Martin P. Sheehan
William J. Ihlenfeld
Laura Spadaro Assistant Prosecuting Attorney
Sheehan & Nugent, P.L.L.C. Wheeling, West Virginia
Wheeling, West Virginia Attorney for the Respondent
Attorneys for the Petitioner
The Opinion of the Court was delivered PER CURIAM.
JUSTICES STARCHER AND ALBRIGHT dissent and reserve the right to file dissenting opinions.
JUSTICE MAYNARD concurs and reserves the right to file a concurring opinion.
1. In determining whether to entertain and issue the writ of prohibition for
cases not involving an absence of jurisdiction but only where it is claimed that the lower
tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether
the party seeking the writ has no other adequate means, such as direct appeal, to obtain the
desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not
correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter
of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent
disregard for either procedural or substantive law; and (5) whether the lower tribunal's order
raises new and important problems or issues of law of first impression. These factors are
general guidelines that serve as a useful starting point for determining whether a
discretionary writ of prohibition should issue. Although all five factors need not be
satisfied, it is clear that the third factor, the existence of clear error as a matter of law,
should be given substantial weight. Syllabus Point 4, State ex rel. Hoover v. Berger, 199
W. Va. 12, 483 S.E.2d 12 (1996).
2. A person convicted of a felony may not be sentenced pursuant to W. Va. Code, 61-11-18, -19 , unless a recidivist information and any or all material amendments thereto as to the person's prior conviction or convictions are filed by the prosecuting attorney with the court before expiration of the term at which such person was convicted, so that such person is confronted with the facts charged in the entire information, including any or all material amendments thereto. W. Va. Code, 61-11-19 . Syllabus point 1, State v. Cain, 178 W. Va. 353, 359 S.E.2d 581 (1987)
3. The primary purpose of our recidivist statutes, W. Va. Code, 61-11-18
(1943), and W. Va. Code, 61-11-19 (1943), is to deter felony offenders, meaning persons
who have been convicted and sentenced previously on a penitentiary offense, from
committing subsequent felony offenses. Syllabus point 3, in part, State v. Jones, 187
W. Va. 600, 420 S.E.2d 736 (1992).
4. A statute is enacted as a whole with a general purpose and intent, and
each part should be considered in connection with every other part to produce a harmonious
whole. Words and clauses should be given a meaning which harmonizes with the subject
matter and the general purpose of the statute. The general intention is the key to the whole
and the interpretation of the whole controls the interpretation of its parts. Syllabus point
1, State ex rel. Holbert v. Robinson, 134 W. Va. 524, 531, 59 S.E.2d 884 (1950).
5. Despite the fact that a third offense DUI felony conviction pursuant to
West Virginia Code § 17C-5-2(j) (Supp.1995) results from an enhanced misdemeanor, the
Legislature intended that this type of felony conviction be used for sentence enhancement
in connection with the terms of the recidivist statute, West Virginia Code § 61-11-18
(Supp.1995). Syllabus point 3, in part, State v. Williams, 196 W. Va. 639, 474 S.E.2d 569
David Appleby, (hereinafter Mr. Appleby), petitioner and defendant below,
invokes this Court's original jurisdiction in prohibition and seeks a writ prohibiting the
State from proceeding to try him as a recidivist upon his conviction for driving under the
influence (hereinafter DUI), third offense, based upon one predicate felony of unlawful
assault and two prior felony convictions of DUI, third offense. After having reviewed Mr.
Appleby's petition and memorandum of law, the State's memorandum in opposition,
reviewing the pertinent authorities and hearing the arguments of counsel, we deny the Writ.
On October 31, 2001, Mr. Appleby admitted that he had prior DUI
convictions, one on June 14, 1988, and one on September 8, 1998, such that any conviction
under the DUI, third offense count, would be felonious. Mr. Appleby asserts that he made
this admission for the purpose of excluding from jury consideration evidence of his prior
convictions, pursuant to State v. Nichols, 208 W. Va. 432, 541 S.E.2d 310 (1999). Trial of
the driving while revoked, third offense count was severed.
On November 21, 2001, the day scheduled for trial
on the DUI, third offense count, Mr. Appleby pled guilty to both counts of
the indictment. He was represented by counsel at this time--as he had been
since at least October 31, 2001. The Prosecuting Attorney stated to the trial
court that the State and Mr. Appleby had no plea agreement and that Mr. Appleby's
plea was just a straight plea to the indictment.
