COURT OF APPEALS OF VIRGINIA
Present: Judges Friedman, Callins and White UNPUBLISHED
Argued at Salem, Virginia
WILLIAM JOSEPH LARUE MEMORANDUM OPINION* BY v. Record No. 1108-22-3 JUDGE FRANK K. FRIEDMAN JUNE 6, 2023 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY Robert M.D. Turk, Judge
(Dennis Nagel, on brief), for appellant. Appellant submitting on brief.
Ken J. Baldassari, Assistant Attorney General (Jason S. Miyares, Attorney General; Robin M. Nagel, Assistant Attorney General, on brief), for appellee.
William Larue was found guilty of forcible sodomy on a victim less than 13 years of age
following a jury trial in Montgomery County. He was sentenced to life in prison—the
mandatory minimum sentence for that offense. On appeal, he argues that this mandatory
sentence violates his constitutional right to be free from cruel and unusual punishment. For the
following reasons, we affirm the trial court’s rulings.
BACKGROUND
In July 2021, Larue’s wife walked in on Larue performing oral sex on his 12-year-old
granddaughter, N.H. When Larue’s wife confronted them, N.H. ran home and reported to her
mother what had happened. Larue was arrested the next day. Inside his vehicle was a note in
Larue’s handwriting reading “I’m sorry.”
* This opinion is not designated for publication. See Code § 17.1-413. The jury convicted Larue of forcible sodomy on a child under 13 years of age. After a
later sentencing hearing, the trial judge sentenced Larue to life in prison—the mandatory
minimum sentence for this offense. Larue objected to receiving a mandatory minimum life
sentence, arguing that it violated his constitutional right to be free from cruel and unusual
punishment. He argued that a life sentence was disproportionate in light of the applicable
sentencing guidelines, which recommended a maximum sentence of 13 years and 7 months.
This appeal follows.
ANALYSIS
On appeal, Larue assigns error to his life sentence, asserting that it violates “the
prohibition on cruel and unusual punishment as protected by the Eighth Amendment of the
United States Constitution and Article I Section 9 of the Virginia Constitution.”
“The Eighth Amendment, which forbids cruel and unusual punishment, contains a
‘narrow proportionality principle’ that ‘applies to noncapital sentences.’” Ewing v. California,
538 U.S. 11, 20 (2003) (quoting Harmelin v. Michigan, 501 U.S. 957, 996-97 (1991)). The
United States Supreme Court “‘has on occasion stated that the Eighth Amendment prohibits
imposition of a sentence that is grossly disproportionate to the severity of the crime.’ But
‘[o]utside the context of capital punishment, successful challenges to the proportionality of
particular sentences have been exceedingly rare.’” Id. at 21 (quoting Rummel v. Estelle, 445
U.S. 263, 278, 272 (1980)). “Reviewing courts, of course, should grant substantial deference to
the broad authority that legislatures necessarily possess in determining the types and limits of
punishments for crimes, as well as to the discretion that trial courts possess in sentencing
convicted criminals.” Solem v. Helm, 463 U.S. 277, 290 (1983). “Our traditional deference to
legislative policy choices finds a corollary in the principle that the Constitution ‘does not
-2- mandate adoption of any one penological theory.’” Ewing, 538 U.S. at 25 (quoting Harmelin,
501 U.S. at 999).
Cruel and Unusual Punishment
The Eighth Amendment to the U.S. Constitution and Article I, Section 9 of the Virginia
Constitution protect against the infliction of “cruel and unusual punishments.” Larue
acknowledges on brief that “[t]here is a long line of cases that support the right of state
legislatures to require mandatory life sentences for certain classes of offenses,” and he “asserts
that the entire line of cases should be overruled as being in violation of the mandates against
cruel and unusual punishment.” Specifically, Larue argues that this Court must consider “the
extreme contradiction in the legislative actions that both require the court to consider both
aggravating and mitigating sentencing evidence while simultaneously barring the [c]ourt from
acting on its consideration.” He notes that the trial court was “barred from consideration” of his
mitigating evidence as well as of the sentencing range recommended by the sentencing
guidelines. He argues that his life sentence was “wholly disproportionate” to the sentence range
recommended by the guidelines.
