STATE OF WEST VIRGINIA, Plaintiff Below, Respondent v. RONALD EUGENE WARD, Defendant Below, Petitioner
No. 19-1046
Supreme Court of Appeals of West Virginia
May 14, 2021
January 2021 Term; Appeal from the Circuit Court of Summers County; Honorable Robert Irons, Judge; Criminal Action No. CC-45-2019-F-37
AFFIRMED
Submitted: April 13, 2021
Filed: May 14, 2021
Scott A. Ash, Esq.
Athens, West Virginia
Attorney for Petitioner
Patrick Morrisey, Esq.
Attorney General
Mary Beth Niday, Esq.
Assistant Attorney General
Andrea Nease Proper, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for Respondent
JUSTICE HUTCHISON delivered the Opinion
SYLLABUS BY THE COURT
- “The West Virginia legislature may, through the valid exercise of its police power, reasonably regulate the right of a person to keep and bear arms in order to promote the health, safety and welfare of all citizens of this State, provided that the restrictions or regulations imposed do not frustrate the constitutional freedoms guaranteed by article III, section 22 of the West Virginia Constitution, known as the ‘Right to Keep and Bear Arms Amendment.‘” Syl. Pt. 4, State ex rel. City of Princeton v. Buckner, 180 W. Va. 457, 377 S.E.2d 139 (1988).
- “Where the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation.” Syl. Pt. 2, Crockett v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 (1970).
- “A statute, or an administrative rule, may not, under the guise of ‘interpretation,’ be modified, revised, amended or rewritten.” Syl. Pt. 1, Consumer Advocate Div. of Pub. Serv. Com‘n v. Pub. Serv. Com‘n, 182 W. Va. 152, 386 S.E.2d 650 (1989).
- “It is not for this Court arbitrarily to read into a statute that which it does not say. Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted.” Syl. Pt. 11, Brooke B. v. Ray, 230 W. Va. 355, 738 S.E.2d 21 (2013).
- The plain language of
West Virginia Code § 61-7-7(b)(2) (2016) prohibits a person previously convicted of a felony controlled substance offense in any jurisdiction from possessing a firearm in West Virginia. Therefore, an out-of-state felony controlled substance conviction may serve as the predicate felony conviction necessary for a charged violation ofWest Virginia Code § 61-7-7(b)(2) regardless of the classification of the crime in this State.
HUTCHISON, Justice:
The petitioner, Ronald Eugene Ward, appeals the November 4, 2019, order of the Circuit Court of Summers County sentencing
for a charged violation of
I. Facts and Procedural Background
On November 26, 2018, the petitioner was stopped by a Summers County deputy while he was driving a vehicle near Talcott, West Virginia. The deputy knew the petitioner‘s driver‘s license had been revoked for driving under the influence. During the traffic stop, the deputy found a firearm and what appeared to be a small amount of methamphetamine inside the vehicle. A passenger indicated that the firearm belonged to the petitioner. Thereafter, the deputy discovered that the petitioner had been convicted of a felony in Indiana in 2005.
In March 2019, the petitioner was indicted by a Summers County grand jury and charged with a violation of
predicate felony for a charged violation of
The petitioner was tried on October 8, 2019 and convicted of all charges arising out of the traffic stop. The petitioner then filed a motion for acquittal, again arguing that his Indiana conviction could not serve as the predicate felony conviction for a charged violation of
The petitioner‘s sentencing hearing was held on November 1, 2019. At that hearing, the circuit court denied the petitioner‘s motion for acquittal and sentenced him to a determinate term of five years imprisonment for his conviction of possession of a firearm
by a prohibited person and a determinate term of five years imprisonment under the Habitual Offender Act.5 This appeal followed.
II. Standard of Review
The sole issue in this case is whether the circuit court erred by finding that the petitioner‘s 2005 Indiana conviction could serve as the predicate felony conviction for the charge that petitioner violated
III. Discussion
In this case, there is no dispute that the petitioner was convicted of a felony in Indiana in 2005. Likewise, there is no dispute that the petitioner‘s Indiana offense—possession of methamphetamine—would have been considered a misdemeanor had it occurred in West Virginia.6 As such, the petitioner argues in this appeal that his Indiana
conviction cannot serve as the predicate felony conviction necessary for a charged violation of
Whether the conviction of a crime outside of West Virginia may be the basis for application of the West Virginia Habitual Criminal Statute,
W.Va.Code, 61-11-18 ,-19 [1943] , depends upon the classification of that crime in this State.
The petitioner notes that this Court has applied the same holding in the context of enhanced sentences for domestic violence and driving under the influence.7 Thus, the petitioner argues that trial courts should look at the conduct involved in the out-of-state offense rather than whether the other jurisdiction labeled the offense as a felony when determining
whether there is a prior felony conviction to support a charged violation of
Conversely, the State argues that
[i]f the Legislature had desired to exclude from the provisions of Section 61-7-7(c) those individuals whose convictions had been pardoned, it could have easily done so . . . Because the Legislature chose not to exclude pardoned convictions from the scope of Section 61-7-7, we may not do so now.8
Perito, 215 W. Va. at 183-84, 597 S.E.2d at 316-17 (footnote added). Thus, the State argues that if the Legislature intended for trial courts to consider the nature of out-of-state offenses under West Virginia law for purposes of a conviction under
This Court has long recognized that
[t]he West Virginia legislature may, through the valid exercise of its police power, reasonably regulate the right of a person to keep and bear arms in order to promote the health, safety and welfare of all citizens of this State, provided that the restrictions or regulations imposed do not frustrate the constitutional freedoms guaranteed by article III, section 22 of the West Virginia Constitution, known as the “Right to Keep and Bear Arms Amendment.”
