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
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
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
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
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.