*1 Virginia, Plaintiff of West STATE
Below, Appellee, ALLEN, II,
Henry Defendant Theodore
Below, Appellant.
No. 25980. Appeals of
Supreme Court Virginia.
West Sept.
Submitted 17, 1999.
Decided Nov.
Dissenting Opinion of Chief Justice 6, 2000. Jan.
Starcher
147 *4 County
we affirm the decision of the Wood Circuit Court.
I. AND FACTUAL PROCEDURAL HISTORY presented during jury The evidence gives following trial of this matter rise to the During early evening facts. hours of was driv- November defendant Allen White, Parkersburg, Virgi- Bruce M. West ing through automobile streets nia, Attorney Appellant. for the Parkersburg, Virginia. West Officer Fred Boylen, Prosecuting M. Assistant At- Jodie Scott, Parkersburg Department Police torney County, Parkersburg, for Wood West Scott”], recognized Al- [hereinafter “Officer Virginia, Attorney Appellee. for the len, driving unlawfully him to on believed license, suspended driver’s and followed him, part outstanding because of an war- DAVIS, Justice: *5 resulting rant from his Allen’s arrest herein, below, appellant and The defendant nonappearance magistrate Upon in court.1 Allen, Henry II “Al- [hereinafter Theodore intersection, reaching stop an Allen failed to defendant”], appeals from the len” or “the Scott, stop sign, activating at a and Officer July order entered car, lights patrol the and siren on his at- County. the Circuit Court of Wood that tempted stop him. driv- Allen continued order, circuit court to an the sentenced Allen ing alley point until he reached an at which aggregate imprisonment term of in coun- the in he vacated his car and hid another auto- months, ty years, two and four seven parked nearby. mobile days multiple as a result of his misdemeanor Several law enforcement officials eventual- Court, appeal convictions. On to this Allen ly parked Allen in car located the and re- (1) complains erroneously the trial court quested him to exit the vehicle. While Allen jury to instruct the on his theories of refused officers, responding they spotted was to the a (2) coercion; his consecutive duress sen- firearm in the vehicle with Allen and extri- prohibition violate constitutional tences the struggled him from cated the car. Adíen (3) punishment; and unusual trial cruel with the officers and resisted arrest.2 As in court’s failure to consider rehabilitation placing patrol was him in Officer Scott his rendering equal him his sentences denied his car, Allen, handcuffed, forcibly who had been protection rights; his escaped a on foot to friend’s home.3 flight jeopardy; constitute double and following day, trial court its in abused discretion order- November ing consecutively run Parkersburg Department his sentences to instead Police learned concurrently. Having argu- reviewed defendant Allen was at a friend’s home. record, parties, appellate law ments When enforcement officers reached the authorities, however, pertinent dwelling, they cap- and the we find no were unable Therefore, Allen, rulings. already in who error court’s ture had vacated the arresting 1. The record is unclear as to the nature of the 3.Allen that he fled testified officers previously they with during offense charged magistrate which Allen had been because had kicked and beat him they in court. arrest and because threatened beat him transported further once he had been police Following escape, station. author- arresting charged 2. The officers Allen with driv- license, ities searched the that Allen automobile had been ing suspended fleeing law on driver's driving alley. and that he eluding had vacated capture, enforcement officials and obstructing and cocaine, They They para- discovered crack and other an officer. also executed the phernalia illegal drug activity, outstanding resulting warrant from Allen’s fail- indicative of in the magistrate appear in vehicle. ure to court. County grand jury subsequent sighting of A Wood thereafter re- Despite a premises. pursuit, Allen eluded and a brief foot Allen eighteen charg- turned an count indictment by escaping into a wooded area. authorities ing illegal Allen with conduct connection 8-9, Parkersburg with his day, resident activities November 1997.5 Later that same “Mr. Cross”] L. [hereinafter Robert Cross During jury charges, May trial of these on garage of his home. discovered Allen 26-28, 1998, fleeing Allen was convicted reported where- Mr. Cross the defendant’s from an means than in officer other authorities, who surrounded the abouts to (Counts Three, Fourteen, and Fif- vehicle Mr. premises. Allen then commandeered (Counts teen); obstructing an officer Four truck, parked ga- which was Cross’s Thirteen); carrying deadly weapon through rage, by crashing the closed fled (Count Six); driving without a license on a distance, driving