State v. Wilfong, 21-0696

CourtSupreme Court of West Virginia
Writing for the CourtWALKER, JUSTICE
PartiesSTATE OF WEST VIRGINIA, Plaintiff Below, Respondent, v. WILLIAM T. WILFONG, Defendant Below, Petitioner.
Docket Number21-0696
Decision Date17 November 2022

STATE OF WEST VIRGINIA, Plaintiff Below, Respondent,
v.

WILLIAM T. WILFONG, Defendant Below, Petitioner.

No. 21-0696

Supreme Court of Appeals of West Virginia

November 17, 2022


Submitted: November 1, 2022

Appeal from the Circuit Court of Randolph County The Honorable David H. Wilmoth, Judge Case No. 20-M-2

Morris C. Davis, Esq. The Nestor Law Office Elkins, West Virginia Counsel for the Petitioner

Patrick Morrisey, Esq. Attorney General Michael R. Williams, Esq. Senior Deputy Solicitor General Lara K. Bissett, Esq. Assistant Attorney General Charleston, West Virginia Counsel for Respondent

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SYLLABUS BY THE COURT

1. "The constitutionality of a statute is a question of law which this Court reviews de novo." Syllabus Point 1, State v. Rutherford, 223 W.Va. 1, 672 S.E.2d 137 (2008).

2. "'When the constitutionality of a statute is questioned every reasonable construction of the statute must be resorted to by a court in order to sustain constitutionality, and any doubt must be resolved in favor of the constitutionality of the legislative enactment.' Syl. Pt. 3, Willis v. O'Brien, 151 W.Va. 628, 153 S.E.2d 178 (1967)." Syllabus Point 3, State v. James, 227 W.Va. 407, 710 S.E.2d 98 (2011).

3. "'A criminal statute must be set out with sufficient definiteness to give a person of ordinary intelligence fair notice that his contemplated conduct is prohibited by statute and to provide adequate standards for adjudication.' Syl. pt. 1, State v. Flinn, 158 W.Va. 111, 208 S.E.2d 538 (1974)." Syllabus Point 1, State v. Blair, 190 W.Va. 425, 438 S.E.2d 605 (1993).

4. "'There is no satisfactory formula to decide if a statute is so vague as to violate the due process clauses of the State and Federal Constitutions. The basic requirements are that such a statute must be couched in such language so as to notify a potential offender of a criminal provision as to what he should avoid doing in order to ascertain if he has violated the offense provided and it may be couched in general

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language.' Syl. pt. 1, State ex rel. Myers v. Wood, 154 W.Va. 431, 175 S.E.2d 637 (1970)." Syllabus Point 2, State v. Blair, 190 W.Va. 425, 438 S.E.2d 605 (1993).

5. "Criminal statutes, which do not impinge upon First Amendment freedoms or other similarly sensitive constitutional rights, are tested for certainty and definiteness by construing the statute in light of the conduct to which it is applied." Syllabus Point 3, State v. Flinn, 158 W.Va. 111, 208 S.E.2d 538 (1974).

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OPINION

WALKER, JUSTICE

Petitioner William T. Wilfong was charged with possession of a firearm by a prohibited person under West Virginia Code § 61-7-7(a)(3) (2016). After the Circuit Court of Randolph County rejected his argument that the statute was unconstitutionally vague, it accepted his conditional guilty plea. Under the plea agreement, Mr. Wilfong reserved the right to appeal the issue and now contends that West Virginia Code § 61-7-7(a)(3)-which makes it unlawful for any person who "[i]s an unlawful user of . . . any controlled substance" to possess a firearm-is so ambiguous that it is unconstitutionally vague on its face. But because Mr. Wilfong does not argue, and has not shown, that this statute is vague as applied to his conduct of possessing a firearm while regularly using marijuana, his facial challenge cannot succeed. So, we affirm Mr. Wilfong's conviction.

I. FACTUAL AND PROCEDURAL BACKGROUND

On November 8, 2019, Deputy E. B. Carr of the Randolph County Sheriff's Department responded to a report of a suspicious vehicle. When Deputy Carr approached the vehicle, Mr. Wilfong identified himself. Deputy Carr told Mr. Wilfong that he was parked on property that was posted with no trespassing signs. Deputy Carr ran Mr. Wilfong's driver's license through Randolph County E-911 communications and learned that the license was suspended. A warrant check showed that Mr. Wilfong had an active arrest warrant through the Elkins Municipal Court for a failure to appear offense.

