miller, 197 W.Va. 588, 599, 476 S.E.2d 535, 546 (1996) (quoting BMW of North America, Inc. v. Gore, 517 U.S. 559, 574, 116 S.Ct. 1589, 1598, 134 L.Ed.2d 809, 826 (1996) (footnote omitted)).
State v. Easton, 203 W.Va. 631, 640, 510 S.E.2d 465, 474 (1998).
In a facial challenge to the vagueness of a law,
assuming the enactment implicates no constitutionally protected conduct, [the court] should uphold the challenge only if the enactment is impermissibly vague in all of its applications. A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant‘s conduct before analyzing other hypothetical applications of the law. Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 494-95, 102 S.Ct. 1186, 1191-92, 71 L.Ed.2d 362 [, 368-69] (1982) (footnote omitted).
Thus, the Court has recognized that a party has standing to challenge a statute facially if “no standard of conduct is specified at all,” Parker [v. Levy], 417 U.S. [733,], 757, 94 S.Ct. [2547,] 2562, [41 L.Ed.2d 439, 458 (1974),] that is, if the statute “is impermissibly vague in all of its applications.” Hoffman Estates, 455 U.S. at 497 [102 S.Ct. at 1193, 71 L.Ed.2d at 371]; Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983).
United States v. Westbrook, 817 F.2d 529, 532 (9th Cir.1987).19
Conviction of DUI, third offense, is “a felony” that carries with it a possible sentence of “imprison[ment] in a state correctional facility for not less than one nor more than three years....”
Moreover, it appears that Mr. Appleby is invoking the due process clause in a round about way to address his real complaint which is with our proportionality jurisprudence. Mr. Appleby challenges our recidivist statute claiming that in some instances this Court has affirmed recidivist sentences for some defendants, but has reversed the recidivist sentences for others, even though these defendants were convicted of the same offenses or had the same predicate felonies. Even assuming the accuracy of Mr. Appleby‘s assertion20 that West Virginia‘s sentencing scheme might indeed permit another defendant guilty of the same crime to receive a lesser sentence .... that is no reason for altering [his] punishment or declaring the law unconstitutional. Judicial discretion naturally leads to discrepancies in sentencing, as [he] complains. But even wide sentencing discretion in the abstract is not a violation of due process or equal protection. [T]he issue is the appropriateness of the sentence given the defendant‘s crime: “Discretion, even if it ends in grossly unequal treatment according to culpability, does not entitle a guilty defendant to avoid a sentence appropriate to his own crime.” Holman v. Page, 95 F.3d 481, 486 (7th Cir.1996) (citation omitted).
Having already disposed of Mr. Appleby‘s proportionality claims, see supra Part 3.C, we need not readdress them here. See Portuondo v. Agard, 529 U.S. 61, 74, 120 S.Ct. 1119, 1127, 146 L.Ed.2d 47, 59 (2000) (“Of course to the extent this [14th Amendment due process] claim is based upon al
IV.
CONCLUSION
The Petition for a Writ of Prohibition is denied.
Writ denied.
Justice MAYNARD concurs and reserves the right to file a concurring opinion.
ALBRIGHT, Justice, dissenting.
(Filed Dec. 11, 2002)
I respectfully dissent from the majority position because I firmly believe that a writ of prohibition should have been granted in this case. In my view, two issues of constitutional proportion deserved full exploration which cannot be found in the majority opinion. The first of these is the interplay of State v. Nichols, 208 W.Va. 432, 541 S.E.2d 310 (1999), on the fundamental fairness we have always required in recidivist proceedings. The second is the decision in State v. Williams, 196 W.Va. 639, 474 S.E.2d 569 (1996), permitting the use in recidivist proceedings of offenses which are felonies solely by reason of status elements such as we addressed in State v. Nichols.
I. The Interplay of State v. Nichols, Fundamental Fairness and Recidivist Proceedings
Nichols allows a defendant charged with an offense which is enhanced by prior convictions of like offenses to elect to admit before trial the prior convictions, called “status elements” of the enhanced offense, in order to avoid the possibility that a jury will be swayed to convict a defendant of the charged offense because of the prior convictions.