garage door. a short After (Counts suspended driver’s license Seven and ran into Allen lost control of the vehicle (Count Sixteen); petit larceny Eight)6; joy- foot, shrubbery. again fled on some He once (Count Eleven)7; riding fleeing from an offi- but, police helicopter, help (Count Twelve); cer in a vehicle and destruc- police finally captured Parkersburg (Counts property placed him tion Seventeen8 and under arrest.4 testimony again breaking entering, COUNT NINE: 4. Trial indicated that Allen vio- arresting struggled § (Repl. with the officers. lation of W. Va.Code 61-3-12 Vol.1997); claimed that he resisted arrest because he was afraid that he would be beaten in accordance entering breaking, COUNT TEN: without allegedly with the threats the officers they made when 61-3-12; § violation W. of Va.Code day Although Allen arrested him the before. grand larceny, COUNT ELEVEN: in violation capture at the time of his that he in- indicated 61-3-13(a) (1994) (Repl.Vol. of W. Va.Code "police tended to accuse the various officers of 1997); brutality," jail reported that authorities at the fleeing TWELVE: COUNT from an officer in a placed holding cell imme- when Allen was diately into a vehicle, in violation of W. Va.Code 61—5— arrest, repeatedly he after his struck *6 17(c); addition, against par- the door. head cell officer, obstructing COUNTTHIRTEEN: an in for amedic testified that Allen refused treatment 61-5-17(a); § violation of W. Va.Code injuries. Allen a friend take his then enlisted fleeing COUNT FOURTEEN: from an officer during pictures his battered face his subse- of vehicle, by any means other than in a in viola- arraignment. quent (b); § tion of W. Va.Code 61—5—17 fleeing COUNT FIFTEEN: from an officer charged in the indictment are as 5. crimes vehicle, any means other than in a in violation follows: 61-5-17(b); § of W. Va.Code possession of a controlled sub- COUNT ONE: deliver, driving suspended COUNT on a SIXTEEN: with the intent to in violation of stance license, 60A-4-401(a) (1983) § § in violation of W. Va.Code 17B-4- (Repl.Vol. W. Va.Code 3(a); 1997); fleeing proper- COUNT TWO: from an officer in a COUNT SEVENTEEN: destruction of vehicle, § ty, in violation of W. Va.Code 61-5- § in violation of W. Va.Code 61-3-30 17(c) (1997) 1997); (Repl.Vol. (1975) 1997); (Repl.Vol. fleeing COUNT THREE: any from an officer property, COUNT EIGHTEEN: destruction of vehicle, other than in a in violation means § in W. Va.Code 61-3-30. violation of (1997) 61-5-17(b) (Repl.Vol. § of W. Va.Code 1997); larceny charge petit 6. The and conviction con- officer, obstructing in vio- COUNT FOUR: an taking cerned Allen’s of Officer Scott’s handcuffs 61-5-17(a) (1997) § W. Va.Code lation of when he fled on November 1997. (Repl.Vol.1997); firearm, brandishing COUNTFIVE: in viola- Although charged grand larceny Count Eleven (1994) (Repl. § W. 61-7-11 tion of Va.Code respect appropriation with to Allen’s of Mr. Vol.1997); truck, joyriding, a Cross’s he was convicted of carrying deadly weapon with- COUNT SIX: grand larceny included offense of the lesser license, § 61- out a in violation of W. Va.Code 61-3-13(a) charge. Compare § W. Va.Code 7-3(a) (1989) 1997); (Repl.Vol. (1994) 1997) (Repl.Vol. (defining grand crime of driving suspended SEVEN: on a li- COUNT cense, (1951) larceny) § W. 17A-8-4 Va.Code 17B-4-3(a) in violation of W. Va.Code 1996) (establishing joyriding). (Repl.Vol. crime of 1996); (1994) (Repl.Vol. larceny, petit COUNT EIGHT: in violation damage 61-3-13(b) (1994) Mr. 8. Count Seventeen involves the (Repl.Vol. 1997); Cross's truck. reviewing challenges findings [i]n the Eighteen9).10 and conclusions of the circuit we By July the circuit order entered two-prong apply a deferential standard imposed and fines for Allen’s sentences review the final order and the review. We jail county months in the convictions: twelve disposition an of dis- ultimate under abuse fleeing of the three and a fine for each $100 standard, circuit and we review the cretion (Counts Three, without a vehicle convictions underlying findings factual under a court’s Fifteen); Fourteen, in six months the Questions clearly standard. erroneous jail two county and a fine for each $500 subject law to a de novo review. are (Counts Four and obstructing convictions Thirteen); county jail months in twelve Ethics Walker West $1,000 carrying Comm’n, for and a fine the unlicensed (Count Six); forty-eight deadly weapon the numerous distinctive er Given Allen, county jail fine for assigned by
hours in the and á will more $200 rors consider driving suspended conjunction li- two on a specific each standards of review (Counts they pertain. cense convictions Seven Six- with to which the issues teen); county jail in the two months $23 petit larceny of III.
