State v. Hoyle, No. 18-0141

• Court: Supreme Court of West Virginia
• Writing for the Court: WALKER, Chief Justice
• Citation: 242 W.Va. 599,836 S.E.2d 817
• Parties: STATE of West Virginia, Plaintiff Below, Respondent v. John Henry HOYLE, Defendant Below, Petitioner
• Decision Date: 22 November 2019
• Docket Number: No. 18-0141

242 W.Va. 599
836 S.E.2d 817

STATE of West Virginia, Plaintiff Below, Respondent
v.
John Henry HOYLE, Defendant Below, Petitioner

No. 18-0141

Supreme Court of Appeals of West Virginia.

Submitted: October 2, 2019
Filed: November 22, 2019

Jeremy B. Cooper, Esq., Blackwater Law PLLC, Kingwood, West Virginia and James E. Hawkins, Jr., Esq., Buckhannon, West Virginia, Counsel for Petitioner

Patrick Morrisey, Esq., Attorney General, Holly M. Flanigan, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for Respondent

WALKER, Chief Justice:

836 S.E.2d 822

When John Henry Hoyle was convicted of second offense failure to register as a sex offender in 2015, he was sentenced to ten to twenty-five years in prison for that offense and, because of his prior felony convictions, he received a recidivist life sentence under West Virginia Code § 61-11-18(c). On appeal, Mr. Hoyle challenges his conviction under the West Virginia Sex Offender Registration Act (Act)¹ on the grounds that the State failed to prove that he violated the statutory registration requirements and that the trial court incorrectly instructed the jury that time was not of the essence of the alleged offense. He also claims that his ten- to twenty-five-year sentence for second offense failure to register and his recidivist life sentence are unconstitutionally disproportionate. While we affirm the circuit court's denial of Mr. Hoyle's motions for acquittal based on the sufficiency of the evidence and the contested jury instruction and his challenge to the ten-to twenty-five-year sentence, we reverse the circuit court's imposition of a recidivist life sentence.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1987, Mr. Hoyle was charged with two felonies arising from the same transaction:

836 S.E.2d 823

(1) Sexual Assault in the Second Degree in Barbour County, West Virginia,² and (2) kidnapping in Upshur County, West Virginia.³ Eventually, Mr. Hoyle pleaded guilty to both charges in a single plea agreement. He was sentenced to incarceration for ten to twenty years for sexual assault and thirty years for kidnapping. These sentences were ordered to run concurrently. After serving fifteen and one-half years, Mr. Hoyle was released in 2002. As a result of the sexual assault conviction, Mr. Hoyle was required to register as a sexual offender for life.⁴

In 2008, Mr. Hoyle pleaded guilty in the Circuit Court of Randolph County to first offense failure to register as a sexual offender under West Virginia Code § 15-12-8(c). The circuit court sentenced Mr. Hoyle to one to five years' incarceration.⁵ This time, upon his release, Mr. Hoyle properly registered as a sex offender. Importantly, Mr. Hoyle listed only one telephone number in the registry, a cell phone registered as (304) 6**-5***.

For a time, Mr. Hoyle fulfilled his registry requirements and submitted to annual reviews. But on October 27, 2014, Mr. Hoyle was indicted by a Randolph County grand jury for two counts of second offense failure to register as a sex offender or provide notice of registration changes under West Virginia Code § 15-12-8(c). The indictment charged that Mr. Hoyle

on or about September 23, 2014, [...] did unlawfully and feloniously and knowingly refuse to provide accurate information when so required by the terms of this article, or did knowingly fail to register, or did knowingly fail to provide a change in required information, as a person required to register for life pursuant to this article[.]

At the trial for these charges on September 16, 2015, the testimony of State Police Deputy David VanMeter and State Police Trooper James Cornelius established the following facts.

