State v. Jones

• Decision Date: 26 June 1992
• Docket Number: No. 20657,20657
• Citation: State v. Jones, 420 S.E.2d 736, 187 W.Va. 600 (W. Va. 1992)
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. William JONES, Defendant Below, Appellant.

Page 736

420 S.E.2d 736

187 W.Va. 600

STATE of West Virginia, Plaintiff Below, Appellee, v.William JONES, Defendant Below, Appellant.

No. 20657.

Supreme Court of Appeals of West Virginia.

Submitted April 29, 1992.

Decided June 26, 1992.

Syllabus by the Court

1." 'Habitual criminal proceedings providing for enhanced or additional punishment on proof of one or more prior convictions are wholly statutory.In such proceedings, a court has no inherent or common law power or jurisdiction.Being in derogation of the common law, such statutes are generally held to require a strict construction in favor of the prisoner.'State ex rel. Ringer v. Boles, 151 W.Va. 864, 871, 157 S.E.2d 554, 558(1967)."Syllabus Point 2, Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205(1981).

2.In the absence of any provision in the habitual criminal or recidivist statutesW.Va.Code, 61-11-18(1943), andW.Va.Code, 61-11-19(1943), the remoteness of the prior convictions sought to be used in a recidivist trial need not be considered.

3.The primary purpose of our recidivist statutes, W.Va.Code, 61-11-18(1943), andW.Va.Code, 61-11-19(1943), is to deter felony offenders, meaning persons who have been convicted and sentenced previously on a penitentiary offense, from committing subsequent felony offenses.The statute is directed at persons who persist in criminality after having been convicted and sentenced once or twice, as the case may be, on a penitentiary offense.

4.In the absence of a statute to the contrary, a life recidivist proceeding is not conditioned upon the State's prior utilization of the five-year recidivist enhancement provision in W.Va.Code, 61-11-18(1943).

5." 'The appropriateness of a life recidivist sentence under our constitutional proportionality provision found in Article III, Section 5[of the West Virginia Constitution], 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 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.'Syl. Pt. 7, State v. Beck, 167 W.Va. 830, 286 S.E.2d 234(1981)."Syllabus Point 2, State v. Housden, 184 W.Va. 171, 399 S.E.2d 882(1990).

6."An interval of one day or less between the appointment of counsel and trial or the entry of a guilty plea raises a rebuttable presumption that the defendant was denied effective assistance of counsel and shifts the burden of persuasion to the state."Syllabus Point 1, Housden v. Leverette, 161 W.Va. 324, 241 S.E.2d 810(1978).

7.Where more than the statutory number of prior convictions have been proved at the recidivist trial, the excess proof is surplusage and does not affect the validity of the life recidivist conviction.

Michael J. Basile, Asst. Atty. Gen., Charleston, for appellee.

William B. Carey, Berkeley Springs, for appellant.

MILLER, Justice:

The defendant, William Jones, appeals his sentence of life imprisonment under our habitual criminal statute, W.Va.Code, 61-11-18(1943).He raises several assignments of error with regard to his recidivist conviction, but we find no merit in them and, thus, affirm the conviction.

Mr. Jones was convicted by a Morgan County jury of making threats to kidnap and demand ransom under W.Va.Code, 61-2-14c.¹This conviction arose from an incident in the defendant's home when he held an appliance repairman at gunpoint because the repairman was unable to fix Mr. Jones' stove to his satisfaction.²

Following the jury verdict, the prosecutor filed an habitual offender information, citing four prior convictions for crimes committed under the name of William McGurgan: (1) a 1974 conviction in the United States District Court for the Northern District of Virginia for possession of a firearm by a felon; (2) a 1977 conviction in the Circuit Court of King George County Virginia, for grand larceny; (3) a 1980 conviction in the Circuit Court of Fairfax County, Virginia, for burglary, and (4) a 1981 conviction in the Circuit Court of Fairfax County, Virginia, for grand larceny.

The jury found that Mr. Jones was the same person as William McGurgan, who was convicted of grand larceny in 1977, burglary in 1980, and grand larceny in 1981.³As a result, Mr. Jones was sentenced to life imprisonment as an habitual offender.

I.

