State v. Evans

• Decision Date: 30 September 1998
• Docket Number: No. 25209., No. 25000
• Citation: 203 W.Va. 446,508 S.E.2d 606
• Parties: STATE of West Virginia, Appellee, v. Robert Vaughn EVANS, Appellant. STATE of West Virginia, Appellee, v. James B. LEWIS, Appellant.
• Court: West Virginia Supreme Court

508 S.E.2d 606

203 W.Va. 446

STATE of West Virginia, Appellee, v. Robert Vaughn EVANS, Appellant.

STATE of West Virginia, Appellee, v. James B. LEWIS, Appellant.

Nos. 25000, 25209.

Supreme Court of Appeals of West Virginia.

Submitted September 15, 1998.

Decided September 30, 1998.

Darrell V. McGraw, Jr., Attorney General, Victors S. Woods, Allen H. Loughry, Assistant Attorneys General, Charleston, West Virginia, Attorneys for Appellee.

Thomas G. Dyer, Clarksburg, West Virginia, Attorney for Appellant (Case No. 25000).

Dorwin J. Wolfe, Esq., Elkins, West Virginia, Attorney for Appellant (Case No. 25209).

WORKMAN, Justice:

These cases have been consolidated to resolve the issue of whether the West Virginia Rules of Evidence or Criminal Procedure preclude the use of a conviction based upon a plea of nolo contendere for purposes of probation revocation and/or sentence enhancement under this state's recidivism laws. Upon examining the respective rules, applicable law, and commentary on these issues, we conclude that convictions predicated on pleas of nolo contendere can be used both to revoke probation and to enhance sentencing.

State v. Lewis

Appellant James B. Lewis ("Lewis") pled guilty to daytime burglary and second offense DUI in December 1994 and was subsequently placed on five years probation. On August 17, 1997, while still on probation, he was arrested and charged with domestic battery. Lewis pled no contest to the charge and was sentenced to ten days in jail. The State moved to revoke Lewis' probation and following a hearing, the circuit court revoked Lewis' probation. This Court granted Lewis' petition for appeal "solely on the issue regarding Rule 410 of the West Virginia Rules of Evidence."

Rule 410 states, in relevant part: "Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions: ... (2) a plea of nolo contendere[.]" Lewis argues that the trial court's sole basis for revoking his probationary status was the nolo plea.¹ Given the proscriptive language of Rule 410 regarding the evidentiary use of nolo pleas, Lewis contends that the trial court erred in relying on his domestic battery conviction to revoke his probation since that conviction was obtained through a nolo plea.

As the State points out, Lewis' argument fails completely based on the language of Rule 1101(b)(3) of the West Virginia Rules of Evidence. That rule, which deals with the applicability of the rules of evidence in general states that, "[u]nless otherwise provided by rules of the Supreme Court of Appeals, these rules other than those with respect to privileges do not apply in the following situations:... (3) Miscellaneous proceedings.— Sentencing; granting or revoking probation...." W.Va.R.Evid. 1101(b)(3) (emphasis supplied). Rule 1101(b)(3) unmistakably exempts probation revocation proceedings from compliance with the West Virginia Rules of Evidence. The inapplicability of evidentiary rules at probation revocation proceedings is well-established. See United States v. McCallum, 677 F.2d 1024, 1026 (4th Cir.),

cert. denied, 459 U.S. 1010, 103 S.Ct. 365, 74 L.Ed.2d 400 (1982) (holding that federal rules of evidence concerning hearsay do not apply to probation revocation hearings); United States v. Smith, 571 F.2d 370, 373 (7th Cir.1978) (observing that rule 1101(d) indicates that federal rules of evidence do not apply to hearings involving probation revocation); accord United States v. Verbeke, 853 F.2d 537, 539 (7th Cir.1988); Howell v. State, No. CA CR 91-237, 1992 WL 146638 at *3 (Ark.Ct.App.1992) (finding no error in trial court's ruling that Arkansas Rules of Evidence do not apply to probation revocation hearings); State v. Ozmun, 221 Neb. 481, 378 N.W.2d 170, 172 (Neb.1985) (stating that Nebraska's corollary to West Virginia Rule of Evidence 1101(b)(3) provides that Nebraska Evidence Rules "do not apply to proceedings for the granting or revoking of probation").

We agree with the State's position that pursuant to the clear language of Rule 1101(b)(3), the provisions of this state's rules of evidence are not applicable during criminal proceedings that involve probation revocation. Thus, Rule 410, as well as the other evidentiary rules, do not apply to a probation revocation proceeding. Accordingly, we affirm the decision of the Circuit Court of Tucker County.²

State v. Evans

Appellant Robert Vaughn Evans ("Evans") was found guilty of burglary and petit larceny on August 5, 1996. Based on his five prior felony convictions,³ the State filed a recidivist information against Evans under West Virginia Code §§ 61-11-18⁴ and -19⁵ (1997). Following a trial on the recidivist charges wherein the jury concluded that Evans was the same individual who had been convicted for each of the five prior felonies, the trial court held a hearing on October 21, 1996, to sentence Evans on the recidivist charges. At this hearing, the trial court heard evidence regarding the circumstances surrounding Evans' burglary and other prior felony convictions and sentenced Evans to life in prison with the possibility of parole.

