STATE OF WEST VIRGINIA, Respondent v. CHRISTOPHER RUSSELL MILLS, Petitioner
No. 18-1132
Supreme Court of Appeals of West Virginia
June 8, 2020
CHIEF JUSTICE ARMSTEAD delivered the Opinion of the Court.
January 2020 Term. AFFIRMED. Appeal from the Circuit Court of Mingo County. The Honorable Miki J. Thompson, Judge. Criminal Action No. 18-F-82.
Matthew Brummond, Esq.
Public Defender Services
Charleston, West Virginia
Counsel for Petitioner
Submitted: April 14, 2020
Filed: June 8, 2020
Patrick Morrisey, Esq.
Attorney General
Andrea Nease-Proper, Esq.
Assistant Attorney General
Charleston, West Virginia
Counsel for Respondent
- “The constitutionality of a statute is a question of law which this Court reviews de novo.” Syllabus Point 1, State v. Rutherford, 223 W. Va. 1, 672 S.E.2d 137 (2008).
- “In considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches. Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question. Courts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond reasonable doubt.” Syllabus Point 1, State ex rel. Appalachian Power Company v. Gainer, 149 W. Va. 740, 143 S.E.2d 351 (1965).
- “This Court‘s standard of review concerning a motion to dismiss an indictment is, generally, de novo. However, in addition to the de novo standard, where the circuit court conducts an evidentiary hearing upon the motion, this Court‘s ‘clearly erroneous’ standard of review is invoked concerning the circuit court‘s findings of fact.” Syllabus Point 1, State v. Grimes, 226 W. Va. 411, 701 S.E.2d 449 (2009).
- “A criminal statute must be set out with sufficient definiteness to give a person of ordinary intelligence fair notice that his contemplated conduct is prohibited by statute and to provide adequate standards for adjudication.” Syllabus Point 1, State v. Flinn, 158 W. Va. 111, 208 S.E.2d 538 (1974).
- “There is no satisfactory formula to decide if a statute is so vague as to violate the due process clauses of the State and Federal Constitutions. The basic requirements are that such a statute must be couched in such language so as to notify a potential offender of a criminal provision as to what he should avoid doing in order to ascertain if he has violated the offense provided and it may be couched in general language.” Syllabus Point 1, State ex rel. Myers v. Wood, 154 W. Va. 431, 175 S.E.2d 637 (1970).
- “A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.” Syllabus Point 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951).
- “Where the language of a statute is plain and unambiguous, there is no basis for application of rules of statutory construction; but courts must apply the statute according to the legislative intent plainly expressed therein.” Syllabus Point 1, Dunlap v. State Compensation Director, 149 W. Va. 266, 140 S.E.2d 448 (1965).
- “Courts always endeavor to give effect to the legislative intent, but a statute that is clear and unambiguous will be applied and not construed.” Syllabus Point 1, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968).
- “Where the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to
interpretation.” Syllabus Point 2, Crockett v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 (1970). - West Virginia‘s felon in possession of a firearm statute,
West Virginia Code § 61-7-7(b) (2016) , is not void for vagueness under the Due Process Clauses contained in the United States Constitution,U.S. CONST. amends. V ,XIV , or the West Virginia Constitution,W. Va. CONST. art. III, § 10 .
Armstead, Chief Justice:
Christopher Russell Mills (“Mills”) entered a conditional guilty plea1 to the charge of felon in possession of a firearm2 and was sentenced to a determinate term of three years by the circuit court. As contemplated by his plea agreement, he now appeals the circuit court‘s order denying his motion to dismiss the indictment, on the grounds that West Virginia‘s felon in possession of a firearm statute,
For the reasons stated herein, we affirm the circuit court‘s denial of Mills’ motion to dismiss.
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 12, 2018, Mills was driving in Mingo County, West Virginia, when he was pulled over by a member of the Mingo County Sheriff‘s Department who was investigating a weapons complaint. After removing the occupants from the car, the Deputy Sheriff handcuffed and searched both Mills and his passenger. At that time, the passenger told the Deputy that Mills had thrown a gun out the window before he was pulled over. With the passenger‘s help, the gun was recovered, which also was the same caliber weapon as ammunition found in Mills’ pocket.