In the case before us, the petitioner was charged with third offense driving under the influence (hereinafter “DUI“) and third offense driving on a license suspended for DUI. Taking advantage of Nichols, the petitioner admitted the prior convictions at a hearing held by the circuit court before trial. On the day set for trial of the charged offense, the petitioner pled guilty to the charged felony offenses as well, thus subjecting himself to two sentences enhanced by his prior convictions. Subsequent to the petitioner‘s guilty plea, the State filed an information against the petitioner, seeking to further enhance his sentence under West Virginia Code §§ 61-11-18 and 19 (also referred to hereinafter as “recidivist statute“). Under the information, the petitioner would be liable to imprisonment for life unless sooner paroled.
The majority found that the information filed under the recidivist statute constituted timely notice to the petitioner of the State‘s intent to seek a life term of imprisonment and did not offend
However, the majority failed to seriously examine the issue of adequate notice in light of our 1999 decision in Nichols and our holdings in other recidivist cases that a judge about to hear a recidivist information is required to “duly caution” a defendant regarding the penalties to which any admissions may expose a defendant.
There is no justifiable reason why a prosecutor, having drawn an indictment stating certain prior convictions relied upon to raise the charged offenses to a felony should be permitted to stand silent on the State‘s intent to seek even further enhancement by way of a recidivist information, when a defendant is about to completely “cook his own goose” by making admissions under Nichols or in a
Perhaps more to the point is that this State has long recognized that a defendant is entitled, as a matter of fundamental fairness, to be “duly cautioned” before making admissions that may enhance a sentence by reason of recidivism.2 In its rush to uphold the result below in this case, the majority did not consider the due process implications of the Nichols procedure upon a subsequent and then unannounced intent to seek a life sentence under the recidivist statute. See Syl. Pt. 7, Ex parte Watson, 82 W.Va. 201, 95 S.E. 648 (1918) (when interpreting a statute the presumption is that the Legislature had a purpose in the use of every word, phrase and clause found in a statute and intended the terms so used to be effective). Pursuant to
A recidivist proceeding is not simply a sentencing hearing, but a proceeding whereby a new criminal status, that of being an habitual criminal, is determined.... If an individual is successfully prosecuted as an habitual criminal, a greater penalty than that attaching to the underlying crime is imposed. For these reasons, courts have required substantial
due process protection in recidivist proceedings.
Id. at 225, 262 S.E.2d at 429 (citations omitted).
Given the heightened due process protections which are implicated by recidivist proceedings, it is obvious that unless those protections are extended to admissions given under Nichols, their subsequent employment in the actual recidivist proceeding will be mere sham justice, devoid of any meaning whatever. Fundamental fairness requires that the State inform the trial court of its intent to file a recidivist information before admissions are made in a Nichols hearing whenever the State intends to use in a recidivist proceeding any prior convictions which are status elements in the charged offense in order to preserve any semblance of the defendant‘s due process rights to be “duly cautioned.”3
II. It is Time to Reverse State v. Williams
The petitioner contended that this Court misapprehended legislative intent in deciding State v. Williams, in which it was held that a felony conviction resulting from one or more enhanced misdemeanor convictions could be used to form the basis for sentence enhancement under the terms of the recidivist statute. I am not convinced that this issue was ripe for decision at this juncture and should have been thus decided.4 However, the majority chose instead to summarily conclude that reconsideration of Williams was not in order because the Legislature has not chosen to amend the recidivist statute since Williams was decided. My initial reaction to this declaration of presumptive knowledge of legislative intent is that it overlooks the fact that the decision in Williams was reached without reliance on any relevant statutory change, but nonetheless overturned a seven-ty-year-old precedent established in State v. Brown, 91 W.Va. 187, 112 S.E. 408 (1922).