(See footnote 2) At
the plea hearing, the trial court advised Mr. Appleby that the maximum term
of imprisonment for each of the
offenses to which he pled guilty was one to three years, and that since the sentences could
be imposed consecutively, the maximum sentence he could receive was incarceration for
a term of two to six years. The trial court did not indicate that the State could initiate a
recidivist proceeding. The trial court accepted the plea but, notwithstanding Mr. Appleby's
waiver of the report, deferred sentencing until a presentence report could be completed.
Thereafter, the State filed information alleging that Mr. Appleby was a
recidivist in that he had three prior convictions for DUI, third offense, one unlawful assault
conviction and one felony conviction for driving on a revoked license for DUI, third
offense. If sentenced as a recidivist, Mr. Appleby was subject to a life sentence with the
opportunity for parole.
Mr. Appleby apparently filed a motion to dismiss the recidivist information
in the circuit court. After securing new counsel, (different from the one who represented
him at the November 21, 2001, plea), Mr. Appleby alleged additional grounds to dismiss
the recidivist information. The trial court denied all relief. Mr. Appleby then sought an
original jurisdiction prohibition from this Court.
We conclude that the trial court did not commit clear legal error in this case.
Consequently, we deny the writ.
A. The Trial Court and State Complied with West Virginia Code § 61-11-18 and
West Virginia Rule of Criminal Procedure 11. Additionally, none of Mr. Appleby's
Constitutional Rights Were Violated by the Trial Court's Actions.
Mr. Appleby argues that the State's delay of three days in filing the
information violated the requirements of W. Va Code § 61-11-19. He also complains that
the trial court misinformed him that the maximum sentence that could be imposed was a
total of two to six years, while it was actually a life sentence as a recidivist.
Mr. Appleby specifically contends that the State's delay in filing the recidivist information from November 21 to November 24 was impermissible because it was not immediate notice in open court as required by W. Va. Code § 61-11-19.
We said in syllabus point 1 of State v. Cain, 178 W. Va. 353, 359 S.E.2d 581
(1987) (emphasis added):
A person convicted of a felony may not be sentenced pursuant to W. Va. Code, 61-11-18, -19 , unless a recidivist information and any or all material amendments thereto as to the person's prior conviction or convictions are filed by the prosecuting attorney with the court before expiration of the term at which such person was convicted, so that such person is confronted with the facts charged in the entire information, including any or all material amendments thereto. W. Va. Code, 61-11-19 .
More recently, we said in Syllabus point 2 of State v. Cavallaro, 210 W. Va. 237, 557 S.E.2d 291 (2001) (per curiam) (emphasis added):
A person convicted of a felony cannot be sentenced under the habitual criminal statute, [W. Va.] Code § 61-11-19 [(2000)], unless there is filed by the prosecuting attorney with the court at the same term, and before sentencing, an information as to the prior conviction or convictions and for the purpose of identification the defendant is confronted with the facts charged in the information and cautioned as required by the statute. Syllabus point 3, State ex rel. Housden v. Adams,
143 W. Va. 601, 103 S.E.2d 873 (1958).
Thus, we believe the immediacy requirement is satisfied if the State files the information before sentencing and prior to the end of the term of court within which the defendant was convicted. To hold otherwise would risk a defendant being able to avoid imposition of a recidivist sentence if the State is unaware at the time of conviction of any predicate offenses. Such an inadvisable result would emasculate [t]he primary purpose of our recidivist statutes, W. Va. Code, 61-11-18 (1943), and W. Va. Code, 61-11-19 (1943), [which] is to deter felony offenders, meaning persons who have been convicted and sentenced previously on a penitentiary offense, from committing subsequent felony offenses[,] Syl. pt. 3, in part, State v. Jones, 187 W. Va. 600, 420 S.E.2d 736 (1996) and to protect society from habitual criminals. . . . State v. Stout, 116 W. Va. 398, 402, 180 S.E.2d 443, 444 (1935). (See footnote 4) As we said in Syllabus point 1 of State ex rel. Holbert v. Robinson, 134 W. Va. 524, 531, 59 S.E.2d 884, 889 (1950):
A statute is enacted as a whole with a general purpose and
intent, and each part should be considered in connection with
every other part to produce a harmonious whole. Words and
clauses should be given a meaning which harmonizes with the
subject matter and the general purpose of the statute. The
general intention is the key to the whole and the interpretation
of the whole controls the interpretation of its parts.
In this case, the recidivist information was filed before sentencing and prior to the end of the term of court within which Mr. Appleby was convicted. Therefore, he has no legal basis upon which to complain.
This does not end our inquiry. Mr. Appleby also posits that the trial court's
failure to advise him that he faced a life sentence under the recidivist act violates West
Virginia Rule of Criminal Procedure 11(c)(1). Rule 11(c)(1) requires, among other things,
[b]efore accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands,
. . . [t]he nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law[.]