Proportionality
This Court has previously held that “proportionality review ‘is not available for any
sentence less than life imprisonment without the possibility of parole.’” Cole v. Commonwealth,
58 Va. App. 642, 654 (2011) (quoting United States v. Malloy, 568 F.3d 166, 180 (4th Cir.
2009)). “[T]he possibility of geriatric release under Code § 53.1-40.01 provides a meaningful
opportunity for release that is akin to parole.” Johnson v. Commonwealth, 292 Va. 772, 781
-3- (2016) (citing Angel v. Commonwealth, 281 Va. 248, 275 (2011)).1 Here, Larue will be eligible
for geriatric release under Code § 53.1-40.01, which states:
Any person serving a sentence imposed upon a conviction for a felony offense, other than a Class 1 felony, (i) who has reached the age of sixty-five or older and who has served at least five years of the sentence imposed or (ii) who has reached the age of sixty or older and who has served at least ten years of the sentence imposed may petition the Parole Board for conditional release.
“Under the interpanel-accord doctrine, the decision of a prior panel of this Court
‘becomes a predicate for application of the doctrine of stare decisis and cannot be overruled
except by the Court of Appeals sitting en banc or by the Virginia Supreme Court.’” Laney v.
Commonwealth, 76 Va. App. 155, 163-64 (2022) (quoting Johnson v. Commonwealth, 75
Va. App. 475, 481 (2022)). Thus, under the precedent of both Cole v. Commonwealth and
Johnson v. Commonwealth, Larue is not entitled to proportionality review of his sentence.
Mitigating Evidence
Larue also argues that his sentence violated the Eighth Amendment because the trial
court was required to impose a life sentence, regardless of Larue’s mitigating evidence and the
sentencing guidelines recommendation. A similar argument was considered in Harmelin v.
Michigan. Harmelin was convicted of possessing 672 grams of cocaine and received a
mandatory life sentence without the possibility of parole. Harmelin, 501 U.S. at 961. On appeal,
Harmelin argued in part that his sentence violated the Eighth Amendment because the sentencing
judge “was statutorily required to impose it, without taking into account the particularized
circumstances of the crime and of the criminal.” Id. at 961-62.
1 We note that Larue—who was 65 years old when this offense occurred—is significantly older than the appellants were in both Johnson and Angel, both of which dealt with crimes committed by 17 year olds. Thus, Larue will become eligible for geriatric release after serving a far shorter period of incarceration than either the Johnson or Angel appellants.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Friedman, Callins and White UNPUBLISHED
Argued at Salem, Virginia
WILLIAM JOSEPH LARUE MEMORANDUM OPINION* BY v. Record No. 1108-22-3 JUDGE FRANK K. FRIEDMAN JUNE 6, 2023 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY Robert M.D. Turk, Judge
(Dennis Nagel, on brief), for appellant. Appellant submitting on brief.
Ken J. Baldassari, Assistant Attorney General (Jason S. Miyares, Attorney General; Robin M. Nagel, Assistant Attorney General, on brief), for appellee.
William Larue was found guilty of forcible sodomy on a victim less than 13 years of age
following a jury trial in Montgomery County. He was sentenced to life in prison—the
mandatory minimum sentence for that offense. On appeal, he argues that this mandatory
sentence violates his constitutional right to be free from cruel and unusual punishment. For the
following reasons, we affirm the trial court’s rulings.
BACKGROUND
In July 2021, Larue’s wife walked in on Larue performing oral sex on his 12-year-old
granddaughter, N.H. When Larue’s wife confronted them, N.H. ran home and reported to her
mother what had happened. Larue was arrested the next day. Inside his vehicle was a note in
Larue’s handwriting reading “I’m sorry.”
