State v. Oxier
369 S.E.2d 866
W. Va.
1988
Check Treatment

*1 Virginia STATE West

James M. OXIER.

No. 17696. Hugh Kerens, Rogers, for James M. Oxi- er. Appeals Court of Russell, Gen., J. Virginia. Bradley Atty. West Asst. Charleston, State. March 1988.

Dissenting Opinion June PER CURIAM: Rehearing July Denied This is appeal an James an Oxier from County

order of the Court Circuit of Grant sentencing him to life in the peniten- tiary as a habitual criminal. He claims that the of a life sentence in his case violates the proportionality principle contained in Article Section 5 of the West Constitution and in the Eighth Amendment of the United States record, reviewing After Constitution. disagrees, judg- affirms the County. ment of the Circuit of Grant In May, defendant broke into Head, store Valley Virginia, West cigars, cigarettes, stole and change valued approximately He was $65.00. not arm- time, ed at and no present. one was activity For that he was subsequently con- entering. victed of May, 1977, In the defendant stole $312.00 copper worth of wire from the Chessie System Later in year Railroad. the same he stole á canoe worth $455.00 from unoccupied residence. For the first crime he was larceny. convicted For stealing the canoe was convicted breaking and 13, 1983, On December event which triggered appeal present occurred. morning early hours of day defendant, persons, several other Job, broke into store located at During Virginia. the break-in an alarm storekeeper sounded and alerted family, who armed members of his them- selves to the store. As and went store, approached the someone from inside ensued, shot shoot-out at them. during the defendant was the shoot-out right leg. severely He was wounded *2 432 tried, priate applied convicted of when enhanced sentences are apprehended, and