Mr. Appleby contends that the trial court's information was erroneous and that the recidivist proceeding should be prohibited by this Court. We believe Mr. Appleby's application of Rule 11(c)(1) is flawed.
Guilty pleas are governed by Rule 11 of the West Virginia Rules of Criminal Procedure, which is patterned after Rule 11 of the Federal Rules of Criminal Procedure. State v. Bennett, 179 W. Va. 464, 467, 370 S.E.2d 120, 123 (1988). In applying our Rule 11, we have looked to the advisory committee's note to federal Rule 11. State v. Evans, 203 W. Va. 446, 449, 508 S.E.2d 606, 609 (1998). See also State ex rel. Starr v. Halbritter, 183 W. Va. 350, 352 n.4, 395 S.E.2d 773, 775 n.4 (1990) (citing advisory committee's note to Federal Rule of Criminal Procedure 7(a)); State v. Bongalis, 180 W. Va. 584, 589 n.6, 378 S.E.2d 449, 454 n.6 (1989) (citing advisory committee's note to Federal Rule of Criminal Procedure 12(b)(2)); State v. Watson, 173 W. Va. 553, 558, 318 S.E.2d 603, 608 (1984) (citing advisory committee's note to Federal Rule of Criminal Procedure 26.2).
The advisory committee note to the 1974 amendment to Federal Rule of Criminal Procedure 11 provides, in pertinent part:
It has been suggested that it is desirable to inform a defendant of additional consequences which might follow from his plea of guilty. . . . The ABA Standards Relating to Pleas of Guilty § 1.4(c)(iii) (Approved Draft, 1968) recommend that the defendant be informed that he may be subject to additional punishment if the offense charged is one for which a different or additional punishment is authorized by reason of the defendant's previous conviction.
Under the rule the judge is not required to inform a defendant about these matters, though a judge is free to do so if he feels a consequence of a plea of guilty in a particular case is likely to be of real significance to the defendant.
(Emphasis added). Thus, Rule 11 does not require a trial court to advise a defendant concerning a possible recidivist enhancement (See footnote 5) and the trial court in this case committed no error in not so informing Mr. Appleby.
We find further support in the recognition of the Fourth Circuit that:
The law is clear that a valid plea of guilty requires that the defendant be made aware of all the direct consequences of his plea. By the same token, it is equally well settled that, before pleading, the defendant need not be advised of all collateral consequences of his plea, or, as one Court has phrased it, of all possible ancillary or consequential results which are peculiar to the individual and which may flow from a conviction of a plea of guilty, . . . .
Cuthrell v. Director, Patuxent Institute, 475 F.2d 1364, 1365-66 (4th Cir. 1973) (citations omitted). The distinction between 'direct' and 'collateral' consequences of a plea, while sometimes shaded in the relevant decisions, turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant's punishment. Id. at 1366.
Under West Virginia Code §§ 61-11-18 & 19, the imposition of a life
sentence is not definite, immediate and largely automatic. The State not only retains the
discretion to decide when to pursue recidivist sentencing (or to decide not to so proceed),
but the separate nature of the recidivist proceeding requires the State to satisfy a number
of requirements, such as: (1) filing a written information, Syl. pt. 1, State ex rel. Cox v.
Boles, 146 W. Va. 392, 120 S.E.2d 707 (1961); (2) proving beyond a reasonable doubt that
each penitentiary offense, including the principal penitentiary offense, was committed
subsequent to each preceding conviction and sentence[,] Syl., State v. McMannis, 161
W. Va. 437, 242 S.E.2d 571 (1978); and (3) proving beyond a reasonable doubt to the jury
the identity of the defendant. W. Va. Code § 61-11-19; Syl. pt. 4, State v. Vance, 164
W. Va. 216, 262 S.E.2d 423 (1980). As then State Supreme Court Justice (and now United
States Supreme Court Associate Justice) Souter explained in State v. Elliott, 574 A.2d 1378,
1380 (N.H. 1990) (citation omitted):
The possible significance of a guilty verdict for purposes of the habitual offender act is a classic example of a conviction's consequences that is collateral in the sense that the consequence requires application of a legal provision extraneous to the definition of the criminal offense and the provisions for sentencing those convicted under it. Thus, we have consistently held that a sentencing court need not advise a defendant about the habitual offender law before accepting a guilty plea to a predicate offense under that law[.]
