State v. Hargus
| Decision Date | 14 November 2013 |
| Docket Number | Nos. 12–0513,12–0833.,s. 12–0513 |
| Citation | 753 S.E.2d 893,232 W.Va. 735 |
| Parties | STATE of West Virginia, Plaintiff Below, Respondent v. Gabriel HARGUS, Defendant Below, Petitioner. and State of West Virginia, Plaintiff Below, Respondent v. Robert Lee Lester, Defendant Below, Petitioner. |
| Court | West Virginia Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court
1. “When the constitutionality of a statute is questioned every reasonable construction of the statute must be resorted to by a court in order to sustain constitutionality, and any doubt must be resolved in favor of the constitutionality of the legislative enactment.” Syl. pt. 3, Willis v. O'Brien, 151 W.Va. 628, 153 S.E.2d 178 (1967).
2. “West Virginia Code § 62–12–26 (2009) is not facially unconstitutional on cruel and unusual punishment grounds in contravention of the Eighth Amendment to the United States Constitution or Article III, § 5 of the West Virginia Constitution.” Syl. pt. 6, State v. James, 227 W.Va. 407, 710 S.E.2d 98 (2011).
3. Syl. pt. 9, State v. James, 227 W.Va. 407, 710 S.E.2d 98 (2011).
4. “The imposition of the legislatively mandated additional punishment of a period of supervised release as an inherent part of the sentencing scheme for certain offenses enumerated in West Virginia Code § 62–12–26 (2009) does not on its face violate the double jeopardy provisions contained in either the United States Constitution or the West Virginia Constitution.” Syl. pt. 11, State v. James, 227 W.Va. 407, 710 S.E.2d 98 (2011).
5. West Virginia Code § 62–12–26(g)(3) (2011) does not facially violate procedural due process principles of the Fourteenth Amendment to the Constitution of the United States or Article III, § 10 of the Constitution of West Virginia.
6. West Virginia Code § 62–12–26 (2011), which provides for a period of extended supervision for certain sex offenders, does not violate the equal protection guarantees in the Fourteenth Amendment to the United States Constitution or Article III, § 10 of the Constitution of West Virginia.
7. West Virginia Code § 62–12–26(g)(3) (2011), which provides for additional sanctions, including incarceration, upon revocation of a criminal defendant's period of supervised release, does not violate the prohibition against double jeopardy found in the Fifth Amendment of the United States Constitution and Article III, § 5 of the Constitution of West Virginia.
8. “A criminal sentence may be so long as to violate the proportionality principle implicit in the cruel and unusual punishment clause of the Eighth Amendment to the United States Constitution.” Syl. pt. 7, State v. Vance, 164 W.Va. 216, 262 S.E.2d 423 (1980).
9. “Punishment may be constitutionally impermissible, although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity, thereby violating West Virginia Constitution, Article III, Section 5 that prohibits a penalty that is not proportionate to the character and degree of an offense.” Syl. pt. 5, State v. Cooper, 172 W.Va. 266, 304 S.E.2d 851 (1983).
10. “In determining whether a given sentence violates the proportionality principle found in Article III, Section 5 of the West Virginia Constitution, consideration is given to the nature of the offense, the legislative purpose behind the punishment, a comparison of the punishment with what would be inflicted in other jurisdictions, and a comparison with other offenses within the same jurisdiction.” Syl. pt. 5, Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981).
11. “To trigger application of the ‘plain error’ doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Syl. pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).
12. Syl. pt. 5, Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966).
Lori M. Peters, Esq., Assistant Public Defender, Kanawha County Public Defender's Office, Charleston, WV, for Petitioner Hargus.
Duane C. Roselieb, Jr., Esq., WV Public Defender Services, Charleston, WV, and Randy R. Goodrich, Esq., Kingwood, WV, for Petitioner Lester.
Patrick Morrisey, Esq., Attorney General, Laura Young, Esq., Assistant Attorney General, Charleston, WV, for the State.
William C. Means, Esq., Senior Assistant Prosecuting Attorney of Preston County, Kingwood, WV, for the State.