Mills, having been previously convicted of a felony, was charged with being a felon in possession of a firearm in violation of
(b) ... [A]ny person:
(1) Who has been convicted in this state or any other jurisdiction of a felony crime of violence against the person of another or of a felony sexual offense; ... (2) ... and who possesses a firearm as such is defined in section two of this article shall be guilty of a felony.
(1) A person is guilty of wanton endangerment in the first degree when, under circumstances manifesting extreme indifference to the value of human life, he wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person.
(2) Wanton endangerment in the first degree is a Class D felony.
Subsequently, Mills was indicted on the felon in possession of a firearm charge and was arraigned on September 27, 2018. Thereafter, Mills made a motion to dismiss the indictment, pursuant to
[C]onviction on or about the 21st day of December, 2015, of the crime of Wanton Endangerment First Degree, [
Ky. Rev. Stat. Ann. §] 508.060 , is a felony crime of violence against the person of another, as contemplated underW. Va. Code § 61-7-7(b)(1) .
Mills then entered his conditional plea, specifically preserving for appeal “the issue of whether or not [
II. STANDARD OF REVIEW
As there are two interrelated issues raised by this appeal we must apply two different, yet similar, standards of review. First, we have held that, “[t]he constitutionality of a statute is a question of law which this Court reviews de novo.” Syllabus Point 1, State v. Rutherford, 223 W. Va. 1, 672 S.E.2d 137 (2008). Since a statute is presumed to be constitutional, we must proceed with caution because to invalidate the actions of another branch of government requires a high level of proof:
In considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches. Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question. Courts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond reasonable doubt.
Syllabus Point 1, State ex rel. Appalachian Power Co. v. Gainer, 149 W. Va. 740, 143 S.E.2d 351 (1965). See also Syllabus Point 3, Willis v. O‘Brien, 151 W. Va. 628, 153 S.E.2d 178 (1967).
The context of this constitutional challenge arose from Mills’ motion to dismiss the indictment.
This Court‘s standard of review concerning a motion to dismiss an indictment is, generally, de novo. However, in addition to the de novo standard, where the circuit court conducts an evidentiary hearing upon the motion, this Court‘s “clearly erroneous” standard of review is invoked concerning the circuit court‘s findings of fact.
Syllabus Point 1, State v. Grimes, 226 W. Va. 411, 701 S.E.2d 449 (2009). Here, the circuit court conducted a hearing on the motion to dismiss and entered an order that reached a legal conclusion. Thus, we will apply a clearly erroneous standard of review to the factual determinations made by the circuit court, and a de novo standard to its legal conclusions, being mindful of our prior admonitions to tread carefully regarding the constitutional questions raised in this appeal.
III. ANALYSIS
This is a matter of first impression which asks us to determine if the provisions of
Both the United States and West Virginia Constitutions contain similar Due Process Clauses. The Fifth Amendment to the United States Constitution provides that “[n]o person shall . . . be deprived of life, liberty, or property, without due process of law.”
of fair play and the settled rules of law,” Connally v. General Constr. Co., 46 S. Ct. 126, 127 (1926), because “[i]n our constitutional order, a vague law is no law at all.” Davis, 139 S. Ct. at 2323. The Fifth Amendment prohibitions apply to the states through the Fourteenth Amendment‘s Due Process Clause: “No state shall . . . deprive any person of life, liberty, or property, without due process of law.”
West Virginia‘s Constitution contains nearly the identical language as the United States Constitution, “[n]o person shall be deprived of life, liberty, or property, without due process of law.”
A criminal statute must be set out with sufficient definiteness to give a person of ordinary intelligence fair notice that his contemplated conduct is prohibited by statute and to provide adequate standards for adjudication.
Syllabus Point 1, State v. Flinn, 158 W. Va. 111, 208 S.E.2d 538 (1974). To determine if a statute is void for vagueness, we have previously held that:
There is no satisfactory formula to decide if a statute is so vague as to violate the due process clauses of the State and Federal Constitutions. The basic requirements are that such a statute must be couched in such language so as to notify a potential offender of a criminal provision as to what he should avoid doing in order to ascertain if he has violated the offense provided and it may be couched in general language.
Syllabus Point 1, State ex rel. Myers v. Wood, 154 W. Va. 431, 175 S.E.2d 637 (1970).
We now move to the analysis of three recent decisions of the United States Supreme Court. We will discuss these three opinions in the order that they were decided by the Supreme Court. The first decision in that series was Johnson.