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Deputy Carr placed Mr. Wilfong under arrest and searched his vehicle incident to the arrest. He found a Remington Model 597 firearm and a magazine for that firearm that contained ten rounds of ammunition. Deputy Carr also found a digital scale with what he believed had marijuana residue on it. A criminal history check revealed that Mr. Wilfong had a conviction for possession of a controlled substance with a disposition date of May 28, 2019. When Deputy Carr drove him to the regional jail, Mr. Wilfong said he "only uses marijuana" and smokes it on a "normal" basis. Mr. Wilfong also told Deputy Carr that the last time he smoked marijuana was a week before his arrest.

Mr. Wilfong was charged with violating West Virginia Code § 61-7-7(a)(3) which provides, in relevant part, that an individual who "[i]s an unlawful user of . . . any controlled substance" is prohibited from possessing a firearm. Mr. Wilfong filed a motion with the circuit court seeking to have the statute declared unconstitutional on the ground that it was facially void for vagueness. He claimed that the statute did not give guidance as to what it means to be "an unlawful user," or how long someone is considered "an unlawful user," after using a controlled substance. The circuit court denied the motion.

Mr. Wilfong pleaded guilty to one misdemeanor count of being a prohibited person in possession of a firearm in violation of West Virginia Code § 61-7-7(a)(3) and reserved the right to appeal the constitutionality of that statute. The circuit court accepted his conditional guilty plea in March 2021. In its August 2, 2021, sentencing order, the

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circuit court sentenced Mr. Wilfong to one year in the regional jail; it suspended that sentence for one year of supervised probation.

II. STANDARD OF REVIEW

Mr. Wilfong argues that West Virginia Code § 61-7-7(a)(3) is unconstitutionally vague on its face because it does not define "unlawful user" of a controlled substance. "The constitutionality of a statute is a question of law which this Court reviews de novo."[1] When we evaluate his challenge to the statute, we keep in mind the importance of judicial restraint because we presume that a statute is constitutional: "When the constitutionality of a statute is questioned every reasonable construction of the statute must be resorted to by a court in order to sustain constitutionality, and any doubt must be resolved in favor of the constitutionality of the legislative enactment."[2] With this standard of review and presumption in mind, we proceed to address the parties' arguments.[3]

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III. ANALYSIS

In this appeal, the Court is tasked with determining whether West Virginia Code § 61-7-7(a)(3) should be declared unconstitutionally vague and, therefore, void. The statute provides, in relevant part, that "no person shall possess a firearm . . . who . . . [i]s an unlawful user of . . . any controlled substance[.]" [4] "Claims of unconstitutional vagueness in criminal statutes are grounded in the constitutional due process clauses, U.S. Const. amend. XIV, Sec. 1, and W.Va. Const. art. III, Sec. 10."[5]

When applying the void-for-vagueness doctrine, we have instructed that "[a] criminal statute must be set out with sufficient definiteness to give a person of ordinary

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intelligence fair notice that his contemplated conduct is prohibited by statute and to provide adequate standards for adjudication."[6] We also recognize that

"[t]here is no satisfactory formula to decide if a statute is so vague as to violate the due process clauses of the State and Federal Constitutions. The basic requirements are that such a statute must be couched in such language so as to notify a potential offender of a criminal provision as to what he should avoid doing in order to ascertain if he has violated the offense provided and it may be couched in general language."[7]

Mr. Wilfong argues that West Virginia Code § 61-7-7(a)(3) is so ambiguous it is unconstitutionally vague on its face because it does not define "unlawful user." He contends that the statute does not provide sufficient guidance to either a potential defendant or a finder of fact as to how long one remains an "unlawful user" after the unlawful use of a controlled substance. And Mr. Wilfong asks whether one forfeits his Second Amendment rights if he uses marijuana the week, the month, or the year before?

The State responds that because Mr. Wilfong cannot show that the statute is vague as applied to his particular conduct, he lacks standing to raise a facial challenge.[8]

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The State notes that when Mr. Wilfong pleaded guilty, he admitted to all of the facts alleged in the criminal complaint.[9] So, the State contends that Mr. Wilfong's regular use of marijuana would lead an ordinary person to understand that he was an "unlawful user" of controlled substances who was prohibited from possessing a firearm.

This case presents an issue of first impression for this Court. We look to federal court cases for guidance because they have examined the issue and recognized possible constitutional vagueness concerns with 18 United States Code § 922(g)(3) (2022),[10] which contains nearly identical language to West Virginia Code § 61-7-7(a)(3).[11]

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Even so, federal courts have consistently rejected facial due process challenges to § 922(g)(3) where the defendant engaged in conduct that was clearly prohibited by the statute. For example, in United States v. Purdy,[12...

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