State v. Ward

Citation858 S.E.2d 207
Decision Date14 May 2021
Docket NumberNo. 19-1046,19-1046
CourtSupreme Court of West Virginia
Parties STATE of West Virginia, Plaintiff Below, Respondent v. Ronald Eugene WARD, Defendant Below, Petitioner

Scott A. Ash, Esq., Athens, West Virginia, Attorney for Petitioner.

Patrick Morrisey, Esq., Attorney General, Mary Beth Niday, Esq., Assistant Attorney General, Andrea Nease Proper, Esq., Assistant Attorney General, Charleston, West Virginia, Attorneys for Respondent.

HUTCHISON, Justice:

The petitioner, Ronald Eugene Ward, appeals the November 4, 2019, order of the Circuit Court of Summers County sentencing him to a determinate term of five years in the penitentiary for his felony conviction of possession of a firearm by a prohibited person pursuant to West Virginia Code § 61-7-7(b)(2) (2016)1 and an enhancement of five years in the penitentiary under the West Virginia Habitual Offender Act2 for a total determinate term of ten years imprisonment. In this appeal, the petitioner contends that the circuit court erred by denying his motion to dismiss his indictment based on the State's use of his 2005 Indiana conviction as the predicate felony barring his right to possess a firearm. Petitioner argues that because his Indiana offense would have been classified as a misdemeanor had it occurred in West Virginia, it could not serve as the predicate felony for a charged violation of West Virginia Code § 61-7-7(b)(2). Upon consideration of the parties’ briefs and oral arguments, the submitted record, and the relevant authorities, we find no error and affirm the circuit court's sentencing order.

I. Facts and Procedural Background

On November 26, 2018, the petitioner was stopped by a Summers County deputy while he was driving a vehicle near Talcott, West Virginia. The deputy knew the petitioner's driver's license had been revoked for driving under the influence. During the traffic stop, the deputy found a firearm and what appeared to be a small amount of methamphetamine inside the vehicle. A passenger indicated that the firearm belonged to the petitioner. Thereafter, the deputy discovered that the petitioner had been convicted of a felony in Indiana in 2005.

In March 2019, the petitioner was indicted by a Summers County grand jury and charged with a violation of West Virginia Code § 61-7-7(b)(2), possession of a firearm by a prohibited person. He was also charged with misdemeanor possession of a controlled substance and several misdemeanor driving offenses. The petitioner moved to strike the West Virginia Code § 61-7-7(b)(2) charge from his indictment because of "defective drafting," and the motion was granted. However, he was re-indicted on the same charge during the following term of the grand jury. Petitioner then sought dismissal of his indictment, arguing that the offense that led to his Indiana conviction would have been a misdemeanor had it occurred in West Virginia and, therefore, could not serve as the predicate felony for a charged violation of West Virginia Code § 61-7-7(b)(2). The circuit court denied the motion to dismiss the indictment by order entered October 2, 2019.

The petitioner was tried on October 8, 2019 and convicted of all charges arising out of the traffic stop. The petitioner then filed a motion for acquittal, again arguing that his Indiana conviction could not serve as the predicate felony conviction for a charged violation of West Virginia Code § 61-7-7(b)(2). Prior to sentencing, the State filed an information further charging the petitioner with a second offense enhancement under the Habitual Offender Act.3 The basis for the sentencing enhancement sought by the State was the petitioner's 2013 felony conviction in Summers County for attempted possession of a firearm by a prohibited person. Subsequently, the petitioner waived his right to a trial and admitted that he was the same person previously convicted in the 2013 Summers County case.4

The petitioner's sentencing hearing was held on November 1, 2019. At that hearing, the circuit court denied the petitioner's motion for acquittal and sentenced him to a determinate term of five years imprisonment for his conviction of possession of a firearm by a prohibited person and a determinate term of five years imprisonment under the Habitual Offender Act.5 This appeal followed.

II. Standard of Review

The sole issue in this case is whether the circuit court erred by finding that the petitioner's 2005 Indiana conviction could serve as the predicate felony conviction for the charge that petitioner violated West Virginia Code § 61-7-7(b)(2), possession of a firearm by a prohibited person. This is a question of law to which we apply a de novo standard of review. See Syl. Pt. 1, Chrystal R.M. v. Charlie A.L. , 194 W. Va. 138, 459 S.E.2d 415 (1995) ("Where 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."). With this standard in mind, we consider the parties’ arguments.