In Johnson, the Supreme Court was faced with a constitutional challenge to the residual provisions of the Armed Career
[A]ny crime punishable by imprisonment for a term exceeding one year . . . that—
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
crimes.”). Finally, the remaining portion of
When considering whether to enhance a criminal defendant‘s sentence under the elements clause or the residual clause of the ACCA, courts are to employ what has become known as “the categorical approach” to “assesses whether a crime qualifies as a violent felony ‘in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.’” Johnson, 135 S. Ct. at 2557 (quoting Begay v. United States, 128 S. Ct. 1581, 1584 (2008) abrogated by Johnson). This analysis works when applied to the elements of the prior conviction. However, when the categorical approach was applied to the residual clause and the sentencing court had to divine “the kind of conduct that the crime involves in ‘the ordinary case,’ and to judge whether that abstraction presents a serious potential risk of physical injury,” it created a constitutional quandary for federal courts. Id. The Johnson Court held:
The court‘s task goes beyond deciding whether creation of risk is an element of the crime. That is so because, unlike the part of the definition of a violent felony that asks whether the crime ‘has as an element the use . . . of physical force,’ the residual clause asks whether the crime ‘involves conduct’ that presents too much risk of physical injury.
Id. Accordingly, the Supreme Court determined that “[t]he indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges.” The Court therefore struck down the residual
clause as unconstitutional. Id. Even though the Supreme Court struck down the residual clause of the ACCA, it is clear that Johnson “does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act‘s definition of a violent felony.” Johnson, 135 S. Ct. at 2563.
Following Johnson, the Supreme Court examined the same void for vagueness issue in the context of the Immigration and Naturalization Act (“INA”). See Dimaya, 138 S. Ct. 1204. Under the INA, an illegal alien is deportable if that alien is convicted of an “aggravated felony” in the United States. Id., 138 S. Ct. at 1210. Conviction of an “aggravated felony” deprives the alien of being able to petition for discretionary relief, which allows “some deportable aliens to remain in the country.” Id. Thus, any illegal alien that is found to have a conviction for an aggravated felony, is almost certain of removal from the United States. See id., 138 S. Ct. at 1210-11. Germane to the discussion here, one of the definitions of the term “aggravated felony” is found in
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
Striking down this residual clause, the Supreme Court found the same fundamental issues existed that made the ACCA‘s residual clause unconstitutional in Johnson. “Under the [residual] clause, a court focused on neither the ‘real-world facts’ nor the bare ‘statutory elements’ of an offense. Instead, a court was supposed to ‘imagine’ an ‘idealized ordinary case of the crime’—or otherwise put, the court had to identify the ‘kind of conduct the ‘ordinary case’ of a crime involves.’” Dimaya, 138 S. Ct. at 1213-14 (internal citations omitted). These problems also extended to the residual provision in
Rounding out this trilogy of cases, the Supreme Court in Davis also struck down as unconstitutional the residual clause contained in
an offense that is a felony and
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
It is clear from this line of cases that a statute containing a catch-all residual clause that “asks whether the [prior] crime ‘involves conduct’ that presents too much risk of physical injury,” is unconstitutionally vague under the Fourteenth Amendment‘s Due Process Clause, and by implication, the Due Process Clause in the West Virginia Constitution. Johnson 135 S. Ct. at 2557. Conversely, a statute that requires an analysis of whether the prior crime “has as an element,” a violent act, is not deemed unconstitutionally vague. Id.
We now turn to the West Virginia statute at issue in this appeal to determine if it contains the same constitutional infirmities as the federal statutes discussed by the Supreme Court. As noted above, our felon in possession of a firearm statute provides:
(b) . . . [A]ny person:
(1) Who has been convicted in this state or any other jurisdiction of a felony crime of violence against the person of another or of a felony sexual offense; ... (2) and who possesses a firearm as such is defined in section two of this article shall be guilty of a felony.
