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State v. Kilmer

Supreme Court of West Virginia

November 14, 2017

STATE OF WEST VIRGINIA Plaintiff Below, Respondent
v.
MARC A. KILMER Defendant Below, Petitioner

          Submitted: September 13, 2017

         Appeal from the Circuit Court of Berkeley County The Honorable John C. Yoder, Judge Criminal Action No. 14-F-36

          Douglas F. Kobayashi, Esq. KOBY LAW Martinsburg, West Virginia Counsel for the Petitioner.

          Kevin J. Watson, Esq. Martinsburg, West Virginia Counsel for the Petitioner.

          Catherine Wilkes-Delligatti, Esq. Christopher C. Quasebarth, Esq. Berkeley County Prosecuting Attorneys' Office Martinsburg, West Virginia Counsel for the Respondent

         SYLLABUS BY THE COURT

         1. "'The Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands.' Syllabus point 1, in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997)." Syllabus Point 1, State v. Booth, 224 W.Va. 307, 685 S.E.2d 701 (2009).

         2. "While our constitutional proportionality standards theoretically can apply to any criminal sentence, they are basically applicable to those sentences where there is either no fixed maximum set by statute or where there is a life recidivist sentence." Syllabus Point 4, Wanstreet v. Bordenkircher, 166 W.Va. 523, 528, 276 S.E.2d 205, 209 (1981).

         3. "The appropriateness of a life recidivist sentence under our constitutional proportionality provision found in Article III, Section 5, will be analyzed as follows: We give initial emphasis to the nature of the final offense which triggers the recidivist life sentence, although consideration is also given to the other underlying convictions. The primary analysis of these offenses is to determine if they involve actual or threatened violence to the person since crimes of this nature have traditionally carried the more serious penalties and therefore justify application of the recidivist statute." Syllabus Point 7, State v. Beck, 167 W.Va. 830, 286 S.E.2d 31 (1981).

         4. The felony offense of driving while license revoked for DUI under West Virginia Code § 17B-4-3(c) is not an offense that involves actual or threatened violence to the person for purposes of invoking the recidivist statute, West Virginia Code § 61-11-18(c).

          WALKER, JUSTICE.

         Marc A. Kilmer was sentenced to life in prison under the recidivist statute based upon a predicate felony conviction for unlawful assault and two prior felony convictions for driving while license revoked for driving under the influence (DUI). Mr. Kilmer argues on appeal that his life sentence violates the proportionality clause of Article III, Section 5 of the West Virginia Constitution because the two prior felony offenses do not involve actual or threatened violence. The State asserts that the violence of the predicate felony for unlawful assault satisfies the goals of the recidivist statute and that Mr. Kilmer's two prior felony convictions are factually similar to those in other cases in which we have upheld recidivist life sentences. We conclude that the felony offense of driving on a license revoked for DUI does not involve actual or threatened violence and reverse the circuit court's imposition of Mr. Kilmer's recidivist life sentence.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On February 19, 2014, a Berkeley County grand jury issued a seven-count indictment against Mr. Kilmer based on a violent incident during which he inflicted serious injuries upon his former girlfriend. The charges included two counts of malicious assault, two counts of domestic battery, two counts of burglary, and one count of sexual assault in the first degree. At trial, the jury found Mr. Kilmer guilty on two counts of unlawful assault (a lesser included offense under malicious assault), two counts of domestic battery, and one count of sexual assault in the second degree (a lesser included offense under first degree sexual assault). The jury acquitted Mr. Kilmer on the two counts of burglary.

         Following trial, the State filed a recidivist information requesting a sentence of life in prison under West Virginia Code § 61-11-18(c) based on Mr. Kilmer's conviction on count one for unlawful assault and on his prior convictions in 2010 and 2012 of two unrelated felonies for third-offense driving while license revoked for DUI. At the subsequent hearing, Mr. Kilmer admitted the prior felony convictions under West Virginia Code § 17B-4-3(b).[1]

         Before sentencing, Mr. Kilmer filed a motion opposing imposition of a life sentence on the grounds that it violated the proportionality clause in Article III, Section 5 of the West Virginia Constitution. The State responded that the life sentence satisfied the requirements of the recidivist statute. The circuit court denied Mr. Kilmer's motion and sentenced him to life in prison.[2] On appeal, Mr. Kilmer challenges this sentence and also asserts that the circuit court abused its discretion by denying his "Motion for Judgment of Acquittal and Vacating the Jury Verdict" on the grounds that the evidence was insufficient for the jury to have found guilt beyond a reasonable doubt.[3]

         II. STANDARD OF REVIEW

         "'The Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands.' Syllabus point 1, in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997)."[4] With this standard in mind, we consider the constitutional challenge raised in this case.

         III. DISCUSSION

         The issue before us is whether Mr. Kilmer's recidivist life sentence[5] violates the proportionality clause of the West Virginia Constitution, which states in relevant part as follows:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted. Penalties shall be proportioned to the character and degree of the offence.[6]

         As we have explained, proportionality applies to all criminal sentences but is more germane to recidivist life sentences:

While our constitutional proportionality standards theoretically can apply to any criminal sentence, they are basically applicable to those sentences where there is either no fixed maximum set by statute or where there is a life recidivist sentence.[7]

         While the constitutionality of the recidivist statute is well-established in our jurisprudence, we have "historically adopted a rather strict and narrow construction" based upon its harsh result.[8] We also consider the underlying purpose of the statute - "the imposition of increased confinement for the dangerous criminal who repeatedly commits serious crimes."[9] With this background in mind, we determine whether Mr. Kilmer's sentence offends constitutional limitations.

         We consider the recidivist life sentence in this case according to the objective test of compliance with the proportionality clause. As we have explained:

The appropriateness of a life recidivist sentence under our constitutional proportionality provision found in Article III, Section 5, will be analyzed as follows: We give initial emphasis to the nature of the final offense which triggers the recidivist life sentence, although consideration is also given to the other underlying convictions. The primary analysis of these offenses is to determine if they involve actual or threatened violence to the person since crimes of this nature have traditionally carried the more serious penalties and therefore justify application of the recidivist statute.[10]

         In State v. Beck, we applied this test and affirmed a recidivist life sentence based upon a predicate felony conviction for first degree sexual assault of the defendant's ten-year-old stepdaughter.[11] The underlying felony convictions were for unlawful assault and for interstate transportation of a stolen vehicle.[12] In Beck, we noted that the violent nature of the felony convictions at issue in that case were distinguishable from those we considered in Wanstreet v. Bordenkircher, [13] a case decided four months prior to Beck.

         In Wanstreet, we considered a challenge to a recidivist life sentence imposed based on the predicate felony of forgery of a $43.00 check.[14] The two prior felony convictions analyzed in that case were forgery of an $18.62 check and arson of a barn.[15] We concluded that the recidivist life sentence violated proportionality based on the nonviolent nature of the predicate felony of forgery and "the similar nature of the two previous crimes" of forgery and arson of a barn.[16] In Wanstreet, we emphasized that ignoring the gravity of the underlying offenses in the context of an analysis of the ...


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