Wanstreet v. Bordenkircher

• Decision Date: 10 March 1981
• Docket Number: No. 14968,14968
• Citation: 166 W.Va. 523,276 S.E.2d 205
• Parties: George WANSTREET, v. Donald E. BORDENKIRCHER, Superintendent West Virginia Penitentiary, Respondent.
• Court: West Virginia Supreme Court

Page 205

276 S.E.2d 205

166 W.Va. 523

George WANSTREET, v. Donald E. BORDENKIRCHER, Superintendent West Virginia

Penitentiary, Respondent.

No. 14968.

Supreme Court of Appeals of West Virginia.

March 10, 1981.

Syllabus by the Court

1. "(T)he habitual criminal statute, W.Va.Code, 61-11-18, and the enhanced sentence provided thereunder, are not per se violative of the Equal Protection or Cruel and Unusual Punishment Clauses of the West Virginia or the United States Constitutions." Syllabus Point 3, in part, Martin v. Leverette, W.Va., 244 S.E.2d 39 (1978).

2. "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).

3. "Article III, Section 5 of the West Virginia Constitution, which contains the cruel and unusual punishment counterpart to the Eighth Amendment of the United States Constitution, has an express statement of the proportionality principle: 'Penalties shall be proportioned to the character and degree of the offence.' " Syllabus Point 8, State v. Vance, W.Va., 262 S.E.2d 423 (1980).

4. While our constitutional proportionality standards theoretically can apply to any criminal sentence, they are basically applicable to those sentences where there is either no fixed maximum set by statute or where there is a life recidivist sentence.

5. In determining whether a given sentence violates the proportionality principle found in Article III, Section 5 of the West Virginia Constitution, consideration is given to the nature of the offense, the legislative purpose behind the punishment, a comparison of the punishment with what would be inflicted in other jurisdictions, and a comparison with other offenses within the same jurisdiction.

Hugh Rogers, Jr., Kerens, for petitioner.

Chauncey H. Browning, Jr., Atty. Gen., Billie Gray, Asst. Atty. Gen., Charleston, for respondent.

MILLER, Justice:

In this original habeas corpus proceeding, we are asked to find that the recidivist life sentence imposed after a third felony conviction violates the proportionality clause in Article III, Section 5 of the West Virginia Constitution. ¹

Relator Wanstreet was indicted in Doddridge County in 1951 for forging a check in the amount of $18.62. At the time he was indicted, he was eighteen years old. Upon his guilty plea, he was sentenced to two to ten years and placed on probation. In 1955, he pled guilty to arson for burning a hay barn. The total value of the barn was $490. This crime resulted in the revocation of his probation and the imposition of the original two-to ten-year sentence for forgery. He was also sentenced to one to fifteen years for burning the barn and one to eight years for burning the hay contained in the barn. ² The arson sentences ran concurrently with each other but consecutively to the original forgery sentence.

According to the relator, he was paroled seven years later, but in 1963 his parole was revoked when he was found guilty of driving a motor vehicle without a license. He served three years in the penitentiary and was again paroled in 1966. In 1967, he was found guilty of forging a $43.00 check and was then given a recidivist life sentence under W.Va.Code, 61-11-18.

I.

An analysis of the proportionality issue must begin against the backdrop of our prior cases construing our recidivist statute, W.Va.Code, 61-11-18. We have upheld the validity of our recidivist statute in the face of a number of constitutional challenges. State v. Vance, W.Va., 262 S.E.2d 423 (1980); Martin v. Leverette, W.Va., 244 S.E.2d 39 (1978); State v. Graham, 68 W.Va. 248, 69 S.E. 1010 (1910), aff'd, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912). In the applicable portion of Syllabus Point 3 of Martin, supra, we stated:

"(T)he habitual criminal statute, W.Va.Code, 61-11-18, and the enhanced sentence provided thereunder, are not per se violative of the Equal Protection or Cruel and Unusual Punishment Clauses of the West Virginia or the United States Constitutions."

This same result has been reached by the United States Supreme Court as against challenges made to our statute based on due process and equal protection grounds, Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962), and as against claims of double jeopardy and cruel and unusual punishment, Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912).