* This opinion is not designated for publication. See Code § 17.1-413. The jury convicted Larue of forcible sodomy on a child under 13 years of age. After a
later sentencing hearing, the trial judge sentenced Larue to life in prison—the mandatory
minimum sentence for this offense. Larue objected to receiving a mandatory minimum life
sentence, arguing that it violated his constitutional right to be free from cruel and unusual
punishment. He argued that a life sentence was disproportionate in light of the applicable
sentencing guidelines, which recommended a maximum sentence of 13 years and 7 months.
This appeal follows.
ANALYSIS
On appeal, Larue assigns error to his life sentence, asserting that it violates “the
prohibition on cruel and unusual punishment as protected by the Eighth Amendment of the
United States Constitution and Article I Section 9 of the Virginia Constitution.”
“The Eighth Amendment, which forbids cruel and unusual punishment, contains a
‘narrow proportionality principle’ that ‘applies to noncapital sentences.’” Ewing v. California,
538 U.S. 11, 20 (2003) (quoting Harmelin v. Michigan, 501 U.S. 957, 996-97 (1991)). The
United States Supreme Court “‘has on occasion stated that the Eighth Amendment prohibits
imposition of a sentence that is grossly disproportionate to the severity of the crime.’ But
‘[o]utside the context of capital punishment, successful challenges to the proportionality of
particular sentences have been exceedingly rare.’” Id. at 21 (quoting Rummel v. Estelle, 445
U.S. 263, 278, 272 (1980)). “Reviewing courts, of course, should grant substantial deference to
the broad authority that legislatures necessarily possess in determining the types and limits of
punishments for crimes, as well as to the discretion that trial courts possess in sentencing
convicted criminals.” Solem v. Helm, 463 U.S. 277, 290 (1983). “Our traditional deference to
legislative policy choices finds a corollary in the principle that the Constitution ‘does not
-2- mandate adoption of any one penological theory.’” Ewing, 538 U.S. at 25 (quoting Harmelin,
501 U.S. at 999).
Cruel and Unusual Punishment
The Eighth Amendment to the U.S. Constitution and Article I, Section 9 of the Virginia
Constitution protect against the infliction of “cruel and unusual punishments.” Larue
acknowledges on brief that “[t]here is a long line of cases that support the right of state
legislatures to require mandatory life sentences for certain classes of offenses,” and he “asserts
that the entire line of cases should be overruled as being in violation of the mandates against
cruel and unusual punishment.” Specifically, Larue argues that this Court must consider “the
extreme contradiction in the legislative actions that both require the court to consider both
aggravating and mitigating sentencing evidence while simultaneously barring the [c]ourt from
acting on its consideration.” He notes that the trial court was “barred from consideration” of his
mitigating evidence as well as of the sentencing range recommended by the sentencing
guidelines. He argues that his life sentence was “wholly disproportionate” to the sentence range
recommended by the guidelines.
Proportionality
This Court has previously held that “proportionality review ‘is not available for any
sentence less than life imprisonment without the possibility of parole.’” Cole v. Commonwealth,
58 Va. App. 642, 654 (2011) (quoting United States v. Malloy, 568 F.3d 166, 180 (4th Cir.
2009)). “[T]he possibility of geriatric release under Code § 53.1-40.01 provides a meaningful
opportunity for release that is akin to parole.” Johnson v. Commonwealth, 292 Va. 772, 781
-3- (2016) (citing Angel v. Commonwealth, 281 Va. 248, 275 (2011)).1 Here, Larue will be eligible
for geriatric release under Code § 53.1-40.01, which states:
Any person serving a sentence imposed upon a conviction for a felony offense, other than a Class 1 felony, (i) who has reached the age of sixty-five or older and who has served at least five years of the sentence imposed or (ii) who has reached the age of sixty or older and who has served at least ten years of the sentence imposed may petition the Parole Board for conditional release.