The procedure used in the case below was consistent with our statutes and, thus, consistent with constitutional mandate. See Oyler v. Boles, 368 U.S. 448, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962) (affirming the constitutionality of West Virginia's recidivist statutes). In the case sub judice:
Petitioner was fully advised of the nature of the charge; he was
represented by counsel; the plea was entered freely and
voluntarily, and the alleged lack of knowledge of a permissible
increased penalty because petitioner was a recidivist is not
sufficient to void the plea.
United States ex rel. Toland v. Phimister, 296 F. Supp. 1027, 1029 (S.D.N.Y. 1969). (See footnote 6)
In short, neither the constitution nor [Rule
11] requires that a criminal defendant be advised of the possibility of habitual
criminal proceedings prior to the entry of a plea of guilty. State
v. Barton, 93 Wash. 2d 301, 305, 609 P.2d 1353, 1356 (1980) (en banc),
questioned by State v. McDermond, 112 Wash. App. 239, 47 P.3d 600 (2002).
(See footnote 7) Thus, we deny the prohibition.
(See footnote 8)
The Petitioner cites Apprendi v. New Jersey, 530 U.S. 466, 469, 120 S. Ct.
2348, 147 L. Ed. 2d 435 (2000), claiming that the facts of the prior convictions under our
recidivist statute must be plead in the charging indictment and proven to a jury beyond a
reasonable doubt. We reject both of these contentions.
1. There is No Constitutional Requirement that a Recidivist Enhancement
be Charged in the Indictment for the Triggering Offense. In West Virginia, recidivist
proceedings are commenced by a separate information. See W. Va. Code § 61-11-19. The
Petitioner contends that Apprendi requires the original indictment include notification of
the State's intent to seek a recidivist enhancement.
At issue in Apprendi was the constitutional permissibility of a New Jersey
statute empowering a trial judge to enhance a sentence if the judge found by a
preponderance of the evidence that the motivation for the crime was to intimidate an
individual or group of individuals because of race, color, gender, handicap, religion, sexual
orientation or ethnicity. In finding the statute unconstitutional, the Court held that [o]ther
than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt. Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63, 147 L. Ed. 2d at 455 (emphasis
added). This ruling was consistent with the Supreme Court's earlier opinion in Almendarez-
Torres v. United States, 523 U.S. 224, 247, 118 S. Ct. 1219, 1233, 140 L. Ed. 2d 350, 371
(1998), where the Court held recidivism may be treated as a sentencing factor rather than
an essential element of the underlying offense.
Apprendi expressly refused to revisit Almendarez-Torres. 530 U.S. at 489-90, 120 S. Ct. at 2362, 140 L. Ed. 2d at 454-55. While Apprendi noted tension with Almendarez-Torres, it refused to overrule that case thus carving out a narrow exception regarding recidivism. Id. at 490, 120 S. Ct at 2362, 147 L. Ed. 2d at 455. Thus, consistent with Almendarez-Torres, 523 U.S. at 243, 118 S. Ct. at 1231, 140 L. Ed. 2d at 368,
a State need not allege a defendant's prior conviction in the indictment or information that alleges the elements of an underlying crime, even though the conviction was necessary to bring the case within the statute. Graham v. West Virginia, 224 U.S. 616, 624, 32 S. Ct. 583, 585-86, 56 L. Ed. 917 (1912).
2. There is No Federal Constitutional Requirement of Proof Beyond a Reasonable Doubt to a Jury of the Fact of Predicate Convictions. Mr. Appleby also appears to contend that consistent with his view (a view we have rejected, see supra Part III.B.1) that not only must the recidivist charge be included in the original indictment charging the triggering offense, the fact of the predicate felonies must be proven to the jury beyond a reasonable doubt. However, Apprendi has not overruled Almendarez-Torres and we apply Supreme Court precedent as it stands, and that precedent does not require that either the existence or substance of [the defendant's] earlier convictions be submitted to a jury and proven beyond a reasonable doubt. United States v. Peltier, 276 F.3d 1003, 1006 (8th Cir.), cert. denied, ___ U.S. ___, 123 S. Ct. 246, ___ L. Ed. 2d ___ (2002) .
