State v. Ingram, 111920 WVSC, 19-0016

Docket Nº:19-0016
Party Name:State of West Virginia, Plaintiff Below, Respondent v. David L. Ingram, Defendant Below, Petitioner
Judge Panel:CONCURRED IN BY: Justice Margaret L. Workman, Justice Evan H. Jenkins, Justice John A. Hutchison CONCURRING BUT WRITING SEPARATELY: Chief Justice Tim Armstead Chief Justice Armstead concurring: DISSENTING: Justice Elizabeth D. Walker WALKER, J., dissenting.
Case Date:November 19, 2020
Court:Supreme Court of Appeals of West Virginia

State of West Virginia, Plaintiff Below, Respondent

v.

David L. Ingram, Defendant Below, Petitioner

No. 19-0016

Supreme Court of Appeals of West Virginia

November 19, 2020

Fayette County 18-F-28 and 18-F-163

MEMORANDUM DECISION

Petitioner David L. Ingram, by counsel, Matthew Brummond, appeals from an order of the Circuit Court of Fayette County entered on December 10, 2018, sentencing him upon his conviction of one count of delivery of cocaine, a Schedule II narcotic, and one count of delivery of methamphetamine, a Schedule II narcotic, in violation of West Virginia Code § 60A-4-401 (2020). The State of West Virginia, by counsel, Gordon L. Mowen, II and Mary Beth Niday, filed a response. On appeal, Petitioner challenges the validity of his sentence, contending that under the facts and circumstances of this case, a sentence of life imprisonment with mercy imposed pursuant to West Virginia Code § 61-11-18(c) (2000), [1] our recidivist statute, is constitutionally disproportionate to the offenses.

After considering the parties' written and oral arguments, as well as the record on appeal and the applicable law, this Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

The facts of this case are straightforward. On April 12, 2017, a confidential informant (hereinafter "the CI"), cooperating with the Oak Hill Police Department and the Central West Virginia Drug Task Force in exchange for a non-prosecution agreement on drug-related charges, purchased 0.383 grams of cocaine from Petitioner for fifty dollars. The purchase took place inside Petitioner's home at Shiloh Mobile Home Park in Fayette County, West Virginia, and the CI was equipped with a camera at the time of the transaction. Thereafter, on April 18, 2017, the CI purchased 0.510 grams of methamphetamine from Petitioner for sixty dollars. This purchase took place inside Petitioner's vehicle, which was located in the parking lot at the Dollar Tree in Oak Hill, Fayette County, West Virginia, and the CI was equipped with a recording device at the time of the transaction.

On January 10, 2018, Petitioner was indicted on two charges, delivery of cocaine and delivery of methamphetamine, both Schedule II controlled substances, in violation of West Virginia Code § 60A-4-401. On August 31, 2018, at the conclusion of a one-day trial, Petitioner was convicted on both counts in the indictment. Four days later, on September 4, 2018, the State filed a Recidivist Information and an Amended Recidivist Information2 alleging that Petitioner had previously been convicted of two felonies: non-aggravated robbery, which offense took place in 1997, and attempt to commit third offense shoplifting, which offense took place in 2015.

On October 1, 2018, the circuit court held a hearing on what it had expected to be Petitioner's "admission to this [recidivist] information filed by the State of West Virginia alleging that Mr. Ingram is a twice convicted felon." However, the parties presented an agreement that had been reached between them, specifically: Petitioner would admit to having previously been convicted of attempted third-offense shoplifting, a nonviolent felony, and in return, the State would not seek a life sentence pursuant to West Virginia Code § 61-11-18(c), but rather would seek to have the minimum term of Petitioner's indeterminate sentence doubled pursuant to subsection (a) of the statute.[3] After hearing the argument of the parties, the court refused, in no uncertain terms, to accept the agreement. I don't see this as in the interest of public justice. Unless there's some reason, the courthouse records burned up there and nobody can find them or whatever. And I can see why the defendant would jump all over this. I was under the impression when my secretary said this was schedule[d] that he was going to enter an admission to both of those. And to enter admissions to the least offensive was, you know. Ms. Fraley has done an excellent job of selling whatever she sold to Ms. Campbell. The problem is the Court's not buying it. So the jury trial will continue. The agreement is rejected by the Court as not being in the interest of public justice.