Under prevailing West Virginia law, the threshold question in our analysis of whether a statute is unconstitutionally vague is whether this statute places a person on fair notice that certain conduct is prohibited. See Syllabus Point 1, State v. Flinn, 158 W. Va. 111, 208 S.E.2d 538 (1974). We are also guided by our rules of statutory construction. “A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.” Syllabus Point 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951). “Where the language of a statute is plain and unambiguous, there is no basis for application of rules of statutory construction; but courts must apply the statute according to the legislative intent plainly expressed therein.” Syllabus Point 1, Dunlap v. State Compensation Director, 149 W. Va. 266, 140 S.E.2d 448 (1965). “Courts always endeavor to give effect to the legislative intent, but a statute that is clear and unambiguous will be applied and not construed.” Syllabus Point 1, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968). “Where the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation.” Syllabus Point 2, Crockett v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 (1970). “We look first to the statute‘s language. If the text, given its plain
meaning, answers the interpretive question, the language must prevail and further inquiry is foreclosed.” Appalachian Power Co. v. State Tax Dep‘t of West Virginia, 195 W. Va. 573, 587, 466 S.E.2d 424, 438 (1995).
Applying the federal standard for vagueness cited above, when we divide our felon in possession of a firearm statute into its component parts we find that it contains an elements clause - “convicted in this state or any other jurisdiction of a felony crime of violence against the person of another” and an enumerated crimes clause - “a felony sexual offense.”
Thus, from a plain reading of this statute, to be convicted of the crime of felon in possession of a firearm, a person must have a firearm in their possession and been previously convicted of either “a felony crime of violence against the person of another” or “a felony sexual offense.”
compel us to find beyond a reasonable doubt that it is unconstitutional. See Syllabus Point 1, State ex rel. Appalachian Power Co. v. Gainer, 149 W. Va. 740, 143 S.E.2d 351 (1965).
Therefore, our statute satisfies both Federal and West Virginia constitutional due process standards because from its plain language, it makes it a crime for a person previously convicted under a statute whose elements constitute a “felony crime of violence against the person of another” to possess a firearm. A person who has been previously convicted of such “felony crime of violence against the person of another” must not possess a firearm or he or she will be subject to criminal penalties. Conversely, by not possessing a firearm, such person can know that he or she will not violate this statute. Therefore, we hold that West Virginia‘s felon in possession of a firearm statute,
Having determined that West Virginia‘s felon in possession of a firearm statute is constitutional, we now look at the elements of Mills’ prior conviction to determine if that prior conviction was for a “felony crime of violence against the person of another.” Because the predicate felony conviction was not for a sexual offense, and the plain language of the operative provisions of
To determine whether the statute of conviction [is a felony crime of violence against the person of another] we are confined to looking at the fact of conviction and the elements required for conviction. United States v. Hill, 799 F.3d 1318, 1322 (11th Cir. 2015); United States v. Braun, 801 F.3d 1301, 1303 (11th Cir. 2015); United States v. Estrella, 758 F.3d 1239, 1249 n.4 (11th Cir. 2014); See also Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 2159, 109 L.Ed.2d 607 (1990). “All that counts are the elements of the statute of conviction,” not the “specific conduct of [a] particular offender.” Mathis v. United States, 579 U.S. 500, 136 S.Ct. 2243, 2251–52, 195 L.Ed.2d 604 (2016) (quotation marks omitted).
875 F.3d at 596–97 (11th Cir. 2017). We note that is exactly what the circuit court did in this instance. It looked at the provisions “of the crime of Wanton Endangerment First Degree, [
Kentucky law divides wanton endangerment into two degrees, first degree and second degree.4 See
(effective January 1, 1975). A person is guilty of wanton endangerment in the first degree when, “under circumstances manifesting extreme indifference to the value of human life, he wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person.”
Only two differences exist between the two degrees of wanton endangerment. One involves mental culpability and the other involves potential for harm. “Extreme wantonness” and “substantial danger of death or serious physical injury” are requirements of the higher degree, whereas “wantonness” and “substantial danger of physical injury” are requirements of the lower degree.
Under Kentucky‘s wanton endangerment in the first degree statute, “‘serious physical injury’ means physical injury which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ.”
IV. CONCLUSION
For the foregoing reasons, we affirm the circuit court‘s denial of the motion to dismiss.
Affirmed.
Notes
With the approval of the court and the consent of the state, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal form the judgment, to review of the adverse determination of any specified pretrial motion. A defendant who prevails on appeal shall be allowed to withdraw the plea.
Although there are three different wanton endangerment statutes in West Virginia, that make certain wanton acts illegal (firearm, destructive devices, fire), Kentucky‘s statutory scheme paints a much broader stroke. Thus, West Virginia‘s jurisprudence on whether its definition of wanton endangerment is a crime of violence is not helpful to our analysis.