in restitution for the Officer (Count Eight); handcuffs six months Scott’s DISCUSSION (Count jail county joyriding in the for Elev- en); and a twelve months Court, appeal assigns to this five On (Count fleeing in a fine vehicle $500 (1) incorrectly trial court refused errors: Twelve); county jail and three months jury proffered his instruction on duress and two destruc- and a fine each of the $500 coercion; his misdemeanor consecutive (Counts property tion of convictions Seven- constitute unconstitutional cruel Eighteen), plus teen and restitution punishment; trial court and unusual property amount of destruction right equal protection him his denied discretion, $5,690.22. In its circuit court by failing law to consider rehabilitation should run determined Allen’s sentences sentences; imposing his con- consecutively, resulting aggregate in an term flight victions for his constitutional violate county jail imprisonment in seven right jeopardy; to be free from double months, days. years, two and four From (5) the trial court abused its discretion sentences, ap- these convictions and consecutive, imposing rather than concur- *7 peals to this Court. rent, We, turn, in will consider sentences. assignment. each
II. A. Refusal of Defendant’s Duress or Coercion Instruction STANDARD OF REVIEW assigns addressing Prior to merits of Al Allen first as error the trial contentions, necessary give to len’s it is ascertain court’s refusal to Defendant’s Instruc appropriate regarding tion 1 or coerc standard review. Gener Number duress ally, reviewing challenges jury ion.11 When to damage garage 9. The to Mr. Cross’s door is the 11.Defendant’s Instruction Number 1 reads: subject Eighteen. of Count general, In an act that would otherwise be a may crime be excused if it was done under duress, compulsion or because there then is no compulsion charged 10. to the other counts in the indict- As intent. The or coercion criminal ment, in the trial court directed a verdict Allen's that will an act excuse otherwise criminal must (breaking entering) favor on Count Nine and and imminent, present, impending, be and (entering breaking), Count Ten without dismiss- well-grounded appre- such as would induce a remaining ing charges. respect With these to bodily death or serious harm if the hension of charges, jury acquitted the defendant of done; criminal act not it must be continuous (possession a Count One controlled substance opportunity and there must be no reasonable deliver), (fleeing an with the intent to Count Two committing escape compulsion to without vehicle), (brandishing officer in a and Count Five injury the crime. The threat of future is not firearm). a enough.
151 Salmons, instructions, 561, 569, State generally we look first to the 203 509 W.Va. 842, State v. LaR- proceedings (quoting trial of the court en- 850 record ock, 294, 316, 613, has that the claimed instructional error 196 W.Va. 635 sure (1996)). reason, rule, preserved appellate general review. properly “[a]s been For this a assigned preservation perceived is cru- ... an This error errors the first time pri- appellate appellate regarded cial looks court will not “[a]n because be persuasiveness marily jurisdic- to the of the trial matter of the trial which court had [rulings might alleged errors] court’s on tion or which reasons have been remedied objected gives regard only due not if Syl. pt. to the factors the trial court to there.” Thomas, 640, opinion superi- part, our inform but also to its W.Va. (1974). Tiffany In re Marie vantage.” words, point or S.E.2d 445 In other S., not “[t]his Court will consider an which error (1996). Thus, preserved properly is not nor the record apparent Syl. pt. on the face of the record.” litigant a “[w]hen deems himself or herself Browning, State v. aggrieved what or he she considers 5.E.2d important an occurrence the course or an ruling Upon
of a trial
erroneous
a trial
review the record of the
ordinarily
object
or
proceedings underlying
he
she
must
appeal,
the instant
any right
nothing
and there or
to com-
then
forfeit
we can locate
indicate that
plain
pedigree
objected
at
later time.
for this
to the
court’s
of his
denial
vintage,
prem-
proffered
rule is
ancient
and it is
In
instruction.
the absence
objection
notion
calling
proper
ruling,
ised on the
an error to
to the trial court’s
oppor-
assignment
court’s
the trial
attention affords an
we find this
of error
been
to have
tunity
problem
irrep-
accordingly
to correct the
before
waived and
decline
con
further
harm occurs.”
arable
sideration of the matter.12
you
peal,
object
assign-
If
evidence in the
with a
case leaves
the state does not
to the
matter,
actually
reasonable doubt that the
acted will-
ment
defendant
of error
briefs the
voluntarily,
fully
coercion,
adequately developed
and not as a result of
and the record is
on
issue,
discretion,
compulsion
just
may,
ex-
duress as
this Court
in its
review
your duty
plained,
assignment
then it is
the defen-
to find
the merits of
of error.