later statute, breaking under and recidivist Code, W.Va. 61-11-18. The Court indicated conviction, the Following the defendant’s per that not while the statute itself is se County, pur- attorney of prosecuting Grant unconstitutional, application in a par of it W.Va.Code, 61- of provisions to the suant if may ticular case the unconstitutional indicat- 11-18, filed a recidivist information imposed disproportionate sentence is so to been convicted ing that the defendant had underlying the constitute offenses as to 1966, entering and that in breaking and punishment. cruel and unusual In deter again had convicted been mining dispropor the sentence is The information also entering and in 1978. tionate, had been con- the should look at a number the defendant indicated that larceny including grand in 1979. recidi- of the of the victed factors nature de conducted, at the conclu- Leverette, trial and vist was fendant’s offenses. Martin v. that the Coiner, sion of the trial was determined (4th supra, F.2d 136 Hart v. 483 of the defendant had been convicted denied, 983, Cir.1973), 94 cert. 415 U.S. He and that he was a recidivist. crimes 1577, (1974). 39 L.Ed.2d S.Ct. 881 in to life the consequently was sentenced Vance, supra, In v. the Court ad State appealed He his penitentiary. question appli dressed the whether the 760, Oxier, in W.Va. 338 State v. 175 statute, cation of the habitual criminal (1985), it for 360 this Court reversed S.E.2d 61-11-18, Code, party to a convicted W.Va. remanded the errors. The Court also trial constitutes cruel for a trial. case new punishment the and unusual under State or conducted, and the The new trial was Federal The Court Constitutions. exam again He was convicted. defendant was involving ined two defendants con cases issue, and after again tried on the recidivist victed of crimes similar to those which recidivist, again he was being found to be present proceeding in the defendant the penitentiary. sentenced to life case, In was convicted. the first v. Griffin present proceeding In the the defendant Warden, (4th Cir.1975), F.2d 756 cert. 517 imposition of a life sentence claims that 990, 402, denied, 96 S.Ct. 46 423 entering, upon a conviction (1975),the was L.Ed.2d 308 defendant con following the same prior convictions for burglary robbery. and armed victed larceny, violates Ar- and for offense pres in that the court found Griffin III, 5 of the West ticle Section potentiality ence of the of violence Eighth Amendment the Constitution and person in the crimes committed specifi- He Constitution. the United States sup factor would defendant was a which imposed cally argues that the sentence proceed in a port a proportionate him was burglary also that ing. The court found degree of his offense. character and robbery potentiality carried the and armed Vance, syllabus 8 of v. 164 point In case, In the second Rummel of violence. (1980), S.E.2d 423 W.Va. 262 Cir.1978), (5th Estelle, F.2d 651 cert. v. 587 that: Court stated 441 U.S. 99 S.Ct. granted, Virgi- Article of the West Section (1979), both the Fifth Circuit L.Ed.2d 1064 Constitution, the cruel nia which contains Supreme Court of the United and the counterpart punishment and unusual to reverse a recidivist life refused States of the United Amendment ground that it was cruel sentence on the Constitution, express state- States has an underlying of inhuman where the proportionality principle: ment of the obtaining money under false fenses were proportioned shall be “Penalties card, of a credit fraudulent use pretenses, degree the offence.” character and In forged check. State v. passing a Vance, underlying convic defendant’s Leverette, In 161 W.Va. Martin felony breaking and enter- tions three (1978), recog- also were the Court the life to reverse refused appro- ings. The Court proportionality analysis nized that doing, ality Ill, said: conviction. so contained art. W.Va.Const. 5.§ therefore, I, respectfully “We decline dissent. apply proportionality case, present doctrine since we be- question W.Va.Code, There is no 61- lieve crime of 11-18, authorizes the of a life *3 potentiality the dan- carries violence and upon felony sentence a third conviction. ger property.” to life as well as to v. State However, recognized as we in State v. Vance, 233, supra 164 W.Va. at 262 S.E.2d Vance, 216, 164 W.Va. 262 S.E.2d 423 (1980), imposed by a life sentence this stat- subject ute is propor- to our constitutional presently the case under considera- tionality principle: pro- “Penalties shall be tion, the was previously defendant convict- portioned degree to the and character grand larceny ed as well as Ill, the offence.” art. W.Va.Const. 5.§ charged was and He with and principle fully This developed was more in entering convicted of and immedi- Bordenkircher, v. Wanstreet 166 W.Va. ately prior to his recidivist The conviction. 523, (1981), where we set only facts the last crime show that it not Syllabus out this in test Point 5: potentiality the against carried violence determining given “In a sen- persons, actually it a but that involved proportionality princi- tence the violates shoot-out. ple in found Article 5 of Section the clearly Rather our law that indicates Virginia Constitution, West consideration involving potentiality crimes the of violence offense, given to the nature of the the in category supporting fall the of those the legislative purpose punish- the behind sentence re- of a life under the ment, comparison punishment a of the cidivist statute. In view of the fact that with would in what be inflicted other crime poten- the jurisdictions, comparison and a with oth- life, tially danger involves violence to jurisdiction.” er offenses within the same that as well as the fact there was actual language The majority upon seizes from in persons crime violence last we stated “the crime Vance where that charged, which the defendant was with potential- carries principles under the Court concludes that ity danger life as of violence and to well as Vance, in v. supra, enunciated 233, property.” 