“Under the interpanel-accord doctrine, the decision of a prior panel of this Court
‘becomes a predicate for application of the doctrine of stare decisis and cannot be overruled
except by the Court of Appeals sitting en banc or by the Virginia Supreme Court.’” Laney v.
Commonwealth, 76 Va. App. 155, 163-64 (2022) (quoting Johnson v. Commonwealth, 75
Va. App. 475, 481 (2022)). Thus, under the precedent of both Cole v. Commonwealth and
Johnson v. Commonwealth, Larue is not entitled to proportionality review of his sentence.
Mitigating Evidence
Larue also argues that his sentence violated the Eighth Amendment because the trial
court was required to impose a life sentence, regardless of Larue’s mitigating evidence and the
sentencing guidelines recommendation. A similar argument was considered in Harmelin v.
Michigan. Harmelin was convicted of possessing 672 grams of cocaine and received a
mandatory life sentence without the possibility of parole. Harmelin, 501 U.S. at 961. On appeal,
Harmelin argued in part that his sentence violated the Eighth Amendment because the sentencing
judge “was statutorily required to impose it, without taking into account the particularized
circumstances of the crime and of the criminal.” Id. at 961-62.
1 We note that Larue—who was 65 years old when this offense occurred—is significantly older than the appellants were in both Johnson and Angel, both of which dealt with crimes committed by 17 year olds. Thus, Larue will become eligible for geriatric release after serving a far shorter period of incarceration than either the Johnson or Angel appellants. -4- This argument was rejected by a majority of the Harmelin Court: “There can be no
serious contention, then, that a sentence which is not otherwise cruel and unusual becomes so
simply because it is ‘mandatory.’” Id. at 995.2 This is because “[s]evere, mandatory penalties
may be cruel, but they are not unusual in the constitutional sense, having been employed
in various forms throughout our Nation’s history.” Id. at 994-95. “It is beyond question that the
legislature ‘has the power to define criminal punishments without giving the courts any
sentencing discretion.’” Id. at 1006 (Kennedy, J., concurring in part) (quoting Chapman v.
United States, 500 U.S. 453, 467 (1991)).
Holdings of the United States Supreme Court “on Federal constitutional questions are, of
course, binding on all State courts.” Thacker v. Peyton, 206 Va. 771, 773 (1966). Virginia’s
General Assembly has “define[d]” the punishment for forcible sodomy on a victim under 13
years of age, and Larue’s sentence comports with that legislative mandate.3 Thus, Larue’s
arguments regarding the constitutionality of a mandatory life sentence must fail under the
binding precedent of Harmelin.
2 The Harmelin Court noted that, while capital cases did require “an individualized determination” of an appropriate sentence, this requirement did not extend to cases carrying mandatory life sentences without parole. 501 U.S. at 995. 3 Additionally, our Supreme Court “has [historically] deferred to legislative judgment concerning the quantum of punishment for offenses, and held in Hart that [the cruel and unusual provision of the Virginia Constitution] applies only to sentences regarded as cruel and unusual in 1776 when it was first adopted, i.e., sentences involving torture or lingering death.” Dunaway v. Commonwealth, 52 Va. App. 281, 311 (2008) (second alteration in original) (quoting John L. Costello, Virginia Criminal Law and Procedure § 3.3, at 47 (4th ed. 2008) (citing Hart v. Commonwealth, 131 Va. 726, 741-42 (1921))). Accordingly, Larue’s mandatory minimum life sentence also does not qualify as cruel and unusual under Article 1, Section 9 of the Virginia Constitution. -5- CONCLUSION
Larue’s arguments have been squarely addressed in binding precedent, holding that a
mandatory life sentence with the possibility of parole does not violate the parameters of the
Eighth Amendment. We decline Larue’s invitation to overrule this line of cases, and we affirm
the ruling of the trial court.
Affirmed.
-6-