Syl. Pt. 4, State ex rel. City of Princeton v. Buckner, 180 W. Va. 457, 377 S.E.2d 139 (1988).
observed in Perito, “[t]he obvious purpose of
The specific provision at issue here,
Given the plain and unambiguous statutory language, there is no basis to read into
revised, amended or rewritten.” Syl. Pt. 1, Consumer Advocate Div. of Pub. Serv. Com‘n v. Pub. Serv. Com‘n, 182 W. Va. 152, 386 S.E.2d 650 (1989). Moreover, “[i]t is not for this Court arbitrarily to read into a statute that which it does not say. Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted.” Syl. Pt. 11, Brooke B. v. Ray, 230 W. Va. 355, 738 S.E.2d 21 (2013).
We, therefore, reject the petitioner‘s contention that our precedent pertaining to the consideration of out-of-state convictions for recidivist purposes should be applied to his case. Although recidivist statutes also serve to protect the public, “[t]he primary purpose of the recidivist statute[s] is to deter persons who have been convicted and sentenced previously on penitentiary offenses, from committing subsequent felony offenses.” Justice, 177 W.Va. at 55, 350 S.E.2d at 567. In contrast, the focus of
To achieve its statutory purpose, the Legislature has determined that a prior felony controlled substance conviction coupled with the possession of a firearm is sufficient to trigger a violation of
We also reject the petitioner‘s equal protection challenge, which he asserted for the first time in his reply brief. Specifically, the petitioner argues that “[t]he State urges a classification based on the geography of the crime” and that “Indiana possessors of a controlled substance cannot be presumed to be more dangerous than West Virginia possessors of a controlled substance.” The petitioner cites no legal authority in support of his argument, and the record reflects that the issue was not raised during the proceedings below. Our general rule is that nonjurisdictional questions raised for the first time on appeal will not be considered. See Syl. Pt. 2, Sands v. Security Trust Co., 143 W. Va. 522, 102 S.E.2d 733 (1958) (“This Court will not pass on a nonjurisdictional question which has not been decided by the trial court in the first instance.“). Nonetheless, “[a] constitutional issue that was not properly preserved at the trial court level may, in the
discretion of this Court, be addressed on appeal when the constitutional issue is the controlling issue in the resolution of the case.” Syl. Pt. 2, Louk v. Cormier, 218 W. Va. 81, 622 S.E.2d 788 (2005). Upon review, we do not find the petitioner‘s argument dispositive, nor does it require a prolonged analysis.
“[E]qual protection means the State cannot treat similarly situated people differently unless circumstances justify the disparate treatment.” Kyriazis v. U. of West Virginia, 192 W. Va. 60, 67, 450 S.E.2d 649, 656 (1994). Equal protection challenges, like that asserted by the petitioner herein, have been made by defendants with respect to the federal counterpart of
definitions.” 673 F.Supp.2d at 1355 (quotations omitted). Rejecting the defendant‘s argument, the district court explained that
several courts have applied an intermediate level of scrutiny to equal protection challenges to
§ 922(g)(1) and found that prohibiting felons from possessing firearms is substantially related to the important governmental objective of public safety and is therefore constitutional. See, e.g., [U.S. v.] Moore, 2009 WL 1033363, at *4, 2009 U.S. Dist. LEXIS 32953, at *10 (concluding, with respect to “Equal Protection Clause” challenge, that§ 922(g)(1) withstands intermediate scrutiny and quoting, among other cases, the Supreme Court‘s decisions in United States v. Salerno, 481 U.S. 739, 750, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (finding the Government‘s interest in preventing crime as not just important but compelling), and Lewis v. United States, 445 U.S. 55, 66, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980) (noting that in enacting§ 922(g)(1) , “Congress focused on the nexus between violent crime and the possession of a firearm by any person with a criminal record“)); [United States v.] Schultz, 2009 U.S. Dist. LEXIS 234, at *15-16 (“Public safety is an important governmental objective“); [United States v.] Radencich, 2009 WL 127648, at *5, 2009 U.S. Dist. LEXIS 3692, at *13-14 (citing Schultz); see also United States v. Bledsoe, No. SA-08-CR-13(2)-XR, 2008 WL 3538717, at *4, 2008 U.S. Dist. LEXIS 60522, at *11 (W.D.Tex. Aug. 8, 2008) (finding that “public safety concerns . . . constitute important governmental objectives and, furthermore, that the statutes challenged by Defendant are substantially related to addressing those ends“).
673 F.Supp.2d at 1355 (footnote omitted); see also United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010) (felon in possession statute does not violate equal protection right under due process clause, even though status of felon determined differently from state to state).
Our Legislature has decided that crimes involving controlled substances that are serious enough to be classified as felonies in the jurisdictions where they are committed warrant depriving persons committing those offenses from possessing a firearm in West Virginia. We find this restriction permissible even under heightened scrutiny because it is substantially related to the important governmental interest of preventing crime and ensuring the public‘s safety. Thus, we find no merit to the petitioner‘s equal protection argument.
Based on all the above, we now hold that the plain language of
and his subsequent motion for acquittal. Accordingly, we affirm the petitioner‘s conviction and sentence.
IV. Conclusion
For the foregoing reasons, the November 4, 2019, order of the Circuit Court of Summers County sentencing the petitioner to a determinate term of ten years imprisonment is affirmed.
Affirmed.
Notes
[w]ho has been convicted in this state or any other jurisdiction of a felony controlled substance offense involving a Schedule I controlled substance other than marijuana, a Schedule II or a Schedule III controlled substance as such are defined in sections two hundred four [§ 60A-2-204], two hundred five [§ 60A-2-205] and two hundred six [§ 60A-2-206], article two, chapter sixty-a of this code and who possesses a firearm as such is defined in section two of this article shall be guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility for not more than five years or fined not more than $5,000, or both.