State v. Sears
| Decision Date | 14 February 1996 |
| Docket Number | No. 23049,23049 |
| Citation | 468 S.E.2d 324,196 W.Va. 71 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia, Plaintiff Below, Appellee. v. Frederick SEARS, Jr., Defendant Below, Appellant. |
2. In order to establish a double jeopardy claim, the defendant must first present a prima facie claim that double jeopardy principles have been violated. Once the defendant proffers proof to support a nonfrivolous claim, the burden shifts to the State to show by a preponderance of the evidence that double jeopardy principles do not bar the imposition of the prosecution or punishment of the defendant.
3. The purpose of the Double Jeopardy Clause is to ensure that sentencing courts do not exceed, by the device of multiple punishments, the limits prescribed by the legislative branch of government, in which lies the substantive power to define crimes and prescribe punishments.
4. The strength of a double jeopardy claim is whether a defendant is facing multiple punishment for the same course of conduct. To determine if a particular statutory sanction constitutes punishment for double jeopardy purposes, courts should consider: (1) whether the statute serves solely a remedial purpose or serves to punish and deter criminal conduct and (2) whether the Legislature tied the sanction to the commission of specific offenses.
5. Under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), if two statutes contain identical elements of proof, the presumption is that double jeopardy principles have been violated unless there is a clear and definite statement of intent by the Legislature that cumulative punishment is permissible.
6. A prior conviction which is used as the predicate to establish the crime of wanton endangerment with a firearm also cannot be used to enhance a defendant's punishment under W.Va.Code, 62-12-13 (1988), the parole statute, in the absence of explicit legislative authority.
Appeal from the Circuit Court of Ohio County; Honorable Fred Risovich II, Judge, No. 94-F-92.
Deborah L. McHenry, Managing Deputy Attorney General, Charleston, for Appellee.
Gail W. Kahle, Dickie, McCamey & Chilcote, Wheeling, for Appellant.
The defendant below and appellant herein, Frederick Sears, Jr., was sentenced following a guilty plea to wanton endangerment involving a firearm. He now appeals the sentence entered against him. The defendant asserts the circuit court violated double jeopardy principles by applying the parole eligibility requirements of W.Va.Code, 62-12-13(a)(1)(A) (1988), when sentencing under the wanton endangerment involving a firearm statute contained in W.Va.Code, 61-7-12 (1994). Because the circuit court impermissibly enhanced the defendant's parole eligibility requirements, we remand for resentencing consistent with this opinion.
On December 7, 1994, the defendant was charged under a six-count indictment arising from an incident involving firing multiple gunshots in the downtown area of Wheeling, West Virginia, on September 9, 1994. The defendant was charged with the following offenses: Count I--malicious assault in violation of W.Va.Code, 61-2-9(a) (1978); Count II--carrying a deadly weapon in violation of W.Va.Code, 61-7-3(a) (1989); Counts III, IV, and V--wanton endangerment involving a firearm in violation of W.Va.Code, 61-7-12; and Count VI--unlawful shooting in violation of W.Va.Code, 61-2-11 (1923).
The defendant entered into a plea agreement with the State and pleaded guilty on April 24, 1995, to Count III of the indictment, which alleged the defendant committed the offense of wanton endangerment involving a firearm by "unlawfully, wantonly and On May 1, 1995, the circuit court conducted a hearing where it gave the defendant an opportunity to withdraw his plea, explained possible sentencing options, and made a specific finding that the defendant used a firearm in the commission of his crime. The defendant declined to withdraw his plea and informed the court that he understood the sentencing possibilities. Defense counsel then questioned the applicability of W.Va.Code, 62-12-13(a)(1)(A). Under this statute, individuals found to have used a firearm in the commission of their crimes are ineligible for parole until three years or the full sentence has been completed, whichever is less. Defense counsel asserted this provision is a sentence enhancement and it was inappropriate to apply it in this case. The circuit court instructed defense counsel to brief the issue on or before May 10, 1995. A brief was submitted by defense counsel on May 9, 1995.
[196 W.Va. 74] feloniously" shooting a firearm at two people and thereby creating "a substantial risk of death or serious bodily injury." The State agreed to dismiss the remaining counts of the indictment as part of the plea agreement. In the "Notice of the Plea Agreement," the State recommended a three-year term of imprisonment at a correctional facility
On May 12, 1995, the circuit court conducted a sentencing hearing. Counsel for the defendant and the State made statements concerning the applicability of W.Va.Code, 62-12-13(a)(1)(A). Without addressing the legal arguments, the circuit court stated: "Your motion to preclude application of sentencing enhancements in Chapter 61, Article 12, Section 13 is denied." 2 The circuit court then sentenced the defendant to five years in the penitentiary with parole eligibility in three years. The defendant appeals his sentence asserting that the application of W. Va.Code, 62-12-13, violates double jeopardy principles. 3
The defendant specifically contends that the use of the same firearm scenario to prove the principal charge of wanton endangerment with a firearm and also to increase the time required to be served before he is eligible for parole violates both State and federal prohibitions against double jeopardy.
[196 W.Va. 75] We agree and hold that in the absence of clear evidence of legislative intent to the contrary, the parole enhancement statute is inapplicable to wanton endangerment involving a firearm.
Both the construction and scope of our parole statute and a double jeopardy claim are reviewed de novo. See United States v. Gardner, 65 F.3d 82, 85 (8th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 748, 133 L.Ed.2d 696 (1996); United States v. Jernigan, 60 F.3d 562, 563 (9th Cir.1995). In order to establish a double jeopardy claim, a defendant must first present a prima facie claim that double jeopardy principles have been violated. Once the defendant proffers proof to support a nonfrivolous claim, the burden shifts to the State to show by a preponderance of the evidence that double jeopardy principles do not bar the imposition of the prosecution or punishment of the defendant. After reviewing the record, we hold the defendant has established a prima facie claim regarding the parole enhancement. Thus, we will consider the merits of his claim.
The Double Jeopardy Clause of the West Virginia Constitution provides, in part: "No person shall ... be twice put in jeopardy of life or liberty for the same offence." W.Va. Const. art. 3, § 5. 6 This clause historically has served the function of preventing both successive punishments and successive prosecutions and bars an accused from being twice punished for the same offense and from being twice tried for it. Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 306-07, 104 S.Ct. 1805, 1812, 80 L.Ed.2d 311, 323-24 (1984); State v. Rummer, 189 W. Va. 369, 432 S.E.2d 39 (1993); State v. Hersman, 161 W.Va. 371, 242 S.E.2d 559 (1978); Conner v. Griffith, 160 W.Va. 680, 238 S.E.2d 529 (1977). Thus, it can be said that the Double Jeopardy Clause "prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense." Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917, 922 (1938), abrogation on other grounds recognized by United States v. Sanchez-Escareno, 950 F.2d 193 (5th Cir.1991). Indeed, in Ex parte Lange, 85 U.S. (18 Wall.) 163, 168, 21 L.Ed. 872, 876 (1874), the United States Supreme Court stated: "If there is anything settled in the jurisprudence of England and America, it is that no man [or woman] can be twice lawfully punished for the same offence."
Stating the rule against double jeopardy is a relatively simple proposition; discerning the proper judicial test for implementing the rule, however, is more...
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