Indeed, Apprendi itself recognized a compelling rationale for treating prior
convictions differently from elements of a present offense. The prior convictions have
already been proven to a jury beyond a reasonable doubt (or such requirements have been
waived by the defendant). See Apprendi, 530 U.S. at 496, 120 S. Ct. at 2366, 147 L. Ed. 2d
at 458-59 ([T]here is a vast difference between accepting the validity of a prior judgment
of conviction entered in a proceeding in which the defendant had the right to a jury trial and
the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing
the judge to find the required fact under a lesser standard of proof.). The United States
Supreme Court applied similar rationale in two cases post-dating Apprendi, and concluded
that, with the exception of denial of counsel claims, petitioners seeking post-conviction
relief cannot challenge the validity of any predicate felonies. See, e.g., Lackawanna County
Dist. Attorney v. Coss, 532 U.S. 394, 403-04, 121 S. Ct. 1567, 1574, 149 L. Ed. 2d 608, 618
(2001) (citations omitted) ([O]nce a state conviction is no longer open to direct or
collateral attack in its own right because the defendant failed to pursue those remedies while
they were available (or because the defendant did so unsuccessfully), the conviction may
be regarded as conclusively valid. If that conviction is later used to enhance a criminal
sentence, the defendant generally may not challenge the enhanced sentence through a
petition under [28 U.S.C.] § 2254 on the ground that the prior conviction was
unconstitutionally obtained.); Daniel v. United States, 532 U.S. 374, 382, 121 S. Ct. 1578,
1587, 149 L. Ed. 2d 590, 600 (2001) (similar-prior enhancement convictions may not be
contested under federal motion to vacate sentence, 28 U.S.C. § 2255).
The United States Supreme Court has said that states may not impose greater
protections as a matter of federal constitutional law when the Supreme Court has specifically
refrained from imposing them, but may do so as a matter of state law. See Arkansas v.
Sullivan, 532 U.S. 769, 772, 121 S. Ct. 1876, 1878, 149 L. Ed. 2d 994, 999 (2001) (per
curiam) (citing Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570,
575-76 (1975)). The Supreme Court has spoken as a matter of federal constitutional law and
concluded that there is no requirement that the existence of predicate convictions be
submitted to a jury and proved beyond a reasonable doubt. We cannot, as a matter of federal
constitutional law, adopt such a rule.
We further recognize, however, that Mr. Appleby does have a significant
number of procedural rights as a matter of state law in a recidivist proceeding. See Wanstreet
v. Bordenkircher, 166 W. Va. 523, 527, 276 S.E.2d 205, 209 (1981) (noting the strict
procedural standards applicable to a recidivist proceeding). For example, under state law,
a recidivist defendant has the right to require the State to prove to a jury beyond a reasonable
doubt the fact of prior conviction, as well as the identity of the defendant as the person
convicted of the predicate felonies and that the prior convictions occurred one after the other.
Id. at 526-27, 276 S.E.2d at 208. Thus, we deny the writ.
We further recognize, however, that Mr. Appleby does have a significant number of procedural rights as a matter of state law in a recidivist proceeding. See Wanstreet v. Bordenkircher, 166 W. Va. 523, 527, 276 S.E.2d 205, 209 (1981) (noting the strict procedural standards applicable to a recidivist proceeding). For example, under state law, a recidivist defendant has the right to require the State to prove to a jury beyond a reasonable doubt the fact of prior conviction, as well as the identity of the defendant as the person convicted of the predicate felonies and that the prior convictions occurred one after the other. Id. at 526-27, 276 S.E.2d at 208. Thus, we deny the writ.
C. Application of West Virginia's Recidivist Statute to a Repeated Drunk Driver Is Not
We first refuse to revisit a case of such recent vintage
as Williams on the ground we have misunderstood statutory intent--especially
given that the legislature has not amended West Virginia Code § 61-11-18
since we decided Williams. If the doctrine of stare decisis is
to play any judicial role, . . ., we cannot overrule a decision so recently
rendered without any evidence of changing conditions or serious judicial error
in interpretation. Dailey v. Bechtel Corp., 157 W. Va. 1023,
1029, 207 S.E.2d 169, 173 (1974).
(See footnote 10)
Mr. Appleby also posits a constitutional argument not raised in Williams that
driving under the influence is not a serious crime so that imposition of a life sentence would
violate the proportionality guarantees of the federal and state constitutions. He cites Solem v. Helm, 463 U.S. 277, 296-97, 103 S. Ct. 3001, 3013, 77 L. Ed. 2d 637,
653 (1983), for the proposition that crimes such as burglary and DUI, third
offense, are relatively minor.
(See footnote 11) We strongly disagree with the Solem
majority. We join in the recognition of the Solem dissenters that [a]t
the very least, respondent's burglaries and his third-offense drunk
driving posed real risk of serious harm
to others. It is sheer fortuity that the places respondent burglarized were
unoccupied and that he killed no pedestrians while behind the wheel.
Id. at 315-16, 103 S. Ct. at 3023, 77 L. Ed. 2d at 665 (Burger, C.J.,
Rehnquist, O'Connor & White, JJ., dissenting).
