State v. Rutherford

• Decision Date: 02 December 2008
• Docket Number: No. 33828.,33828.
• Citation: 672 S.E.2d 137
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Earl Monty RUTHERFORD, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

672 S.E.2d 137

STATE of West Virginia, Plaintiff Below, Appellee, v. Earl Monty RUTHERFORD, Defendant Below, Appellant.

No. 33828.

Supreme Court of Appeals of West Virginia.

Submitted: September 23, 2008.

Decided: December 2, 2008.

Syllabus by the Court

1. The constitutionality of a statute is a question of law which this Court reviews de novo.

2. "In considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches. Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question. Courts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond reasonable doubt." Syllabus Point 1, State ex rel. Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965).

3. "The provisions of the Constitution of the State of West Virginia may, in certain instances, require higher standards of protection than afforded by the Federal Constitution." Syllabus Point 2, Pauley v. Kelly, 162 W.Va. 672, 255 S.E.2d 859 (1979).

4. West Virginia Code § 60A-4-408 (1971), which permits sentencing enhancement for certain repeat drug offenders based solely on the fact of a previous drug conviction, does not violate the due process protections found in Article III, § 10 of the West Virginia Constitution.

Darrell V. McGraw, Jr., Esq., Attorney General, Barbara H. Allen, Esq., Managing Deputy Attorney General, Charleston, for the State.

Mark P. Chaksupa, Esq., Douglas V. Reynolds, Esq., Reynolds & Associates, Huntington, for Earl Monty Rutherford.

MAYNARD, Chief Justice.¹

The appellant and defendant below, Earl Monty Rutherford, appeals his sentence for delivery of crack cocaine which was enhanced pursuant to W.Va.Code § 60A-4-408 (1971), on the basis that the appellant has a prior drug conviction. The appellant argues that although W.Va.Code § 60A-4-408 meets federal constitutional standards, the statute denies him due process under the West Virginia Constitution. After careful consideration of the issue before us, we affirm the ruling of the circuit court.

I. FACTS

In a complaint filed on August 22, 2005, the appellant was accused of selling twenty dollars worth of crack cocaine to an undercover West Virginia State Police Officer on July 6, 2005. On May 16, 2006, the appellant was indicted for delivery of a controlled substance under W.Va.Code § 60A-4-401(a)(i) (2005).² The indictment returned by the grand jury did not allege that the appellant had a prior drug conviction nor make any reference to W.Va.Code § 60A-4-408. After a two-day jury trial, the appellant was found guilty of the felony offense of delivery of a controlled substance.

The appellant was sentenced for his crime on February 20, 2007. At his sentencing, the State alleged that the appellant has a prior felony drug conviction. Therefore, pursuant to W.Va.Code § 60A-4-408, the State recommended that the circuit court double the appellant's prison sentence. In response to the State's recommendation, the appellant's counsel argued that the appellant's prior conviction should be determined by a jury.

In finding that the appellant had a prior conviction, the circuit court relied on the appellant's court file that contained evidence of the appellant's previous guilty plea in 1997 to a charge of possession with intent to deliver crack cocaine.³ The appellant chose to remain silent when asked to affirm his prior conviction. Based upon the information in the appellant's file, the circuit court found that the appellant had a prior felony drug conviction and doubled his sentence as provided by W.Va.Code § 60A-4-408. The circuit court sentenced the appellant to prison for a period of not less than two nor more than thirty years with credit for time served, fined him $3,000, and levied an additional fine of $75 to be paid to the Victim's Compensation Fund. The appellant now appeals his sentence.

II. STANDARD OF REVIEW

We are asked in this case to determine the constitutionality of a statute. This Court previously has recognized that the constitutionality of a statute is a question of law which this Court reviews de novo. See State v. Haught, 218 W.Va. 462, 464, 624 S.E.2d 899, 901 (2005) (indicating that the constitutionality of a statute "is a question of law"); Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995) (holding that "[w]here the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review."). In addition, we afford to a statute every reasonable construction in order to sustain its constitutionality. This Court has held:

In considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches. Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question. Courts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond reasonable doubt.

Syllabus Point 1, State ex rel. Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965). With these standards in mind, we now proceed to address the issue before us.

III. DISCUSSION

The sole issue in this case is whether W.Va.Code § 60A-4-408 denies defendants their due process rights under Article III, Section 10 of the Constitution of West Virginia which provides that "[n]o person shall be deprived of life, liberty, or property, without due process of law, and the judgment of his peers." According to W.Va.Code § 60A-4-408:

(a) Any person convicted of a second or subsequent offense under this chapter may be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized, or both. When a term of imprisonment is doubled under section 406 [§ 60A-4-406], such term of imprisonment shall not be further increased for such offense under this subsection (a), even though such term of imprisonment is for a second or subsequent offense.

(b) For purposes of this section, an offense is considered a second or subsequent offense, if, prior to his conviction of the offense, the offender has at any time been convicted under this chapter or under any statute of the United States or of any state relating to narcotic drugs, marihuana, depressant, stimulant, or hallucinogenic drugs.

(c) This section does not apply to offenses under section 401(c) [§ 60A-4-401].⁴ (Footnote added.).

The appellant claims that the application of W.Va.Code § 60A-4-408 to his sentence deprived him of his due process rights under the state constitution. According to the appellant, the statute violates due process principles because it does not contain any requirement that a criminal defendant receive any notice that he or she may be subject to its enhancement provisions or that the qualifying prior drug conviction may be included in the indictment or by separate information; it does not contain any provision for a jury or bench hearing where the defendant can contest the existence of a prior drug conviction; and no particular evidentiary standard is specified for the finding of a prior conviction.

At the outset, we note that the appellant does not contest the fact that W.Va.Code § 60A-4-408 meets federal constitutional due process standards. This was made clear by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi involved a defendant who pled guilty to the New Jersey crime of second-degree possession of a firearm for an unlawful purpose, which carried a prison term of 5 to 10 years. Subsequent to the defendant's plea, the prosecutor moved to enhance the sentence pursuant to a state hate crime statute that permitted a defendant's sentence to be enhanced if the court found, by a preponderance of the evidence, that "`[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.'" Apprendi, 530 U.S. at 468-69, 120 S.Ct. 2348, quoting N.J. Stat. Ann. § 2C:44-3(e) (West Supp.1999-2000). The trial court found that the shooting was racially motivated and sentenced the defendant to a 12-year term, which was two years more than the maximum sentence provided in the statute under which the defendant was convicted.

The defendant appealed arguing that the federal due process clause requires the jury, not the trial judge, to find beyond a reasonable doubt the bias upon which his hate crime sentence was based. A New Jersey appellate court upheld the increased sentence reasoning that the hate crime enhancement was a sentencing factor and not an essential element of the underlying offense. The New Jersey Supreme Court subsequently affirmed the appellate court decision. The court reasoned that the statute was constitutional because it did not allow "impermissible burden shifting, and did not create a separate offense calling for a separate penalty." Apprendi, 530 U.S. at 473, 120 S.Ct. 2348 (internal quotation marks and citation...