III. Discussion

In this case, there is no dispute that the petitioner was convicted of a felony in Indiana in 2005. Likewise, there is no dispute that the petitioner's Indiana offense–possession of methamphetamine—would have been considered a misdemeanor had it occurred in West Virginia.6 As such, the petitioner argues in this appeal that his Indiana conviction cannot serve as the predicate felony conviction necessary for a charged violation of West Virginia Code § 61-7-7(b)(2). In support of his argument, the petitioner primarily relies upon this Court's precedent pertaining to the use of out-of-state convictions in recidivist proceedings. In that regard, syllabus point three of Justice v. Hedrick, 177 W.Va. 53, 350 S.E.2d 565 (1986), holds:

Whether the conviction of a crime outside of West Virginia may be the basis for application of the West Virginia Habitual Criminal Statute, W.Va.Code , 61-11-18, - 19 [1943], depends upon the classification of that crime in this State.

The petitioner notes that this Court has applied the same holding in the context of enhanced sentences for domestic violence and driving under the influence.7 Thus, the petitioner argues that trial courts should look at the conduct involved in the out-of-state offense rather than whether the other jurisdiction labeled the offense as a felony when determining whether there is a prior felony conviction to support a charged violation of West Virginia Code § 61-7-7(b)(2). In other words, the petitioner asserts that it is the nature of the criminal conduct that should be considered, not the classification affixed to the offense by another jurisdiction.

Conversely, the State argues that West Virginia Code § 61-7-7(b)(2) must be applied as written. In that regard, the State says that the statute clearly provides that a person previously convicted of a felony controlled substance offense in any jurisdiction cannot possess a firearm in West Virginia.

The State argues that had the Legislature intended to limit application of West Virginia § 61-7-7(b)(2) to only convictions that are deemed felonies under West Virginia law, it would have so provided as this Court recognized in Perito v. Cty. of Brooke, 215 W. Va. 178, 597 S.E.2d 311 (2004). In Perito , this Court considered whether a pardon automatically restored a felon's right to possess a firearm or whether the procedure set forth in West Virginia Code § 61-7-7(c) for restoration of the right to possess a firearm had to be followed. This Court concluded in Perito that

[i]f the Legislature had desired to exclude from the provisions of Section 61-7-7(c) those individuals whose convictions had been pardoned, it could have easily done so ... Because the Legislature chose not to exclude pardoned convictions from the scope of Section 61-7-7, we may not do so now.8

Perito , 215 W. Va. at 183-84, 597 S.E.2d at 316-17 (footnote added). Thus, the State argues that if the Legislature intended for trial courts to consider the nature of out-of-state offenses under West Virginia law for purposes of a conviction under West Virginia Code § 61-7-7(b)(2), it would have so stated. In the absence of such language, the State maintains that there is no basis to look at the conduct and circumstances that resulted in the out-of-state felony conviction. The State further argues that applying this Court's precedent pertaining to recidivist convictions to West Virginia Code § 61-7-7(b)(2) would result in a complete revision of the statute that is contrary to the clear intent of the Legislature. We agree.

This Court has long recognized that

[t]he West Virginia legislature may, through the valid exercise of its police power, reasonably regulate the right of a person to keep and bear arms in order to promote the health, safety and welfare of all citizens of this State, provided that the restrictions or regulations imposed do not frustrate the constitutional freedoms guaranteed by article III, section 22 of the West Virginia Constitution , known as the "Right to Keep and Bear Arms Amendment."

Syl. Pt. 4, State ex rel. City of Princeton v. Buckner , 180 W. Va. 457, 377 S.E.2d 139 (1988). West Virginia Code § 61-7-7 prohibits certain persons from possessing firearms, provides penalties therefor, delineates who may carry a concealed weapon, and sets forth a procedure for a prohibited person to regain the ability to possess a firearm. As we observed in Perito , "[t]he obvious purpose of W.Va. Code § 61-7-7 is to guard the public safety." 215 W.Va. at 183, 597 S.E.2d at 316.

The specific provision at issue here, West Virginia Code § 61-7-7(b)(2), withholds the right to possess a firearm from any person "[w]ho has been convicted in this state or any other jurisdiction of a felony controlled substance offense [.]" Id. (emphasis added). The statutory language is plain and the legislative intent to prohibit any person previously convicted in any jurisdiction of a felony controlled substance offense from...

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