(See footnote 12)
The Supreme Court itself has recognized in the years since Solem that,
the offense of driving while intoxicated is increasingly regarded in
many jurisdictions as a very serious matter. Berkemer v. McCarty,
468 U.S. 420, 432, 104 S. Ct. 3138, 3146, 82 L. Ed. 2d 317, 330 (1984) (footnote
(See footnote 13) In Michigan Department of State Police
v. Sitz, 496 U.S. 444, 451, 110 S. Ct. 2481, 2485-86, 110 L. Ed. 2d 412,
420- 21 (1990) (footnote omitted) the Court observed:
No one can seriously dispute the magnitude of the drunken driving problem or the States interest in eradicating it. Media reports of alcohol - related death and mutilation on the Nation's roads are legion. The anecdotal is confirmed by the statistical. Drunk drivers cause an annual death toll of over 25,000 and in the same time span cause nearly one million personal injuries and more than five billion dollars in property damage. 4 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 10.8(d), p. 71 (2d ed. 1987). For decades, this Court has repeatedly lamented the tragedy. South Dakota v. Neville, 459 U.S. 553, 558, 103 S. Ct. 916, 920, 74 L. Ed. 2d 748 (1983); see Breithaupt v. Abram, 352 U.S. 432, 439, 77 S. Ct. 408, 412, 1 L. Ed. 2d 448 (1957) (The increasing slaughter on our highways . . . now reaches the astounding figures only heard of on the battlefield).
The statistics recited in Sitz mirror those in West Virginia. In 2001, 131 people lost their lives in alcohol related traffic incidents in West Virginia and annual alcohol related crash costs in West Virginia--including medical care, work loss, public service (emergency personnel), property damage and legal costs, and pain, suffering and lost quality of life costs--totaled $1,000,000,000. Mothers Against Drunk Driving: Rating the States 2002, available at www.madd.org/docs/rts2002/rts_section3.pdf.
Our view accords with the dissenters in Solem,
the jurisdictions noted in Berkemer, and the majority in Sitz.
The dangers inherent in driving on the public streets while under the
influence of an intoxicant are obvious. State v. Luke, 995 S.W.2d
630, 638 (Tenn. Ct. Crim. App. 1998). In short, operating an automobile
while under the influence is reckless conduct that places the citizens of
this State at great risk of serious physical harm or death. State
ex rel. State v. Gustke, 205 W. Va. 72, 81, 516 S.E.2d 283, 292 (1999).
(See footnote 14)
Mr. Appleby's record includes an astounding four third-offense driving
under the influence felony convictions (and a grand total of eight
acts of driving under the influence),
(See footnote 15) and one
unlawful assault conviction. We have little trouble in finding that driving under the
influence is a crime of violence supporting imposition of a recidivist sentence. A
conviction for driving under the influence is a serious conviction warranting consideration
in the calculation of a defendant's criminal history category. United States v. Julian, 112
F.3d 511 (4th Cir. 1997) (per curiam) (unpublished) (text available in Westlaw).
Mr. Appleby cites us federal statutory immigration law that excludes driving
under the influence convictions from the definition of crimes of violence. He also asserts
that crimes with an intent component are more culpable than crimes of recklessness and
punishment should be measured accordingly. We take exception to both of these
We reject the application of federal immigration law.
To the extent that any federal law should guide us, we think a more appropriate
measurement for a crime of violence is that contained in the United States Sentencing
Guidelines. United States Sentencing Guideline § 4B1.2, application note
1, provides Other offenses are included as 'crimes of violence' if (B)
the conduct set forth (i.e., expressly charged) in the count of which the defendant
was convicted . . . by its nature, presented a serious potential risk of physical
injury to another. Consistent with our reasoning in Gustke, the
federal courts have recognized that, the very nature of the crime of DWI
[Driving While Intoxicated] presents a 'serious risk of physical injury' to
others, and makes DWI a crime of violence. United States v. DeSantiago-Gonzalez,
207 F.3d 261, 264 (5th Cir. 2000) (citation omitted). Furthermore, a reckless
indifference to the value of human life may be every bit as shocking to the
moral sense as an 'intent to kill.' Tison v. Arizona, 481 U.S.
137, 157, 107 S. Ct. 1676, 1688, 95 L. Ed. 2d 127, 144 (1987).
(See footnote 16)
Thus, we do not find Mr. Appleby's
West Virginia Code § 61-11-18 is designed to deter those who are incapable
of conforming their conduct to legitimately enacted obligations protecting society. See, e.g.,
Syl pt. 3, State v. Jones, 187 W. Va. 600, 420 S.E.2d 736 (1992); State v. Pratt, 161 W. Va.
at 546, 244 S.E.2d at 236; State v. Stout, 116 W. Va. at 402, 180 S.E. at 444. States have
a valid interest in deterring and segregating habitual criminals[,] Parke v. Raley, 506 U.S.