Salmons,
guilty.
dant not
State v.
instruction,
added).
explain
(emphasis
attempted
With this
S.E.2d 842
Neverthe-
less,
jury
repeated
compelling
his
claimed motive for his
no
reason to
find
exercise
flights from the law enforcement officials who
our
in this instance
discretion
to undertake
arrest, i.e.,
sought
capture
alleged
assigned
his
review
error.
alternative,
may
he
fear that
would be beaten when
officers
Court
consider
custody.
supra
give
requested jury
took him into
See
3 and
in-
*8
pulsion
objects
arguments
or coercion that will
an otherwise
before the
the
excuse
thereto
to
imminent,
begun,
any
present,
jury
stating distinctly,
criminal act must be
and
are
as to
instruction,
impending,
given
and such as would
a well-
the
ob-
induce
matter to which he
grounded apprehension
jects
grounds
objection;
of
of
the
death or serious bodi-
and the
his
but
done;
court,
ly
any appellate
may,
the criminal
harm if
act is not
it must
court or
in the interest
continuous;
plain
justice,
giving
be
and there must be no reasonable
notice
error in the
of
escape
opportunity
compulsion
give
to
the
without
an
whether
it
instruction,:
to
or not
refusal
committing
injury
subject
objection.'
the crime. A threat of
an
Rule
future
has been made
of
51,
1,
enough.").
Syllabus
part,
point
Va.
Shia
is not
W. RCP."
Chvasta,
510,
180
644
v.
W.Va.
377 S.E.2d
Despite
inadequately
our reluctance to review
(1988).
errors,
preserved
may,
ap-
the
this Court
under
Resources,
5,
Page v. Columbia Natural
circumstances,
propriate
consider an issue ini-
Inc.,
378,
(em-
(1996)
B. Cruel
Unusual
of
in the
or the extent
the
character
either
Next,
complains that the
defendant Allen
inflicted,
judg-
the
punishment
renders
for his
he received
consecutive sentences
3, Syllabus,
absolutely void.” Point
ment
right
to free
convictions violate
Boles, 148 W.Va.
ex rel. Nicholson v.
State
punishment,
cruel
unusual
dom from
and
(1964)
229[,
.2d
].
134 S.E
576
by
Eighth
the
guaranteed
the
Amendment
III,
and Article
States Constitution13
United
1,
Boles,
v.
point
rel. Boner
Syllabus
State ex
Virginia
of the
Constitution 14.
5
West
Section
(1964),
over
148 W.Va.
is
conten
argument
basis for this
Eden,
grounds by
v.
on other
State
ruled
imprisonment
aggregate
that his
tion
term
gen
Two
153
any person
of two or
is
is convicted
meaning
[w]hen
of a statute
When the
constructions,
offenses,
plain
incapable
pro-
of
is
more
before sentence
construe,
duty
apply,
to
the
it is our
either,
confinement
nounced for
the
Syl.
adopted by
Legislature.
the
language
may
upon the sec-
which he
be sentenced
5,
Virginia Ethics
pt.
part,
v.
Walker West
conviction,
ond,
any subsequent
shall
or
108,
Comm’n,
S.E.2d
previ-
at
of the
commence
the termination
(‘Where
language of a statute is clear
the
confinement, unless,
of
ous term terms
meaning
ambiguity
plain
is
and without
the
of
in the discretion
resorting to
accepted
without
the rules
any subsequent
conviction is or-
second
(internal quotations and
interpretation.”
of
concurrently
court to run
dered
omitted)).
v. Ken
citations
See also DeVane
im-
imprisonment
first
of
with the
term
nedy, 205
W.Va.
S.E.2d
posed.
(1999) (“Where
statutory
language applied
provision
plain,
is
its
should be
terms
Having
statutory
this
previously examined
(citations
and not construed.”
as written
held,
Syllabus point 3 of
language, we
omitted)).
Leverette, 163
Keith v.
W.Va.
(1979),
has been
“[w]hen
defendant
authority
defining
of
crimes,
separate
before sen-
convicted
two
impose punishment
courts to
for misdemean-
either,
court
pronounced
is
for
the trial
tence
crimes,
Legislature employed
the term
discretion,
may,
provide
in its
that the sen-
Generally,
man
“shall.”
“shall” commands a
concurrently,
run
and unless it does
datory
tences
connotation and denotes that the de
directory,
than
scribed behavior is
rather
run consecu-
provide,
so
the sentences will
Matin,
discretionary.
Syl. pt. E.H.