On appeal, Evans argues that the trial court committed error during the recidivist sentencing proceeding by considering his conviction for escape and resisting an officer with violence.⁶ He contends that his plea of nolo contendere to that charge precludes consideration of that conviction during the recidivist proceeding based on Rule 11(e)(6)(B) of the West Virginia Rules of Criminal Procedure. That rule provides that: "Inadmissibility of pleas, plea discussions, and related statements.—Except as otherwise provided in this paragraph⁷ evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions: ... (B) A plea of nolo contendere[.]" W.Va.R.Crim. P. 11(e)(6)(B) (footnote added). Through this appeal, Evans seeks a new sentencing hearing wherein the trial court would be precluded from considering his plea and conviction to the escape and resisting with violence charge.

In support of its position that the trial court did not err in considering Evans' convictions for escape and resisting an officer at his recidivist sentencing hearing, the State argues that because a conviction is the triggering event for enhanced sentencing under West Virginia Code § 61-11-18, the nature of the plea which precedes the conviction is immaterial. The language of the recidivist statute makes clear that enhanced sentencing is mandated based on prior "convict[ion] of an offense punishable by confinement in the penitentiary." W.Va.Code § 61-11-18(c) (emphasis supplied). Through its selection of the term "conviction," the State contends that the Legislature resolved that the plea or proof of facts underlying the conviction are not relevant for purposes of sentence enhancement. See W.Va.Code §§ 61-11-18, -19.

Long before this state adopted rules of evidence, convictions, rather than pleas, were recognized by this Court in syllabus point two of State v. Moss, 108 W.Va. 692, 152 S.E. 749 (1930), as the critical factor for sentence enhancement:

Where an indictment properly charges a conviction of a first offense as a basis for a superimposed penalty for a second offense therein charged, the record of the first conviction and sentence thereunder, as charged, is sufficient, without respect to defendant's plea in the first conviction, whether guilty, not guilty, or nolo contendere.

The Court clarified further in Moss that "[t]he conviction makes the offense, and it is immaterial whether the plea was guilty, not guilty or nolo contendere...[;] [i]t is the conviction which controls, not the plea interposed." Id. at 696, 152 S.E. at 750-51; accord Lott v. U.S., 367 U.S. 421, 426, 81 S.Ct. 1563, 6 L.Ed.2d 940 (1961)

(holding that "it was the judgment of conviction and sentence, not the tender and acceptance of the pleas of nolo contendere, that constituted the `determination of guilt'").

Recently, this Court commented in University of West Virginia Board of Trustees ex rel. West Virginia University v. Fox, 197 W.Va. 91, 475 S.E.2d 91 (1996), that "where the issue is whether or not a person has been previously `convicted,' a judgment of conviction based upon a nolo contendere plea may indeed be admitted into evidence to litigate that issue." The Court further opined in Fox that "[s]uch [use] might be applicable where a statute attached an enhanced criminal penalty for successive offenses...." Id. at 96, 475 S.E.2d 91. This view is consonant with the majority position of federal and state court decisions to permit convictions based on nolo pleas to be used for recidivistic sentencing purposes. See State v. Marquez, 105 N.M. 269, 731 P.2d 965, 968 (Ct.App.1986),

cert. denied, 105 N.M. 211, 730 P.2d 1193 (1987) (holding that "a prior conviction resulting from a nolo contendere plea can be used to enhance a sentence under the habitual criminal statute" and observing that this is "the rule followed by the clear majority of other jurisdictions"); accord Pryor v. State, 314 Ark. 212, 861 S.W.2d 544, 547 (Ark.1993); People v. Windsor, 876 P.2d 55, 58 (Colo. App.1993); James v. State, 209 Ga.App. 389, 433 S.E.2d 700, 701 (Ga.Ct.App.1993); State v. Shaffer, 14 Kan.App.2d 282, 788 P.2d 1341, 1343 (Kan.Ct.App.1990); State v. Ondrak, 212 Neb. 840, 326 N.W.2d 188, 190 (Neb. 1982); People v. Goodwin, 197 Colo. 47, 593 P.2d 326, 328 (Colo.1979).⁸ Frequently cited as support for using convictions resulting from nolo pleas for enhanced sentencing is the advisory committee note to the 1975 amendment to Rule 11 of the Federal Rules of Criminal Procedure, wherein the committee observes that "[a] plea of nolo contendere is, for purposes of punishment, the same as a plea of guilty," and, therefore, "[a] judgment upon [such]...