20, 27, 113 S. Ct. 517, 52, 121 L. Ed. 2d 391, 402 (1992), and a compelling interest in
ensuring the safety of the public roadways. Mackey v. Montrym, 443 U.S. 1, 17 &18 , 99
S. Ct. 2612, 2620 & 2621, 61 L. Ed. 2d 321, 334 & 335 (1979) (recognizing the paramount
interest the Commonwealth has in preserving the safety of its public highways and the
states compelling interest in highway safety[.]). See also State v. Tanner, 15 Ohio St.3d
1, 5, 472 N.E.2d 689, 693 (1984) (citing Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d
1339 (1983)) (We find that there is a substantial state interest in reducing the carnage
wrought by drunk drivers.)
By our reading of the recidivist information filed in this case, Mr. Appleby has been convicted of DUI, third offense, four times since 1993 (including
the conviction now at issue before this Court). Moreover, the transcript of
Mr. Appleby's guilty plea contains an uncontested statement from the Prosecuting
Attorney that on the evening Mr. Appleby was arrested for the driving under
the influence count that forms the basis of this proceeding, he admitted to
the arresting officer that he had consumed thirty beers.
(See footnote 17)
We are in general agreement with the Idaho Court of Appeals that:
Driving under the influence of intoxicants is a serious offense. Although it is not a violent crime, driving while intoxicated inherently creates a grave risk of injury to persons and property and raises very significant concerns for public safety. The human suffering inflicted by those who drive while intoxicated is no less severe, and perhaps more pervasive, than that caused by intentional acts of violence. Hence the nature of the DUI offense tends to support a substantial sentence.
State v. Croston, 124 Idaho 471, 472-73, 860 P.2d 674, 675-76 (Ct. App. 1993). (See footnote 18)
The possible imposition of a life sentence for Mr. Appleby's egregious,
socially reprehensible, apparently incorrigible and indisputably dangerous conduct violates
no proportionality principle. Indeed, Mr. Appleby tells us in his memorandum of law that
in at least eight states a life sentence may be possible, and two states may impose sentences
of 99 and 100 years for habitual drunk drivers, respectively. And states have imposed life
sentences for just such offenses. See, e.g., Strickland v. State, 784 So. 2d 957 (Miss. 2001)
(en banc) (plurality opinion) (defendant sentenced to a life without parole term as a
recidivist for a DUI, third offense, predicated only on possession of a firearm by a felon and
aggravated assault); Bell v. State, 814 S.W.2d 229 (Tex. Ct. App. 1991) (Bell convicted
of DUI, third offense, and charged as a recidivist--jury assessed a life sentence, but the
sentence vacated because of the state's inability to prove the validity of two of the predicate
felonies). Application of the recidivist statute to Mr. Appleby does not violate his rights.
The void for vagueness doctrine is an aspect of the due process requirement
that statutes set forth impermissible conduct with sufficient clarity that a person of ordinary
intelligence knows what conduct is prohibited and the penalty if he transgresses these
'Elementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment[,] but also of the severity of the penalty that a State may impose.' State v. Miller, 197 W. Va. 588, 599, 476 S.E.2d 535, 546 (1996) (quoting BMW of North America, Inc. v. Gore, 517 U.S. 559, 574, 116 S. Ct. 1589, 1598, 134 L. Ed. 2d 809, 826 (1996) (footnote omitted)).
State v. Easton, 203 W. Va. 631, 640, 510 S.E.2d 465, 474 (1998).
In a facial challenge to the vagueness of a law,
assuming the enactment implicates no constitutionally protected conduct, [the court] should uphold the challenge only if the enactment is impermissibly vague in all of its applications. A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law. Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 494-95, 102 S. Ct. 1186, 1191-92, 71 L. Ed. 2d 362 [, 368-69] (1982) (footnote omitted).
Thus, the Court has recognized that a party has standing to challenge a statute facially if no standard of conduct is specified at all, Parker [v. Levy], 417 U.S. [733,], 757, 94 S. Ct. [2547,] 2562, [41 L. Ed. 2d 439, 458 (1974),] that is, if the statute is impermissibly vague in all of its applications. Hoffman Estates, 455 U.S. at 497 [102 S. Ct. at 1193, 71 L. Ed. 2d at 371]; Kolender v. Lawson, 461 U.S. 352, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983).
United States v. Westbrook, 817 F.2d 529, 532 (9th Cir. 1987). (See footnote 19)
West Virginia Code § 61-11-18(c) provides, [w]hen it is determined, as
provided in section nineteen of this article, that such person shall have been twice before
convicted in the United States of a crime punishable by confinement in a penitentiary, the
person shall be sentenced to be confined in the state correctional facility for life. We have
previously recognized that West Virginia Code § 61-11-18 is plain and unambiguous . .