On July 22, 2014, Deputy VanMeter attempted to contact Mr. Hoyle by calling his phone number as listed in the sex offender registry database, but received an automated voice message informing him that the phone number was no longer in service.⁶ Deputy VanMeter then visited Mr. Hoyle's home to attempt contact, but Mr. Hoyle was not there. Later in the day, a neighbor informed Mr. Hoyle that the State Police had been at his home, so Mr. Hoyle visited the State Police detachment in Elkins, West Virginia, to follow up. After Deputy VanMeter inquired about the out-of-service phone, Mr. Hoyle stated that he had not used that phone for months⁷ and that, instead, he used his wife's phone. Mr. Hoyle gave his wife's phone number to Deputy VanMeter, and when Deputy VanMeter later called that number, Mr. Hoyle answered. Deputy VanMeter did not investigate the discrepancies in Mr. Hoyle's registry because he lacked jurisdiction to do so. However, after completing an unrelated investigation, Deputy VanMeter sent a letter to Trooper Cornelius on September 22, 2014, stating that Mr. Hoyle's registry information appeared to be incorrect.

Trooper Cornelius, unlike Deputy VanMeter, had authority to investigate sex offender registry matters. He testified that, after receiving Deputy VanMeter's letter, he opened an investigation into whether Mr. Hoyle had, in fact, failed to update his sex offender registry information. Trooper Cornelius testified that this investigation uncovered that

836 S.E.2d 824

Mr. Hoyle had failed to update his registry information because he neither removed the out-of-service phone number nor added the phone number that he told Deputy VanMeter he was currently using. As a result of Trooper Cornelius's investigation, a grand jury indicted Mr. Hoyle on two counts of failing to update his sex offender registry information for (1) failing to remove a phone number that was no longer in service, and (2) failing to register a phone number (his wife's) that he had used.

After the presentation of evidence at trial, Mr. Hoyle objected to the inclusion of one of the proposed jury instructions related to a variance between the date on which the indictment alleged the crime occurred and the evidence presented at trial. The circuit court determined the instruction was proper and delivered it over Mr. Hoyle's objection. The jury deliberated briefly and returned a guilty verdict on both charges.

Before sentencing, the State filed a recidivist information noting its intention to pursue a recidivist life sentence under West Virginia Code § 61-11-18(c) because the 2015 failure-to-update conviction was Mr. Hoyle's third felony conviction. In response to this filing, Mr. Hoyle filed motions in the circuit courts of Barbour, Upshur, and Randolph Counties to retract his prior guilty pleas. With regard to the 1988 convictions, Mr. Hoyle argued that he would not have pled guilty had the Act been enacted at the time. With regard to the 2008 conviction, he argued that, because the Act did not exist for purposes of his prior convictions, he should not have been required to register at all, thus rendering his 2008 conviction void. Mr. Hoyle's motions to retract the 1988 and 2008 guilty pleas were denied, so the State pursued the recidivist sentence in addition to the second offense failure-to-update sentence.

On May 22, 2017, the Circuit Court of Randolph County sentenced Mr. Hoyle to the statutory term of ten to twenty-five years for second offense failure to register. The circuit court also determined that Mr. Hoyle had been convicted of the following three felonies for purposes of the recidivism statute: (1) kidnapping and sexual assault in the second degree, (2) first offense failure to register, and (3) second offense failure to register. Having made that determination, the circuit court sentenced Mr. Hoyle to incarceration for life under the recidivist statute,⁸ with that sentence to run consecutive to the ten to twenty-five years for failure to update. It is from these convictions that Mr. Hoyle appeals to this Court.

II. STANDARD OF REVIEW

Because Mr. Hoyle alleges multiple errors to which we apply different standards of review, we set out the particular standard of review of each issue, or group of similar issues, in connection with our discussion of them.

III. DISCUSSION

Mr. Hoyle raises several alleged errors on appeal. First, as to his conviction for second offense failure to update, he contends that the trial court erred in denying his motions for acquittal because: (1) there is an ambiguity in the phrase "has or uses" in West Virginia Code § 15-12-2(d)(9) ; and (2) even if there is no ambiguity, the State failed to meet its burden of proof with regard to his alleged violations. Second, he asserts that the trial court erred in instructing the jury that time was not of the essence with regard to a variance in the date alleged in his criminal indictment and the evidence presented at trial. Third, he asserts that his ten- to twenty-five-year sentence under West Virginia Code § 15-12-8(c) is unconstitutionally disproportionate. Finally, he asserts that his life sentence under the recidivist statute, West Virginia Code § 61-11-18(c), is unconstitutionally disproportionate. We address each of these arguments in turn.

A. Denial of the Motions for Acquittal

Mr. Hoyle alleges that the trial court erred in denying his motions for acquittal based on statutory ambiguity and,...