IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2020 Term _______________ FILED June 8, 2020 No. 18-1132 released at 3:00 p.m. EDYTHE NASH GAISER, CLERK _______________ SUPREME COURT OF APPEALS OF WEST VIRGINIA
STATE OF WEST VIRGINIA, Respondent
v.
CHRISTOPHER RUSSELL MILLS, Petitioner
____________________________________________________________
Appeal from the Circuit Court of Mingo County The Honorable Miki J. Thompson, Judge Criminal Action No. 18-F-82
AFFIRMED
Submitted: April 14, 2020 Filed: June 8, 2020
Matthew Brummond, Esq. Patrick Morrisey, Esq. Public Defender Services Attorney General Charleston, West Virginia Andrea Nease-Proper, Esq. Counsel for Petitioner Assistant Attorney General Charleston, West Virginia Counsel for Respondent
CHIEF JUSTICE ARMSTEAD delivered the Opinion of the Court. SYLLABUS BY THE COURT
1. “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).
2. “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).
3. “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).
4. “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
i statute and to provide adequate standards for adjudication.” Syllabus Point 1, State v.
Flinn, 158 W. Va. 111, 208 S.E.2d 538 (1974).
5. “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).
6. “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).
7. “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).
8. “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).
ii 9. “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).
10. 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.
iii 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, West Virginia Code § 61-7-7(b) (2016),
is void for vagueness, or, in the alternative, that if West Virginia’s statute is not void, that
the predicate statute which served as the basis for his conviction was not a crime of violence
against the person of another.
For the reasons stated herein, we affirm the circuit court’s denial of Mills’
motion to dismiss.
1 Conditional pleas of guilt are allowed by Rule 11(a)(2) of the West Virginia Rules of Criminal Procedure:
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. 2 See W. Va. Code § 61-7-7(b) (2016). 1 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 West Virginia Code § 61-7-7(b)(2016),
which provides, in pertinent part:
(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.
W. Va. Code § 61-7-7(b) (2016). The predicate “felony crime of violence against the
person of another” which was the nexus to the instant charge of felon in possession of a
firearm was his prior Kentucky conviction for wanton endangerment in the first degree
under the following statute:
(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
2 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.
Ky. Rev. Stat. Ann. § 508.060 (West 1974) (effective January 1, 1975).
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 Rule 12(b)(2) of the West Virginia Rules of Criminal
Procedure. There he raised the same grounds argued in this appeal – the felon in possession
of a firearm statute is unconstitutional as void for vagueness and the predicate Kentucky
conviction is not a crime of violence. Upon hearing, and after reviewing the elements of
the Kentucky statute, the circuit court found that Mills’
[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 under W. Va. Code § 61-7-7(b)(1).
Mills then entered his conditional plea, specifically preserving for appeal “the issue of
whether or not [Ky. Rev. Stat. Ann. §] 508.060, is a crime of violence as contemplated
under W. Va. Code § 61-7-7(b)(1).” The circuit court sentenced Mills to a determinate
term of three years, with credit for time served. This appeal followed.
3 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
4 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 West Virginia Code § 61-7-7(b) satisfy the requirements of due process under
the United States and West Virginia Constitutions and if the predicate Kentucky statute
giving rise to Mills’ charge of felon in possession of a firearm is a “felony crime of violence
against the person of another.” W. Va. Code § 61-7-7(b)(1).
To resolve these questions, we first look at the provisions of the United States
and West Virginia Constitutions at issue. See U.S. CONST. amends. V, XIV and W. Va.
CONST. art. III, § 10. We will examine these provisions through the prism of a series of
recent precedents from the United States Supreme Court, which struck down provisions of
certain federal statutes as unconstitutionally vague. See Johnson v. United States, 135 S.
5 Ct. 2551 (2015); Sessions v. Dimaya, 138 S. Ct. 1204 (2018); United States v. Davis, 139
S. Ct. 2319 (2019). In undertaking this analysis, we must compare the federal statutes
examined by the United States Supreme Court to the West Virginia statute at issue here, to
determine if our statute has similar constitutional infirmities. Compare 18 U.S.C. §
924(e)(2)(B) (2006), 18 U.S.C. § 16 (1984), and 18 U.S.C. § 924(c)(3) (2006),3 with W.
