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665 S.E.2d 674

No. 33659 - State of West Virginia v. Joshua Lee Slater

Benjamin, Justice, concurring:

            I agree with the majority opinion but write separately to address the issue raised in the dissenting opinion.

            According to the dissent, the majority opinion is inconsistent with the United States Supreme Court's rulings in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). This simply is not true. As this Court explained in State v. Haught, 218 W.Va. 462, 624 S.E.2d 899 (2005), Apprendi and Blakely stand for the principle that any fact other than a prior conviction that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. In contrast, our kidnaping statute does not provide for the enhancement of a defendant's sentence beyond the statutory maximum based on additional facts found by the trial judge, but rather provides for the possible reduction of a defendant's sentence based on the trial judge's additional findings. Because Apprendi and Blakely are not applicable to the instant facts, those cases were properly omitted from the discussion in the majority opinion.

            Thus, for the reason stated above, I concur with the majority opinion.