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State v. Dubuque

Supreme Court of West Virginia

September 21, 2017

STATE OF WEST VIRGINIA, Respondent
v.
WAYNE DUBUQUE, Petitioner

          Submitted: September 13, 2017

         Appeal from the Circuit Court of Jefferson County The Honorable David H. Sanders, Judge Criminal Case No. 15-F-11

          Kevin D. Mills, Esq. Shawn R. McDermott, Esq. Mills McDermott, PLLC Martinsburg, West Virginia Counsel for Petitioner

          Scott E. Johnson, Esq. Assistant Attorney General Charleston, West Virginia Brandon C. H. Sims, Esq. Jefferson County Assistant Prosecutor Charles Town, West Virginia Counsel for Respondent

         SYLLABUS BY THE COURT

         1. "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

         2. "The analysis of whether a criminal defendant may be separately convicted and punished for multiple violations of a single statutory provision turns upon the legislatively-intended unit of prosecution." Syllabus Point 4, State v. Goins, 231 W.Va. 617, 748 S.E.2d 813 (2013).

         3. "This Court does not sit as a superlegislature, commissioned to pass upon the political, social, economic or scientific merits of statutes pertaining to proper subjects of legislation. It is the duty of the Legislature to consider facts, establish policy, and embody that policy in legislation. It is the duty of this Court to enforce legislation unless it runs afoul of the State or Federal Constitutions." Syllabus Point 2, Huffman v. Goals Coal Co., 223 W.Va. 724, 679 S.E.2d 323 (2009).

         4. Under W.Va. Code § 61-8C-3(a) [2014], any person who knowingly and willfully possesses any material visually portraying a minor engaged in any sexually explicit conduct is guilty of a felony.

         5. Under W.Va. Code § 61-8C-3(b) [2014], any person who knowingly and willfully possesses fifty or fewer images visually portraying a minor engaged in any sexually explicit conduct is guilty of a felony and, upon conviction, shall be imprisoned for not more than two years or fined not more than $2, 000 or both.

         6. Under W.Va. Code § 61-8C-3(c) [2014], any person who knowingly and willfully possesses more than fifty but fewer than six hundred images visually portraying a minor engaged in any sexually explicit conduct is guilty of a felony and, upon conviction, shall be imprisoned not less than two nor more than ten years or fined not more than $5, 000, or both.

         7. Under W.Va. Code § 61-8C-3(d) [2014], any person who knowingly and willfully possesses six hundred or more images visually portraying a minor engaged in any sexually explicit conduct or images depicting violence against a child or images depicting a child engaging in bestiality shall, upon conviction, be imprisoned for not less than five nor more than fifteen years or fined not more than $25, 000, or both.

         8. Under W.Va. Code § 61-8C-3 [2014], the total number of images portraying a minor engaged in any sexually explicit conduct possessed by a person, at the same time and place, must be aggregated to determine the appropriate sentence pursuant to W.Va. Code § 61-8C-3(b), (c), or (d).

          OPINION

          KETCHUM, JUSTICE

         Petitioner Wayne Dubuque ("Mr. Dubuque") appeals from the Circuit Court of Jefferson County's March 16, 2016, sentencing order following his guilty plea to five counts relating to his possession of material visually depicting a minor engaged in sexually explicit conduct in violation of W.Va. Code § 61-8C-3 [2014].[1] The plea agreement provided that Mr. Dubuque retained "the right to appeal the Court's ruling as to the multiplicity of counts 5-9" to which he pleaded guilty.

         On appeal, Mr. Dubuque asserts that the circuit court erred when it ruled that his possession of five individual VHS tapes containing child pornography subjected him to five separate violations of our child pornography statute. Mr. Dubuque argues that our child pornography statute does not permit a separate count of possession for each of the five VHS tapes; rather, it only permits him to be charged with a single count of possession. Thus, he argues that he was subjected to multiple punishments for the same criminal offense in violation of the double jeopardy clauses of the West Virginia and United States constitutions.[2]

         After review, we find that the plain language of W.Va. Code § 61-8C-3 does not permit Mr. Dubuque to be charged with five separate violations of the statute. We therefore reverse the circuit court's March 16, 2016, order sentencing Mr. Dubuque for five separate violations of W.Va. Code § 61-8C-3. We remand this matter to the circuit court for entry of a new sentencing order consistent with our ruling herein.