Va. Code § 61-7-7(b). Finally, applying West Virginia’s felon in possession of a firearm
statute, we must determine if the Kentucky statute under which Mills was previously
convicted is a “felony crime of violence against the person of another.” W. Va. Code § 61-
7-7(b)(1).
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.” U.S. CONST. amend V. Interpreting this provision, the United States Supreme
Court has held “that the Government violates this guarantee by taking away someone’s
life, liberty, or property under a criminal law so vague that it fails to give ordinary people
fair notice of the conduct it punishes, or so standardless that it invites arbitrary
enforcement.” Johnson, 135 S. Ct. at 2556. The concept that vagueness is prohibited in
criminal statutes “is a well-recognized requirement, consonant alike with ordinary notions
3 Congress amended the provisions of 18 U.S.C. § 924 in 2018. Because the prior version of this statute is at issue in both Johnson and Davis, we cite to the prior version in this opinion. 6 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.” U.S. CONST. amend XIV.
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.” W. Va. CONST. art. III, § 10. West Virginia has recognized
that to satisfy these basic due process requirements:
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).
7 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 Criminal Act. (“ACCA”). See generally
Johnson, 135 S. Ct. 2551 The ACCA defines a “violent felony” for sentence-enhancing
purposes as:
[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.
18 U.S.C. § 924(e)(2)(B). This statute is divided into three distinct sections. See United
States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012). First, the entirety of 18 U.S.C. § 924
(e)(2)(B)(i) is what is referred to as the “elements clause.” See id. (a court “examines
whether the offense is a violent felony under the elements clause, which provides that the
offense has as an element the use of physical force.”). Next, the first portion of 18 U.S.C.
§ 924(e)(2)(B)(ii) that delineates specific crimes of “burglary, arson, or extortion, [or]
involves the use of explosives,” has been called the “enumerated offenses clause.” See
James v. United States, 127 S. Ct. 1586, 1592 (2007) overruled by Johnson; See also
Owens, 672 F.3d at 968 (a court examines “whether the offense is one of the enumerated
8 crimes.”). Finally, the remaining portion of 18 U.S.C. § 924(e)(2)(B)(ii), “or otherwise
involves conduct that presents a serious potential risk of physical injury to another,” is
known as the “residual clause.” Johnson 135 S. Ct. at 2555-56.
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
9 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 18 U.S.C.
§ 16. Id., 138 S. Ct. at 1211. Under that section of the United States Code, an “aggravated
felony” is defined as a “crime of violence” that is:
(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.
10 18 U.S.C. § 16. Although the statute at issue in Johnson was divided into three parts, the
statute analyzed in Dimaya had two parts – “the elements clause [subsection a] and the
residual clause [subsection b].” Dimaya, 138 S. Ct. at 1211. Like in Johnson, the proper
application of the residual clause was the question raised in Dimaya. Id.
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 18
U.S.C. § 16(b). Id., 138 S. Ct. at 1216. “The result is that § 16(b) produces, just as ACCA’s
residual clause did, ‘more unpredictability and arbitrariness than the Due Process Clause
tolerates.’” Id. (internal citation omitted).
Rounding out this trilogy of cases, the Supreme Court in Davis also struck
down as unconstitutional the residual clause contained in 18 U.S.C. § 924(c)(3) for similar
reasons. See Davis, 139 S. Ct. 2319. That “statute proceeds to define the term ‘crime of
violence’ in two subparts—the first known as the elements clause, and the second the
residual clause.” Davis, 139 S. Ct. at 2324. It specifically provided a sentencing
enhancement for:
11 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.
18 U.S.C. § 924(c)(3). Once again, finding the same problems with this statute as those in
Johnson and Dimaya, the Supreme Court found that the residual clause contained in
subparagraph (B) was unconstitutional as void for vagueness because “imposition of
criminal punishment can’t be made to depend on a judge’s estimation of the degree of risk
posed by a crime’s imagined ‘ordinary case.’” Davis, 139 S. Ct. at 2326.
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:
12 (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.
W. Va. Code § 61-7-7(b).
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
13 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.” W. Va. Code § 61-7-7(b)(1). The phrase “felony crime of violence against the
person of another” relates to the statutory elements of the previously committed crime,
rather than a catch-all term relating to the risk of violent conduct caused by that crime.