Therefore,
See
tively.”
apparent
it is
that
(1997) (“
‘It
tions.
crime.
Allen was convicted of two
property.
counts of destruction of
The statu-
carrying
third conviction was for
jail
tory
county
maximum
term
confine-
license,
deadly weapon
con-
without
which
up
year.
ment is incarceration for
to one
W.
61-7-3(a)
§
prohibited by
duct is
W. Va.Code
(1975)
§
(Repl.Vol.1997).
61-3-30
Va.Code
(1989)
crime,
(Repl.Vol.1997). For this
property
For
of his
each
two destruction of
statutory
trial
court sentenced Allen
convictions, the trial court sentenced Allen to
imprisonment
maximum term of
for a first
jail.
county
three months in the
im-
After
county jail.
offense:
twelve months
sentences,
posing these discrete
the trial
Additionally,
driving
convicted of
Allen was
court further ordered Allen to
his sen-
serve
license,
suspended
pursuant
on a
to W. Va.
consecutively.
tences
17B-4-3(a)
(1994) (Repl.Vol.1996);
§
Code
each of these two convictions resulted in the
A review of the sentences im
forty-eight
imprisonment
standard
hours’
for
posed by
court for Allen’s numerous
Fifth,
jury
a first offense of this crime.16
convictions
demonstrates
sen
guilty
petit larceny.
found Allen
W. Va.
tenced Allen in accordance with the statutori
61-3-13(b)
(1994)
§
(Repl.Vol.1997)
Code
ly
sentences;
recommended
exercised its dis
permits
imposition
up
for
sentence
cretion
Allen for the crime of
crime;
year
county jail
one
for this
joyriding, for which no definite sentence had
petit
court sentenced Allen to two months for
established;
discretionarily
been
deter
larceny.
mined that Allen would serve such sentences
joyriding,
consecutively,
also was
concurrently. Typi
convicted
and not
recognized by
cally,
§
imposed by
crime
W. Va.Code
17A-8-4
“[sentences
the trial
(1951) (Repl.Vol.1996).
statutory
At the
if
time Allen
within
limits and if not
on
based
joyriding,
applicable
factor,
act
unpermissible
subject
committed his
some
are not
provide specific
did not
appellate
statute
limits for the
review.”
State Good
imprisonment
night,
term
attributable to this
155 limits, long automatically not to conclusion legislatively prescribed so does lead within that court abused its any imper- the lower discretion. judge not consider as the trial did ” Farr, (quoting v. 193 missible factors.’ State a ‘Where the law commits determination 355, 358, 199, 202 judge 456 to a trial and his discretion is W.Va. S.E.2d exer- curiam) (additional omitted))); balance, judicial (per citations cised with the decision 388, 406, should not overruled unless the review- Sugg, v. 193 456 S.E.2d W.Va. actuated, (“As ing by not to court is a desire general proposition, a we 487 result, by reach a but a firm different following crimi- will not disturb a sentence a that an of discretion has conviction abuse range if nal conviction it falls within the been committed.” statute.”). permitted under As what is above, all of im- Enters., demonstrated the sentences Inc. v. Jordache National Union posed by Pa., trial various court Allen’s Pittsburgh, Fire Ins. Co. of convictions, exception misdemeanor with the (quoting Gibson, offense, joyriding were within the stat- Intercity Realty of his Co. (1970) (internal 369, 377,
utory
punishment
limits of
for these crimes.
S.E.2d
omitted)).
conviction, quotations
respect
joyriding
to
and citations
See also
With
Hensley
Virginia Dep’t
Health &
possessed
West
the trial court
the discretion to
Resources,
456, 461,
Human
W.Va.
impose
jail
sentence
this crime as the
(1998) (“
S.E.2d
‘Under the abuse of
provide
specific
applicable statute did not
standard,
will not disturb a
discretion
imprisonment for this
term of
offense. See
circuit
circuit court’s decision unless the
Looking
cur-
W. Va.Code
61-11-17.
judgment
court
a clear error of
makes
joyriding
guidance,
statute for
we note
rent
permissible
exceeds the bounds
choices
statutorily-established
that
sentence
” (quoting
circumstances.’
Gribben v.
this
in the
“confme[ment]
crime
Kirk,
147, 159
jail
regional
than six months.”
[for] not more
(1995))).