I am even more concerned that by providing such cursory consideration of the proportionality argument the majority failed to recognize that our decision in Williams has broader implications than convictions under the DUI statute. A number of offenses can be construed to fall within the Williams classification for purposes of imposing a recidivist sentence, many of which have no general association with violence or threats of violence. See, e.g.,
This Court has recognized that since the recidivist statutes are in derogation of the common law they “are generally held to require a strict construction in favor of the prisoner.” State ex rel. Ringer v. Boles, 151 W.Va. 864, 871, 157 S.E.2d 554, 558 (1967). We relied on this proposition in Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981), when we noted that this Court has historically adopted a rather strict and narrow construction of the recidivist statute. The discussion thereafter in Wanstreet related various instances wherein this narrow construction occurred with specific reference to our decision in State v. Brown, 91 W.Va. 187, 112 S.E. 408 (1922):
In Brown, we explained that the felonies within the scope of the recidivist statute must be those that are felonies because of the “character of the offense,” rather than
those that are felonies because of the “character of the accused.”
Wanstreet at 526, 276 S.E.2d at 208 (citation omitted.). Although our decision in Williams overruled Brown by placing felony convictions based on predicate misdemeanor offenses within the ambit of the recidivist statute, this statement with regard to the character of the offense subject to the provisions of the recidivist statute retains its vitality. The Wanstreet discussion concerning the narrow construction of the recidivist statute concluded by saying that “it is apparent that we have consistently viewed the West Virginia recidivist statute in a restrictive fashion in order to mitigate its harshness.” Wanstreet at 528, 276 S.E.2d at 209. Trial courts are well-advised to continue to adhere to these principles as standards against which proportionality issues are decided in recidivist proceedings. As summarized in syllabus point five of Wanstreet, determination of “whether a given sentence violates the proportionality principle found in Article III, Section 5 of the West Virginia Constitution, consideration is given to the nature of the offense, the legislative purpose behind the punishment, a comparison of the punishment with what would be inflicted in other jurisdictions, and a comparison with other offenses within the same jurisdiction.” 166 W.Va. at 523-24, 276 S.E.2d at 207.5
It seems to me far wiser to humbly admit the error in foresight and correct it, especially when constitutional rights are inadvertently trampled upon. The principle of stare decisis is not intended to perpetuate such errors. As we related in State v. Nichols,
” ‘Remaining true to an “intrinsically sounder” doctrine ... better serves the values of stare decisis.... In such a situation “special justification” exists to depart from the recently decided case.’ Adarand Constr., Inc. v. Pena, 515 U.S. 200, 231, 115 S.Ct. 2097, 2115, 132 L.Ed.2d 158 (1995).” Nichols at 445, 541 S.E.2d at 323 (1999).
For the foregoing reasons, I dissent from the majority opinion in this case. Regardless of whether this Court might choose to address its earlier decisions in State v. Williams and State v. Brown, I believe the petitioner is entitled to the writ prayed for in light of the interplay of State v. Nichols and the petitioner‘s entitlement to be “duly cautioned” under
I am authorized to state that Justice STARCHER joins in this separate opinion.
Notes
| Date of Conviction | Offense | Jurisdiction |
|---|---|---|
| June 14, 1988 | Driving under the Influence | Magistrate Court of Ohio County |
| December 2, 1992 | Driving under the Influence | County Court of Belmont County, Ohio |
| May 4, 1993 | Driving under the Influence, Third Offense | Circuit Court of Ohio County |
| May 9, 1995 | Driving under the Influence | County Court of Belmont County, Ohio |
| August 10, 1995 | Driving under the Influence, Third Offense | Circuit Court of Ohio County |
| May 27, 1997 | Driving under the Influence | Magistrate Court of Ohio County |
| September 8, 1998 | Driving under the Influence, Third Offense | Circuit Court of Ohio County |
Defendant also contends that his previous convictions for driving under the influence were not probative on the knowledge element of implied malice, because the convictions showed only that he knew such driving was unlawful, but not that he knew it was dangerous. However, the reason that driving under the influence is unlawful is because it is dangerous, and to ignore that basic proposition, particularly in the context of an offense for which the punishment for repeat offenders is more severe ... is to make a mockery of the legal system as well as the deaths of thousands each year who are innocent victims of drunken drivers.