State v. Wyne

460 S.E.2d 450, 194 W. Va. 315, 1995 W. Va. LEXIS 126
CourtWest Virginia Supreme Court
DecidedJuly 11, 1995
DocketNo. 22346
StatusPublished
Cited by4 cases

This text of 460 S.E.2d 450 (State v. Wyne) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Wyne, 460 S.E.2d 450, 194 W. Va. 315, 1995 W. Va. LEXIS 126 (W. Va. 1995).

Opinion

MILLER, Justice:

This is an appeal of a life recidivist conviction from the Circuit Court of Braxton County entered on April 15, 1994, pursuant to W.Va.Code, 61-11-18(e) (1994).1 Two errors are alleged. The first is whether in a life recidivist trial it is necessary for the State to prove the underlying or triggering felony conviction that gave rise to the recidivist charge in addition to the prior felony convictions. The second error is whether the offenses giving rise to the life recidivist sentence were sufficiently non-violent to violate our constitutional proportionality principle.

In 1984, Ronald Lee Wyne, the defendant, pled guilty in the Circuit Court of Braxton County to the crime of breaking and entering. Additionally, in 1989, in the same court he had entered a guilty plea to the crime of second degree arson. These two felony crimes formed the prior convictions that were set out in the life recidivist charge. This was done after the defendant had pled guilty in the Circuit Court of Braxton County in 1991 to the felony of jail escape under W.Va.Code, 61-5-10 (1990).2

The prosecutor filed an information on the two prior convictions of breaking and entering and second degree arson and sought imposition of a recidivist life sentence. The recidivist issue was tried before a jury that found that the defendant was the same indi[317]*317vidual who had been previously convicted and sentenced for the felony of breaking and entering and second degree arson. Subsequently, by the order of April 15, 1994, the defendant was “sentenced to confinement in the West Virginia Penitentiary for life upon his conviction for jail breaking.”

A life recidivist penalty may be imposed under W.Va.Code, 61-11-18 (1943), if the defendant has been convicted of two pri- or felonies3 in addition to the third felony which triggers the life recidivist proceeding.

II

We have discussed in syllabus point 1 of Gibson v. Legursky, 187 W.Va. 51, 415 S.E.2d 457 (1992) how the life recidivist penalty is imposed once the jury finds that the defendant is the same person convicted of the underlying felonies which establish the life recidivist conviction:

In applying the recidivist life penalty, the trial court does not impose a separate sentence for the last felony conviction, but upon the jury’s conviction in the recidivist proceeding it imposes a life sentence on the last felony conviction. In order to establish a life recidivist conviction, another felony must be proven beyond those for which the defendant has been previously sentenced.

See also State ex rel. McMannis v. Mohn, 163 W.Va. 129, 140-41, 254 S.E.2d 805, 811 (1979), cert. denied, 464 U.S. 831, 104 S.Ct. 110, 78 L.Ed.2d 112 (1983). In State ex rel. Combs v. Boles, 151 W.Va. 194, 200, 151 S.E.2d 115, 119 (1966), we made this parallel observation “A defendant may not be sentenced for the principal offense and then be given an additional separate sentence upon the [recidivist] information.” Thus, Gibson’s syllabus dictates that a life recidivist proceeding is designed to enhance the punishment for the third felony which in this case was jail escape. This is consistent with other jurisdictions, as illustrated by the Indiana Supreme Court’s statements in Edwards v. State, 479 N.E.2d 541, 548 (Ind.1985):

It shall be the duty of the prosecuting attorney when he has knowledge of former sentence or sentences to the penitentiary of any person convicted of an offense punishable by confinement in the penitentiary to give information thereof to the court immediately upon conviction and before sentence.
A sentence upon a finding of habitual criminality is not imposed as consecutive to the sentence imposed for the underlying felony conviction. Such a finding is not a conviction of a separate crime, but rather provides for the enhancement of a sentence imposed under conviction for an underlying felony. (Citations omitted.)

See also Lopez v. State, 108 Idaho 394, 700 P.2d 16 (1985); State v. Berney, 378 N.W.2d 915 (Iowa 1985); Hawkins v. State, 302 Md. 143, 486 A.2d 179 (1985).

The language of W.Va.Code, 61-11-19 (1943), which outlines the general procedure for trying a recidivist charge demonstrates that the recidivist charge is not triggered until there has been an initial conviction. The prosecuting attorney after this initial conviction gives the Court information as to the “former sentence or sentences to the penitentiary of’ the defendant. This information must be given “to the court immediately upon conviction and before sentence.” W.Va.Code, 61-11-19 (1943).4 Moreover, the prosecutor is required “before expiration of the term at which such person was convicted” to file an information, “setting forth the records of conviction and sentence, or convictions and sentences.”5 These records obviously relate to the prior felony convictions of the defendant and not the conviction that triggers the recidivist charge. It is this latter conviction which receives an enhanced sentence once the recidivist conviction is obtained as we pointed out in Gibson, supra.

[318]*318Thus, under W.Va.Code, 61-11-19 (1943), a recidivist proceeding does not require proof of the triggering offense because such triggering offense must be proven prior to the invocation of the recidivist proceeding. At the recidivist proceeding, proof of the prior felony or felonies convictions that are used to establish the recidivist conviction must be shown. Such recidivist conviction will then be used to enhance the penalty of the underlying triggering conviction. Consequently, the circuit court was correct in refusing to allow the jury to consider the triggering felony of jail escape as a necessary element of proof for the life recidivist conviction.

Ill

We have recognized that it is possible for a life recidivist conviction to violate the specific proportionality provision contained in Article III, Section 5 of the West Virginia Constitution that states “[penalties shall be proportioned to the character and degree of the offense.”6 Recently, in syllabus point 5 of State v. Jones, 187 W.Va. 600, 420 S.E.2d 736 (1992), we quoted our prior law setting out how our proportionality standard is applied in a life recidivist context.

‘“The appropriateness of a life recidivist sentence under our constitutional proportionality provision found in Article III, Section 5 [of the West Virginia Constitution], will be analyzed as follows: We give initial emphasis to the nature of the final offense which triggers the recidivist life sentence, although consideration is also given to other underlying convictions.

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Bluebook (online)
460 S.E.2d 450, 194 W. Va. 315, 1995 W. Va. LEXIS 126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wyne-wva-1995.