This statute clearly does not contain a residual clause.
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.” W. Va. Code § 61-7-7(b)(1). The problems pointed out in
the federal statutes that were struck down by the Supreme Court simply do not exist in the
West Virginia statute. West Virginia’s statute only contains an “elements clause” and an
“enumerated crimes clause.” It does not contain a “residual clause.” This is a clear and
reasonable plain reading of our felon in possession of a firearm statute, which does not
14 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, 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 West Virginia Constitution,
W. Va. CONST. art. III, § 10.
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 West Virginia Code 61-7-7(b)(1) are an “elements
clause,” we must only look to whether the statutory elements of the predicate offense
constitute a “felony crime of violence against the person of another.” See United States v.
15 McNeal, 818 F.3d 141, 151–52 (4th Cir. 2016). In United States v. Davis, 875 F.3d 592
(11th Cir. 2017), the court held:
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. ––––, 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, [Ky. Rev. Stat. Ann. §] 508.060,” and determined that it “is a felony crime of
violence against the person of another, as contemplated under W. Va. Code § 61-7-
7(b)(1).” The circuit court did not look at what Mills did, it only looked at the elements of
Kentucky’s wanton endangerment in the first degree statute to make its determination.
Kentucky law divides wanton endangerment into two degrees, first degree
and second degree.4 See Ky. Rev. Stat. Ann. §§ 508.060 and 508.070 (West 1974)
4 Unlike Kentucky, West Virginia has three statutes that criminalize different wanton acts, rather than differing degrees. West Virginia Code § 61-7-12 (1994) makes “wanton[ly] perform[ing] any act with a firearm which creates a substantial risk of death or serious bodily injury to another,” a crime. “Wantonly perform[ing] any act with a
16 (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.” Ky. Rev. Stat. Ann. § 508.060. Wanton conduct occurs
when a person is “aware of and consciously disregards a substantial and unjustifiable risk
that the result will occur or that the circumstance exists.” Ky. Rev. Stat. Ann. § 501.020(3)
(West 1974) (effective January 1, 1975). In order to constitute wanton conduct, “[t]he risk
must be of such nature and degree that disregard thereof constitutes a gross deviation from
the standard of conduct that a reasonable person would observe in the situation.” Id. The
difference between Kentucky’s degrees of wanton endangerment stem from mental
culpability and potential for harm:
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
destructive device, explosive material or incendiary device which creates substantial risk of death or serious bodily injury,” is also wanton endangerment. W. Va. Code § 61-3E-10 (1996). Finally, “any person who, during the manufacture or production of an illegal controlled substance uses fire, the use of which creates substantial risk of death or serious bodily injury to another due to the use of fire,” also commits the crime of wanton endangerment. W. Va. Code § 61-2-9c (2005).
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.
17 “substantial danger of physical injury” are requirements of the lower degree.
Ky. Rev. Stat. Ann. § 508.060 Ky. Crime Comm’n/LRC COMMENT.
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.” Ky. Rev. Stat. Ann. § 500.080(15)
(West 2017).5 This statutory definition of the elements of the crime of first degree wanton
endangerment answers the question at issue here. To be convicted of first degree wanton
endangerment in Kentucky, Mills either “[c]reated a substantial risk of death,” or his
actions caused or risked causing a number of grievous injuries, any of which constitute
“serious physical injury.” Indeed, the plain language of the elements of the Kentucky crime
of wanton endangerment in the first degree lead to only one conclusion – Mills committed
a violent felony against another person. We conclude that the circuit court was correct and
that a prior felony conviction for wanton endangerment in the first degree under Kentucky
Revised Statutes Annotated § 508.060 is a “crime of violence against the person of
another,” within the meaning of West Virginia Code § 61-7-7(b).
5 The Kentucky General Assembly amended this definition section in 2017, following Mills’ conviction. However, the quoted portion was not changed by that amendment. See Ky. Rev. Stat. Ann. § 500.080 (15) (West 2001). 18 IV. CONCLUSION
For the foregoing reasons, we affirm the circuit court’s denial of the motion
to dismiss.
Affirmed.