17A-8-4(b) (1999) (Supp.1999).
by
imposed
As the six-month sentence
respect
im
to the sentences
With
joyriding conviction
trial court for Allen’s
posed
numerous misdemeanor
for Allen’s
convictions,
substantially
punish-
prop
similar to
current
that
we find
crime,
erly
for this
we find no error with
defendant in accordance
ment
sentenced the
statutorily-prescribed punishments
this sentence.
for such
As for the circuit court’s
crimes.
consecutive,
than
impose
rather
decision
Given
Allen’s sentences were
concurrent, sentences,
find no
we likewise
limits,”
“statutory
proceed
within
we must
juncture,
At
abuse of
this
howev
discretion.
“unpermissible
determine whether some
fac
that,
er,
emphasize
while the
we wish
sentencing
tor”
the court’s
decision.
tainted
Court, had
of this
we been sentenc
members
Syl. pt. Goodnight, 169
See
ing
con
Allen for his numerous misdemeanor
Reiterating
prior
504.
our
observa
victions,
necessarily
not
have ordered
would
tions,
a trial court has broad discretion
consecutively,
to run
this dis
his sentences
imposing sentences for misdemeanor crimes
alone,
agreement, standing
does not necessi
ordering
will
whether
imposed
of the sentences
tate
reversal
consecutively.
concurrently or
run
See W.
Finding
impermissible
no
the trial court.
61-11-17;
Typically,
§§
61-11-21.
Va.Code
sentencing
court’s
factors influenced the trial
grant
to a lower court com
discretion
decision,
ruling.
court’s
we affirm the lower
mands this Court to extend substantial defer
discretionary
Al
challenging
propriety
ence to such
decisions.
of his sen-
tences,
necessarily
aggregate
though this
have
this
Court
Allen contends
presid
disproportionate
had
to the misde-
obtained the same result
we been
sentence is
various convic-
ing
a ease
a lower
meanor classification
over
determined
Legislature’s
specific
disagreement
ruling
tions.19
our mere
with such a
Given
tests,
Cooper,
dispro-
forth two
determine whether a sentence is
in State v.
set
To
crime,
Court,
portionate
corresponding
to its
discretionary authority
through
grant
penal
permit
rule or
statutes that
*12
one,
two,
through
courts
not
but
distinct
cumulative
misdemeanor
penal
applicable to misdemeanor
See,
Hibbard,
statutes
e.g.,
crimes.
v.
231
California
convictions,
61-11-17;
§§
(1991)
see W. Va.Code
Cal.App.3d
Cal.Rptr.
(up
282
351
61-11-21, and the trial court’s adherence to
holding ten-year
imprisonment
term of
judice,
sub
such statutes
the case
we are
defendant’s twelve misdemeanor convictions
to find
reluctant
the cumulative effect
offenses);
drug-related
of alcohol and
traffic
multiple
impermissi-
Allen’s
sentences to be
Fogle,
South Carolina v.
256 S.C.
181
Moreover,
ble.
of the statu-
the refinement
(1971) (interpreting
S.E.2d 483
S.C.Code
standard, whereby
tory
simultaneous
default
(1962) (current
§Ann.
17-553
Ann.
S.C.Code
consecutively,
to
sentences are
be served
re-
(1976) (Law
§
Co-op.
17-25-30
Main Vol.
gardless
underly-
of the classification of the
1985)),
permits
impose
which
courts to
sen
convictions,
ing
properly within
is more
the
punishment
by
tence where
defined
Legislature,
province of
as it is that
statute,
limiting
years
as
to ten
term of
enacting
tribunal which viewed the wisdom of
convictions);
incarceration for misdemeanor
§
stringent
such a
law.
W.
61-
See Va.Code
Tilley Wyoming,
(Wyo.1996)
v.
respond to the rehabilitative
opportuni
deprived of the rehabilitative
been
a detention center.
available
that would otherwise have been
ties
in a state
had
incarcerated
to him
he been
Hersman,
376, 242
facility.
appreciate
While we
correctional
559, 561
matter, in
allegation,
gravity of this
and circumstances
the facts
Under
fac
present posture, is without sufficient
its
ease,
do not find that
of this
give
appropriate
development to
it the
tual
by refusing to
abused its discretion
it
See
and consideration
deserves.
attention
youthful
Of
classify
as a
offender.
Kanawha
Board
Educ.
Whitlow v.
particular
importance
granting
primary
223, 226, 438
County, 190 W.Va.
youthful
status is the
offender
defendant
an
has not
(noting that “when
issue
*14
can be reformed
that he
she
below,
likelihood
underlying that
the facts
been raised
society.
of
See
responsible
into a
member
developed in
a
issue will not have been
refusing
§ 25-4-1.
In
Allen’s
disposition
can
made on
way so that a
be
determined,
Strickler,
based
request,
the trial court
appeal”);
ex rel. Lehman v.