Accordingly, the recidivist trial was rescheduled and on October 24, 2018, the jury found that Petitioner was the individual previously convicted of both non-aggravated robbery and attempted third-offense shoplifting.

On December 10, 2018, a sentencing hearing was held. Petitioner conceded that his 1997 offense, non-aggravated robbery, had involved a threat of force and was therefore a "qualifying offense" under the recidivist statute, 4 but urged the circuit court to consider the fact that the offense had occurred twenty-one years earlier, at a time when Petitioner was only eighteen years old. As for the charges of delivery of cocaine and methamphetamine (hereinafter "the triggering offenses"), [5] Petitioner argued that neither of these controlled buys had involved actual or threatened violence, and that a recidivist sentence would therefore violate the proportionality principle set forth in article III, section 5 of the West Virginia Constitution. The circuit court rejected these arguments. After hearing the argument of counsel and Petitioner's allocution, the circuit court noted Petitioner's lack of cooperation in providing information for the presentence report, his lack of remorse, and his extensive criminal history, which included twenty-six offenses spanning the course of twenty years.6 The court further noted that "based on the phone records from the Southern Regional Jail . . . [t]his defendant's family did everything they could, short of killing this confidential informant, to keep her from coming to trial." Additionally, the court noted that Petitioner had been an addict for a number of years and "[d]oesn't appear to have taken any steps to get clean from drugs." Finally, the court found that the triggering offenses, delivery of cocaine and methamphetamine, "are considered violent or potentially violent by this Court." Accordingly, the court sentenced Petitioner to life with mercy on Count One of the Indictment, delivery of cocaine, and one-to-five years' imprisonment on Count Two, delivery of methamphetamine, said sentences to be served consecutively. The court also imposed a fine of $1, 000.00, together with all court costs.

"'"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)." Syl. Pt. 1, State v. Kilmer, 240 W.Va. 185, 808 S.E.2d 867 (2017).

In analyzing Petitioner's challenge to his sentence, we begin with the text of West Virginia Code § 61-11-18(c), which provided in relevant part that "[w]hen it is determined . . . that such person shall have been twice before convicted in the United States of a crime punishable by confinement in a penitentiary, the person shall be sentenced to be confined in the state correctional facility for life." Petitioner contends that under the facts and circumstances of this case, a sentence of life imprisonment with the possibility of parole in fifteen years violates the proportionality clause of the West Virginia Constitution, article 3, section 5. In this regard, Petitioner stresses the following facts with respect to the triggering offenses: that the drug sales in question were controlled buys, set up by law enforcement authorities; that the sales were of very small quantities of drugs, and involved very small amounts of money; that the sales took place in confined spaces, a trailer and a vehicle, where there could be no unanticipated problems created by outside forces; and that there was no actual violence and no overt threat of violence in either transaction. With respect to the underlying felony, non-aggravated robbery, which Petitioner concedes involved the threat of violence, he stresses that the conviction was too remote to indicate an ongoing propensity for violence;7 that he was only eighteen years old at the time of commission of the offense; and that his only role in the robbery was driving the getaway car.

Until recently, this Court's proportionality jurisprudence followed a linear path forward from the seminal case of Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981), until we came to a fork in the road - and seemingly veered off in two separate directions. In Wanstreet, we first acknowledged that West Virginia's recidivist statute, which has been deemed to be "among the most draconian in the nation,"

id. at 536, 276 S.E.2d at 213 (citations omitted), has been upheld by this Court on numerous occasions against both state and federal constitutional challenge. See, e.g., State v. Vance, 164 W.Va. 216, 262 S.E.2d 423 (1980). However, after cataloguing the many cases in which we have vacated individual recidivist sentences on both substantive and procedural grounds, we affirmed our longstanding adherence to the principle that the statute should be applied "in a restrictive fashion in order to mitigate its harshness." Wanstreet, 166 W.Va. at 528, 276 S.E.2d at 209.

Following our decision in Wanstreet, this Court decided State v. Cooper, 172 W.Va. 266, 304 S.E.2d 851 (1983), in which we explained that "[t]here are two tests to determine whether a sentence is so disproportionate to a crime that it violates our constitution. The first is subjective and asks whether the sentence for the particular crime shocks...

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