164 262 S.E.2d W.Va. in imposing court did err life trial a This proportionality at 432. skews the sentence the defendant under which, analysis only in around one factor statute. recidivist The Helm, view of v. 463 U.S. 103 Solem also believes that the defendant has failed (1983), 77 is of S.Ct. L.Ed.2d 637 indi- any show other factor which would validity.1 dubious imposition of the cate that parallel. offers a valuable factual Helm improper. was of third- Mr. Helm was thrice convicted judgement The of the Circuit Court of degree burglary, felony a South Da- under is, therefore, County affirmed. Grant prior kota Other felonies included law. larceny, money by false obtaining Affirmed. pretenses, driving while third-offense His last for which intoxicated. MILLER, Justice, dissenting: sought, was for an enhanced sentence was by majority The to- decision reached After he uttering “no account” check. a is, believe, recidivist, day step I recent Helm adjudged out with a Mr. was was Eighth imprisonment pos- without case and fails to life Amendment law sentenced parole. sibility of express guarantee proportion- follow proportionality principle under the proportionali- It must that our view of the be remembered cases, Wanstreet, ty e.g., decid- Clause of the Vance and were Unusual Punishment Cruel and Estelle, time ed under our own Constitution and at a 445 See Rummel Amendment. appeared when Su- (1980). that United States S.Ct. 63 L.Ed.2d taking extremely preme Court was restrictive analysis Wanstreet, der concluded that the our settled such require- violated the recidivist life sentence a result cannot be sustained. implicit in the proportionality ment of proportionality states Wanstreet that It Eighth Amendment. stressed that de- of a life to be deter- sentence is a recidivist cannot be fendant’s status as (1) points: mined two reference abstract,” proceeded “considered felony, (2) prior third felonies felony While to review Mr. Helm’s record. support sen- which enhancement of the felonies, all of his convictions were felony tence. Mr. con- Oxier’s most recent “relatively they were minor” country arose viction out a break-in at Fur- property involved of minimal value. particular importance propor- Of store. ther, “non- each crime was deemed *4 tionality purposes are circumstances solely against directed violent” and was and, if that crime. Mr. was unarmed Oxier 296-97, property. 463 at 103 S.Ct. at believed, attempted his testimony is 3013, at 653. L.Ed.2d committing his dissuade confederates from important Helm teaches two lessons. Further, crime. it was Mr. Oxier First, as a defendant cannot be sentenced a party not an innocent third who sustained simply has con- because he been fray. injury prior victed of “felonies.” The point is Wanstreet’s second reference Amendment, minimum, requires a prior felony Each defendant’s record. underly- inquiry into the seriousness of the a of Mr. Oxier’s convictions was for ing felony convictions. As Helm illus- above, property and, crime as discussed trates, a crime is de- the seriousness of “relatively was nonviolent. Each was also pendent may be upon whether character- minor,” phrase a from Helm. borrow “nonviolent,” as or ized “violent” May, larceny copper The wire involved directed the criminal conduct was property valued at a mere sto- $312. person property. or entering inci- len in the two Second, entering is not a cigarettes included valued at $65 dents per a charac- se crime of violence. Helm occupied not a canoe. The structures were third-degree as burglary a nonviol- terized entry. at the time of each these significant, This for South ent crime. is incidents, was convicted and the defendant third-degree burglary statute was Dakota’s served time. While one cannot condone night- quite broad and even embraced the crimes, perceive these it is difficult to dwelling.2 entry a time a demonstrate Mr. Oxier to be either statute, contrast, by dangerous or criminal. violent entry building other limited to the of a is dwelling specified or of vehicles and than a penalty is maximum presumption that break- vessels.3 Vance’s Virginia prescribed by West law. Histori- cannot, ing and is a violent crime cally, penalty has been reserved therefore, squared with Helm. specific intent crimes which involve vio- to life. Mr. lence or reckless indifference case, Helm, presents a like situation This any criminal record does not exhibit Oxier’s defendant was sentenced life in which a I submit that discernible trend violence. any without imprisonment as a recidivist our purpose recid- felony. Un- it does further prior conviction for a violent (re- (1967) dwelling adjoining or thereto S.D.Comp.Laws house outhouse § Ann. 22-32-8 therewith, 1976) any provided: person occupied "A pealed any dwelling into or railroad or trac- or nighttime steam, car, intent electricity house in the with or propelled tion circum- otherwise, a crime but under such to commit any or or other boat or steamboat burglary in the first do not constitute stances as vessel, jurisdiction any county in within degree." burglary degree, guilty in the third State, felony or intent to commit with guilty any larceny, he shall be deemed W.Va.Code, 61-3-12, part: provides in and, felony, con- shall be shall, time, any any person break and “If penitentiary not than one nor less fined enter, breaking, any without or shall enter years." than ten more storehouse, office, warehouse, banking shop, house, building, any than a or other or house statute, system, penal or of our ivist I dissent. penalty to Mr. Oxier.

apply that of West

STATE

Keith ARMSTRONG.

No. 17614. Appeals *5 Virginia.

April