State
811,
882,
809,
prior record and the
884-85
upon the defendant’s
329 S.E.2d
W.Va.
investigation report,
(deferring ruling
prison
on
of
pre-sentence
alter
issue
given “fully developed factual rec
appropriate.
conditions
was not
native
case).
companion
in
In the
ord” thereof
long history
of
Allen] has
[defendant
He
type of
regarding the
absence of information
authorities,
comply with
and he
failing to
present place of
faces in his
conditions Allen
is,
opinion,
unlikely to
the Court’s
county jail
compared
as
incarceration
is,
fact, likely
again commit crimes. He
nature of rehabilitation available
to,
history,
certainly
past
based on his
simply impossible
penitentiary prisoners, it is
found,
requires, to
cannot be
as the statute
assign
the merits of this
for us
evaluate
probation or
alternative
be
candidate
Accordingly,
fur
of
we decline
ment
error.26
sentencing....
review,
instant
within the confines of the
ther
probation
report of the
So based on the
appeal,
request
of
that he be afforded
officer,
safety
of
and interests
[the]
opportunities while he is incar
rehabilitative
opinion
community, it is the
of the
this
county jail.
cerated
deny probation
must
that the Court
Court
form of alternative sentence.
other
Jeopardy
D. Double
Furthermore,
Al-
argues
of
that the double
Given
court’s consideration
Fifth
history
jeopardy protections
and its
that Allen
afforded
prior
len’s
belief
law,25
again
we do not find Amendment
the United States Constitu-
would
violate the
III,
tion27and Article
Section 5
the West
circuit court abused its discretion
that the
1,
fact,
Syllabus point
Pingley
ex rel.
prophecy
States.’
State
In
the trial court’s
Coiner,
591,
when,
"again
rang
v.
155 W.Va.
true
would
commit crimes”
Werner,
1,
(1972).”
1998,
Syl. pt.
escaped
State ex rel. K.W.v.
the defendant
in November of
192,
(1978).
161 W.Va.
tempting to him or her.” Contrari- arrest Applying a statute which different wise, 61-5-17(c), § involves the use of which governing convictions of than one Allen’s vehicle, requirement that “the includes the Ann. flight, see Fla. Stat. nonvehicular given visual or audible officer has a clear (1995),29 § the court determined stop,” 316.1935 signal directing person to instead charged separate could be with requiring knowledge or that an that Mitchell belief then, Facially, flight commensurate attempting counts of vehicular officer is arrest. directive, knowing compliance flight applied by with the 29. The vehicular statute willful- officer, (1995), attempt ly elude the and Stat. Ann. 316.1935 to flee in an to Mitchell Fla. shall, states, part: pertinent person subsection who violates this conviction, by punished imprisonment upon operator It is unlawful for the county jail period for a not to exceed vehicle, in the having knowledge that he or she has $1,000, by year, by fine not to exceed duly by stop been directed to such vehicle officer, imprisonment. willfully fine and both such enforcement authorized law Mitchell, added). (Emphasis 719 So.2d stop compliance See also vehicle in refuse or fail to or, having stopped in at 1247-48. with such directive door, declining stop for the garage officials from closed law enforcement the various him, contrast, ap- pursuing and By instant officials law enforcement whom he fled. all of flight, leaving in some shrub- peal nonvehieular Mr. Cross’s vehicle involves rest, exclusively in occurred bery, activities truck had come Allen’s which the Thus, adopt foot, County. we decline again Wood his adventure Allen resumed upon distinctions relied eventually semantical into cus- whereupon taken he was Appeal, and remain Florida District Court intervening cir- tody. numerous Given the attempts to secure a unpersuaded by Allen’s penetrating flight his from the cumstances flight. single for nonvehieular conviction sought cap- officials who his law enforcement arrest, multiple convictions ture and Allen’s linguistic rejecting Allen’s In addition to flight do not violate the for nonvehieular factu- argument, observe further we jeopardy. prohibition constitutional of double sufficiently support al circumstances herein hereby ruling, In accordance with of nonvehieular convictions Allen’s 61-5-17(b) (1997) hold that W. Va.Code key distinguishing flight. importance Of multiple si- (Repl.Vol.1997) prohibit does not episode continuous conduct from one convictions for the offense multaneous intervening occur- flight are numerous when, flight during one extend- escape culminating nonvehieular infiltrating his rences flight, commits episode of a defendant capture. nonvehieular ed in his ultimate nature, criminal intervening acts of a flight charge contained Count Three Indictment, sepa- guilty, flight are and of he was found that the various instances which very beginning of Allen’s and distinct occurrences.30 occurred at the rate 8,1997, freedom, quest for on November challenges also the suffi departure from his vehicle consisted of his supporting flight his ciency of the evidence in an ac- subsequent and his concealment convictions. Following quaintance’s parked car. his dis- arrest, covery attempted Allen continued appellate an court when “The function of journey.
