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No. 35520 -  State of West Virginia v. Dennis R. Gibson

Ketchum, J., dissenting:

            Every member of this Court agrees that domestic violence is a scourge on society, one that should be forthrightly addressed by the law. However, I respectfully disagree with the majority opinion's conclusion that W.Va. Code, 61-2-28(d) [2004] is “clear and unambiguous.” I believe that the statute is poorly drafted, vague and should be thoroughly rewritten by the Legislature.

            As it is currently written, W.Va. Code, 61-2-28(d) can be given two reasonable interpretations. W.Va. Code, 61-2-28(d) states:

          Any person who has been convicted of a third or subsequent violation . . . of this section . . . is guilty of a felony if the offense occurs within ten years of a prior conviction of any of these offenses . . .

The circuit judge read this statute to mean that only prior convictions occurring within 10 years may be considered in deciding whether a person is guilty of a third offense. The majority opinion, however, reads this statute to say that if the current third offense occurs within 10 years of any one of the prior convictions, then the current offense can be a third- offense felony.

            I believe that the majority opinion is wrong because of the long-standing, constitutional rule that criminal statutes are always to be construed against the State, not in favor. Our rule in reading criminal statutes is well established: “Penal statutes must be strictly construed against the State and in favor of the defendant.” Syllabus Point 3, State ex rel. Carson v. Wood, 154 W.Va. 397, 175 S.E.2d 482 (1970). See also, Syllabus Point 1, Myers v. Murensky, 162 W.Va. 5, 245 S.E.2d 920 (1978) (“Ambiguous penal statutes must be strictly construed against the State and in favor of the defendant.”); Syllabus Point 2, State v. Riley, 158 W.Va. 823, 215 S.E.2d 460 (1975) (“Penal statutes are strictly construed against the state and favorably for the defendant.”); Syllabus Point 1, State v. Larkin, 107 W.Va. 580, 149 S.E. 667 (1929) (“It is a general rule that a penal statute will not be extended by construction, but must be limited to cases clearly within its language and spirit.”). 

            The circuit court correctly found that W.Va. Code, 61-2-28(d) is vague, ambiguous, and subject to different reasonable interpretations. I therefore respectfully dissent from the majority's opinion.

            I am authorized to state that Justice McHugh joins in this dissent.