As his first assignment of error, Mr. Jones contends that his 1977 conviction for grand larceny was too remote in time to serve as the basis for the recidivist sentence.We note initially our traditional rule with regard to recidivist proceedings, which is stated in Syllabus Point 2 of Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205(1981):

" 'Habitual criminal proceedings providing for enhanced or additional punishment on proof of one or more prior convictions are wholly statutory.In such proceedings, a court has no inherent or common law power or jurisdiction.Being in derogation of the common law, such statutes are generally held to require a strict construction in favor of the prisoner.'State ex rel. Ringer v. Boles, 151 W.Va. 864, 871, 157 S.E.2d 554, 558(1967)."

Our statute makes no mention of a time limitation on the use of prior convictions.W.Va.Code, 61-11-18, states simply that a life sentence shall be imposed "[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[.]"⁴

We are cited State v. Miller, 184 W.Va. 462, 400 S.E.2d 897(1990), for the proposition that a series of felonies occurring over a twenty-five year period is not within the contemplation of the drafters of the statute.In that case, however, the reversal of the life sentence was based upon the nature of the crimes, not the span of time between them.The Court merely noted that, in addition to the nonviolent nature of the underlying felonies, a significant amount of time had passed between the initial offense and the offense which triggered the recidivist proceeding.

Although we have not had occasion to address this issue, we have upheld the imposition of recidivist life sentences in cases where the prior convictions had occurred over longer time periods than the eleven-year-period involved here.See, e.g., State v. Housden, 184 W.Va. 171, 399 S.E.2d 882(1990)(twenty-year time period);State v. Oxier, 179 W.Va. 431, 369 S.E.2d 866(1988)(seventeen-year time period).

The general rule appears to be that in the absence of any provision in the habitual criminal or recidivist statutes, the remoteness of the prior conviction sought to be used in a recidivist trial need not be considered.⁵See, e.g., Palmer v. State, 199 Kan. 73, 427 P.2d 492(1967);Pace v. State, 407 So.2d 530(Miss.1981);State v. Bevelle, 527 S.W.2d 657(Mo.App.1975);Hicks v. State, 545 S.W.2d 805(Tex.Crim.App.1977).Cf.Wise v. State, 272 Ind. 498, 400 N.E.2d 114(1980)(statute of limitations on prior felony has no bearing on use of the conviction for recidivist purposes).See generally39 Am.Jur.2dHabitual Criminals & Subsequent Offenders§ 6(1968).

Common sense would dictate that the age of a prior conviction should have little bearing in a recidivist proceeding, when the underlying purpose of the statute is considered.In speaking of the purpose of our recidivist statute in State v. McMannis, 161 W.Va. 437, 441, 242 S.E.2d 571, 574-75(1978), we said:

"The teaching of our case law is that the primary purpose of the statute is to deter felony offenders, meaning persons who have been convicted and sentenced previously on a penitentiary offense, from committing subsequent felony offenses.The statute is directed at persons who persist in criminality after having been convicted and sentenced once or twice, as the case may be, on a penitentiary offense."(Footnote omitted).

See alsoState v. Stover, 179 W.Va. 338, 368 S.E.2d 308(1988);State v. Adkins, 168 W.Va. 330, 284 S.E.2d 619(1981).

Obviously, when the life recidivist statute is invoked, the defendant will have at least two prior felony convictions.If they are serious felonies, the defendant will have served lengthy prison sentences.This means that at the time of the life recidivist trial, one or more of the earlier convictions may be rather old.Yet, the deterrent purpose of the recidivist statute would hardly be served if earlier felony convictions could be excluded because of their ages.

II.

The second assignment of error also involves a construction of our recidivist statute.Mr. Jones contends that it was improper for the sentencing judge to impose a life sentence because Mr. Jones had not first received an initial sentence enhancement of five years.

There is no requirement under our recidivist statute, W.Va.Code, 61-11-18, that before a life recidivist proceeding can be invoked, the State must have utilized its five-year enhancement proceeding.⁶This latter proceeding is available when a defendant is convicted of a felony and has one prior felony conviction.If this procedure is successfully invoked, a five-year sentence enhancement may then be added to the sentence for the second felony conviction.

Moreover, the procedural section of our recidivist statute, W.Va.Code, 61-11-19(1943), ⁷ contains no clear guidance on this point.Indeed, it might be said that because this section applies to both the five-year enhancement procedure and the life recidivist procedure, there was no intent on the part of the legislature to make a conviction for recidivism carrying a five-year sentence enhancement a predicate to imposition of a life sentence for recidivism.

The defendant's argument that the five-year enhancement is a necessary predicate to imposition of the life...