. . State ex rel. Chadwell v. Duncil, 196 W. Va. 643, 647, 474 S.E.2d 573, 577 (1996) (per
curiam). If a defendant is twice convicted of a penitentiary offense he falls within the ambit
of West Virginia Code § 61-11-18.
Conviction of DUI, third offense, is a felony that carries with it a possible
sentence of imprison[ment] in a state correctional facility for not less than one nor more
than three years . . . . W. Va. Code § 17C-5-2(k) (2000 Repl. Vol.) Because Mr. Appleby
has three prior convictions for the felony crimes of DUI, third offense, and one conviction
for the felony of unlawful wounding, he clearly falls within the parameters of West Virginia
Code § 61-11-18© and lacks standing to raise a facial challenge to the statute. See Haig v.
Agee, 453 U.S. 280, 309 n.61, 101 S. Ct. 2766, 2783 n.61, 69 L. Ed. 2d 640, 663 n.61
(1981) (citing Parker v. Levy, 417 U.S. 733, 755-756, 94 S. Ct. 2547, 2561-2562, 41 L. Ed.
2d 439, 458 (1974)) (The District Court held that since Agee's conduct falls within the
core of the regulation, Agee lacks standing to contend that the regulation is vague and
overbroad. Tr. 11-12 (Jan. 3, 1980). We agree.); Fisher v. Coleman, 639 F.2d 191, 191-91
(4th Cir. 1981) (per curiam) ([F]isher lacked standing to challenge the interdiction
provisions of [the habitual drunkard statute,] Va. Code § 4-51 on vagueness . . . grounds
because, viewed both from his perspective or that of enforcing officials, his undisputed
conduct (inter alia, fifty-nine convictions for public drunkenness over a period of slightly
more than two years prior to his interdiction) fell clearly within the challenged language[.])
Moreover, it appears that Mr. Appleby's is invoking the due process clause
in a round about way to address his real complaint which is with our proportionality
jurisprudence. Mr. Appleby challenges our recidivist statute claiming that in some instances this Court has affirmed recidivist sentences for some defendants,
but has reversed the recidivist sentences for others, eve though these defendants
were convicted of the same offenses or had the same predicate felonies. Even
assuming the accuracy of Mr. Appleby's assertion
(See footnote 20)
that West Virginia's sentencing scheme might indeed permit another defendant
guilty of the same crime to receive a lesser sentence . . . . that
is no reason for altering [his] punishment or declaring the law
unconstitutional. Judicial discretion naturally leads to
discrepancies in sentencing, as [he] complains. But even wide
sentencing discretion in the abstract is not a violation of due
process or equal protection. [T]he issue is the appropriateness
of the sentence given the defendant's crime: Discretion, even
if it ends in grossly unequal treatment according to culpability,
does not entitle a guilty defendant to avoid a sentence
appropriate to his own crime.
Holman v. Page, 95 F.3d 481, 486 (7th Cir. 1996) (citation omitted).
Having already disposed of Mr. Appleby's proportionality claims, see supra
Part 3.C, we need not readdress them here. See Portunado v. Agard, 529 U.S. 61, 74, 120
S. Ct. 1119, 1127, 146 L. Ed. 2d 47,59 (2000) (Of course to the extent this [14th
Amendment due process] claim is based upon alleged burdening of Fifth and Sixth
Amendment rights, it has already been disposed of by our determination that those Amendments were not infringed.)
(See footnote 21)
Date of Conviction
|June 14, 1988||Driving under the Influence||Magistrate Court of Ohio County
|December 2, 1992||Driving under the Influence
||County Court of Belmont County, Ohio
|May 4, 1993||Driving under the Influence,
|Circuit Court of
|May 9, 1995||Driving under the Influence||County Court of Belmont County, Ohio
|August 10, 1995||Driving under the Influence,
Circuit Court of
|May 27, 1997||Driving under the Influence||Magistrate Court
Of Ohio County
|September 8, 1998||Driving under the Influence,
|Circuit Court of
Defendant also contends that his previous convictions for driving under the influence were not probative on the knowledge element of implied malice, because the convictions showed only that he knew such driving was unlawful, but not that he knew it was dangerous. However, the reason that driving under the influence is unlawful is because it is dangerous, and to ignore that basic proposition, particularly in the context of an offense for which the punishment for repeat offenders is more severe . . ., is to make a mockery of the legal system as well as the deaths of thousands each year who are innocent victims of drunken drivers.