his
sufficiency of
reviewing the
the evidence
support
criminal conviction is to examine
day,
The next
November
admitted at trial to determine
the evidence
pursued
again
once
was discovered
evidence, believed,
if
is suffi-
whether such
by local law
officials. His refus
enforcement
person of
a reasonable
cient to convince
acquiesce
capture
in his
resulted
al to
beyond a
guilt
reasonable
the defendant’s
flight pursuant to
conviction of nonvehieular
Thus,
inquiry is
the relevant
doubt.
.
final
of the Indictment. The
Count Fifteen
whether,
viewing
in the
the evidence
after
flight
with which Allen
count
nonvehieular
prosecution,
light most favorable
ultimately
charged and of which he was
was
*17
fact could have found
Fourteen,
any rational trier of
convicted,
Count
arose when
proved
crime
Cross,
elements
the essential
attempted
procure
from Mr.
with
Syllabus
beyond a
doubt.”
acquainted,
reasonable
whom was not
an automobile
he
Guthrie,
657,
1,
194
custody.
point
v.
W.Va.
escape
in
from
After
State
to aid
(1995).
through a
suggests presented that the at evidence lant’s brief shall follow the quite adequate same form as the support was Allen’s multi 3(c) (“A petition appeal.”) peti- and Rule ple flight. Having convictions reviewed appeal tion evidence, following shall state the ...: we are not left with im assignments 3. upon of error on pression relied there remains reasonable appeal - [and] Points and guilt as to authorities doubt Allen’s of these crimes nor law....”); upon relied [and] discussion of do find that his convictions tar were LaRock, State v. by “misapprehension, passion nished (1996) (“Although prejudice.” we liberal- part, id. There ly fore, determining pre- construe briefs issues flight we conclude that convic review, sented for issues which tions do not are principles offend constitutional raised, only and those mentioned passing jeopardy, of double and we affirm the trial supported pertinent [which] are not rulings regard. court’s in this authority, are not appeal.” considered on added) (citation omitted)). (emphasis E. Trial Court’s Discretion Sentence See Concurrently Consecutively also Ohio Cellular Partnership RSA Ltd. *18 Virginia, Board Pub. Works West lastly asserts that the circuit 424 n. 730 n. by determining court abused its discretion (1996) (refusing appeal address issue on multiple that his sentences should run con briefed). adequately had not been secutively concurrently. rather than statute, governing 61-11-21 IV. (1923)(Repl.Vol.1997),commands: CONCLUSION any person [w]hen is convicted of two or offenses, pro- more before Finding sentence no error with the trial court’s either, nounced for the confinement refusal Allen’s duress or coercion instruc- upon which he be sentenced the sec- tion or with court’s in the to consecutive sentences defendant jail con- for his misdemeanor
victions, of the Circuit we affirm the decision County.
Court of Wood
Affirmed. MAYNARD concurs.
Justice RISOVICH, sitting by temporary
Judge
assignment. participate. did not
Justice SCOTT
STARCHER, Justice, dissenting: Chief
(Filed 2000) Jan.
I defendant was clear- dissent because this subject improper “piling on” of
ly the charges. Why? acted
criminal Because he
contemptuously police. toward I also years the sentence of 7
dissent because system contrary to our law’s of incarcera-
tion, serving long go people sentences where op- prisons where there are rehabilitative
portunities. I would the defendant’s reverse requir- and remand with an order imposition
ing the of concurrent sentences.
STATE of West ex rel. CORPORATION,
DEN AND ROBESON corporation; and Bob
a New York Hut Hutton, Buildings,
ton and Gene d/b/a Inc., Petitioners, HILL, Jr., George
The Honorable W.
Judge of the Circuit Court of Wood
County; Fellowship Baptist
Church, By Trustees, Through Its Gainer, III, Clayton Bond and Ker-
Glen Polan, Respondents.
mit
No. 26837.
Supreme Appeals Court of Virginia.
West 11, 2000.
Submitted Jan. July
Decided notes trial court’s refusal to Tanner, Syl. struction, pt. proffering party See also State v. if the even does (1982) ("In general, object ruling, S.E.2d 160 an act to the court's where such refusal plain that would otherwise be a crime be excused duress, constitutes error. " compulsion may assign party giving if done under it was be- ‘No as error the give then cause there is no criminal intent. The com- an he refusal instruction unless