         I.

         FACTUAL AND PROCEDURAL BACKGROUND

         On June 18, 2014, Mr. Dubuque's girlfriend, D.G., [3] contacted the Jefferson County Sheriff's Office and reported that Mr. Dubuque had sexually assaulted her. Sergeant Steven Holz of the Jefferson County Sheriff's Office investigated the sexual assault at Mr. Dubuque's residence. During the course of this investigation, Sergeant Holz found a box in Mr. Dubuque's basement that was sealed with duct tape and had a note attached to it that provided, "Mom and Dad, if you are reading this then something must have happened on my trip. If so, Do not open this box. It is my request that this box and the contents inside be destroyed - No Questions Asked! Please know that I love you both. Please honor this request. Love, Wayne." Sergeant Holz testified that this box contained material visually depicting child pornography including Polaroid pictures and five VHS tapes. In addition to the material seized from this box, Sergeant Holz stated that other items were seized from the residence "including computers, [and] memory sticks."

         Following this investigation, Mr. Dubuque was indicted by a Jefferson County grand jury on twenty criminal counts. The first four counts related to Mr. Dubuque sexually assaulting D.G. Counts five through nineteen involved possession of material depicting a minor engaged in sexually explicit conduct in violation of W.Va. Code § 61-8C-3. Specifically, counts five through seven charged Mr. Dubuque with possession of material depicting a minor engaged in sexually explicit conduct depicting violence against the minor; counts eight through nineteen charged Mr. Dubuque with possession of material depicting a minor engaged in sexually explicit conduct; and count twenty charged Mr. Dubuque with possession of child erotica.

         Mr. Dubuque filed a motion to dismiss the multiple counts relating to his possession of child pornography. In this motion, counsel for Mr. Dubuque argued that "[b]ased upon the plain language of the statute [W.Va. Code § 61-8C-3], Mr. Dubuque should have been charged with a single violation for possession of child pornography." The circuit court denied this motion.

         Thereafter, a plea agreement was reached in which Mr. Dubuque entered a guilty plea to 1) count one of the indictment regarding his second-degree sexual assault of D.G., and 2) counts five through nine of the indictment, regarding his possession of child pornography that was contained on the five VHS tapes recovered from his residence.

         At the plea hearing, the State informed the circuit court that the five VHS tapes were made by Mr. Dubuque in New York and depicted Mr. Dubuque sexually abusing his minor niece. During this hearing, counsel for Mr. Dubuque told the circuit court that "this case is not about the abuse that occurred [on the VHS tapes], this case is not about the filming or the creation of those things, those things if prosecuted would be in New York. They still could be. I don't know what is going on . . . I can't say definitively. It could happen in New York but those are New York charges. All that has to do with New York. . . . When we are talking about this prosecution the only thing that this involves is possession." We emphasize that the only issue before this Court in the instant appeal is the interpretation of West Virginia's child pornography statues, and their application to Mr. Dubuque's possession of material depicting a minor engaged in sexually explicit conduct.

         The plea agreement entered into by the parties provides as follows:

1. The defendant will plead guilty to counts five through nine of the indictment. Counts 5-7 allege the felony offense of Possession of Material Depicting a Minor Engaged in Sexually Explicit Conduct with Violence to the Minor. Counts 8 and 9 allege the felony offense Possession of Material Depicting a Minor Engaged in Sexually Explicit Conduct with such Material containing over 600 images. Each of these counts carries a sentence of not less than five
(5) nor more than fifteen (15) years in the state penitentiary. There is no agreement as to how these sentences are to be served (consecutively or concurrently).
2. The defendant will also plead guilty to the offense of Second Degree Sexual Assault as charged in count 1 of the indictment. He will be sentenced to not less than ten nor more than twenty years in the penitentiary upon his conviction for this offense. This sentence will be served concurrently with the sentence set forth in paragraph # 1. Thus, the defendant would be exposed to a maximum possible sentence of not less than twenty five (25) nor more than seventy five (75) years in the state penitentiary.
6. The parties agree that the Defendant will retain the right to appeal the Court's ruling as to [the] multiplicity of counts 5-9 to which he is pleading.

         The circuit court entered a sentencing order on March 16, 2016, ruling that the five convictions for possession of child pornography would be served consecutively. Thus, the circuit court sentenced Mr. Dubuque to a total period of incarceration of twenty-five to ...


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