The two appeals in this case have been consolidated for purposes of argument, consideration, and decision. In both appeals, the petitioners raise constitutional challenges to the revocation of supervised release and the additional sanctions imposed pursuant to W. Va.Code § 62–12–26(g)(3) (2011), which is the extended supervision statute for certain sex offenders. After careful consideration of the parties' arguments and the relevant portions of the appendices, we affirm.1
This Court relates the particular facts of each case separately below.
In February 2011, Petitioner Gabriel Hargus pled guilty to one count of possession of materials depicting a minor engaged in sexually explicit conduct. The Circuit Court of Kanawha County sentenced him to two years of incarceration, a period of thirty years extended supervision, and lifetime registration as a sex offender under W. Va.Code § 62–12–26.
Subsequently, the State alleged that Mr. Hargus failed to register as a sex offender. By order dated March 15, 2012, the Circuit Court of Kanawha County found, following a full hearing, that Mr. Hargus violated a condition of his supervised release by (1) failing to provide his alias name of “Ethan Stone” to the West Virginia State Police, (2) failing to provide his social security number, and (3) intentionally providing a false date of birth. As a result, the circuit court modified Mr. Hargus's supervised release, ordering Mr. Hargus to serve five years, of his thirty years of supervised release incarcerated in the penitentiary, and once released from the penitentiary, to be on supervised release for another 25 years. Additionally, the circuit court ruled that Mr. Hargus shall not reside in a residence with a computer.
Mr. Hargus now raises several challenges to the circuit court's March 15, 2012, order.
Petitioner Robert Lee Lester was sentenced to one to five years for the offense of third degree sexual assault and a consecutive 90–day sentence for the offense of third degree sexual abuse. Also, he was sentenced to a period of ten years of extended supervision under W. Va.Code § 62–12–26. Mr. Lester ultimately discharged the one to five year and 90–day sentences.
Thereafter, Mr. Lester admitted that he had contact, including sexual intercourse, with the victim in the underlying case in knowing violation of a sex offender condition.2 As a result, the Circuit Court of Preston County, by order of June 5, 2012, ordered the modification of Mr. Lester's supervision requiring Mr. Lester to serve two years of incarceration of his ten years of supervised release. The circuit court further ruled that Mr. Lester shall, upon release from his incarceration, serve the balance of his period of supervised release.
Like Mr. Hargus, Mr. Lester now challenges the modification of his supervised release.
In these appeals, the primary issue is the constitutionality of the portion of W. Va.Code § 62–12–26 that permits the revocation of supervised release and additional incarceration when a sex offender violates a condition of supervised release. This Court previously has held that “[t]he constitutionality of a statute is a question of law which this Court reviews de novo.” Syl. pt. 1, State v. Rutherford, 223 W.Va. 1, 672 S.E.2d 137 (2008). Additionally, “[w]hen the constitutionality of a statute is questioned every reasonable construction of the statute must be resorted to by a court in order to sustain constitutionality, and any doubt must be resolved in favor of the constitutionality of the legislative enactment.” Syl. pt. 3, Willis v. O'Brien, 151 W.Va. 628, 153 S.E.2d 178 (1967).
The petitioners in this case were sentenced pursuant to W. Va.Code § 62–12–26, which provides for extended supervision of certain sex offenders. This Court previously has explained that “[f]undamentally, the statute provides that a court impose a period of extended supervision as part of the criminal sentence for certain specified offenses, and sets forth the manner in which the supervision is to be administered and enforced.” State v. James, 227 W.Va. 407, 414, 710 S.E.2d 98, 105 (2011). Subsection (a) of the statute explains its general operation as follows:
Notwithstanding any other provision of this code to the contrary, any defendant convicted after the effective date of this section of a violation of section twelve [§ 61–8–12], article eight, chapter sixty-one of this code or a felony violation of the provisions of article eight-b [§§ 61–8B–1 et seq.], eight-c [§§ 61–8C–1 et seq.] or eight-d [§§ 61–8D–1 et seq.] of said chapter shall, as part of the sentence imposed at final...
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