Despite these affirmations of the constitutionality of the statute per se, we have historically adopted a rather strict and narrow construction of our recidivist statute. In State ex rel. Ringer v. Boles, 151 W.Va. 864, 871, 157 S.E.2d 554, 558 (1967), we stated:

"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. 24B C.J.S. Criminal Law § 1959, page 438."

Consistent with this proposition, we have excluded from consideration as prior felonies those offenses which were punishable as felonies only because the defendant repeated the commission of an offense that was in itself a misdemeanor. State v. Brown, 91 W.Va. 187, 112 S.E. 408 (1922). In Brown, we explained that the felonies within the scope of the recidivist statute must be those that are felonies because of the "character of the offense," rather than those that are felonies because of the "character of the accused." 91 W.Va. at 189, 112 S.E. at 409.

We have also excluded from the recidivist statute felonies which were committed before the conviction and sentencing for a previous felony had been completed. This ruling is based on the determination that the function of the statute is to deter future crimes. Consequently, the statute's application is only to those offenders, who having been previously convicted and sentenced, proceed to commit further crimes. State v. McMannis, W.Va., 242 S.E.2d 571 (1978); State ex rel. Yokum v. Adams, 145 W.Va. 450, 114 S.E.2d 892 (1960); State ex rel. Medley v. Skeen, 138 W.Va. 409, 76 S.E.2d 146 (1953); Dye v. Skeen, 135 W.Va. 90, 62 S.E.2d 681 (1950).

This Court has also excluded convictions by a military court, because of their fundamentally distinct nature, from the scope of felonies covered by the recidivist statute. State v. Wheeler, 123 W.Va. 279, 14 S.E.2d 677 (1941).

From a procedural standpoint, we have held that "the charge of former convictions must be proved with the same degree of certainty as the charge of the substantive offense." State v. Lawson, 125 W.Va. 1, 3, 22 S.E.2d 643, 644 (1942). Thus, where the issue of identity is contested in a recidivist proceeding, the State must bear the burden of proving identity beyond a reasonable doubt. State v. Vance, W.Va., 262 S.E.2d 423 (1980). Moreover, the State must prove beyond a reasonable doubt that the subsequent felonies, for recidivist purposes, were committed only after the conviction and sentencing for each prior felony. State v. McMannis, W.Va., 242 S.E.2d 571 (1978). In Vance, supra, we addressed some of the reasons for affording due process protection in a recidivist proceeding:

"A recidivist proceeding is not simply a sentencing hearing, but a proceeding whereby a new criminal status, that of being an habitual criminal, is determined.... If an individual is successfully prosecuted as an habitual criminal, a greater penalty than that attaching to the underlying crime is imposed. For these reasons, courts have required substantial due process protection in recidivist proceedings..." 262 S.E.2d at 429. (Citations Omitted)

This Court has repeatedly held that the underlying felony convictions must be constitutionally valid convictions, and thus has vacated recidivist sentences based on felony convictions obtained without the assistance of defense counsel, unless the record contains an affirmative showing that the right to counsel was voluntarily and intelligently waived. State ex rel. Johnson v. Boles, 151 W.Va. 224, 151 S.E.2d 213 (1966); State ex rel. Widmyer v. Boles, 150 W.Va. 109, 144 S.E.2d 322 (1965); State ex rel. Lovejoy v. Boles, 149 W.Va. 532, 142 S.E.2d 374 (1965); State ex rel. Whytsell v. Boles, 149 W.Va. 324, 141 S.E.2d 70 (1965). We have also held that a prior felony conviction may be voided if the defendant was denied the right to effective assistance of counsel. Housden v. Leverette, W.Va., 241 S.E.2d 810, 811 (1978).

Other strict procedural standards ³ are manifested by State ex rel. Ringer v. Boles, 151 W.Va. 864, 871, 157 S.E.2d 554, 558 (1967), where we stated that "(t)his Court has consistently held that the habitual criminal statutes of this state are mandatory and jurisdictional." In State ex rel. Yokum v. Adams, 145 W.Va. 450, 114 S.E.2d 892 (1960), we held that the failure to comply with the procedural requirements set out in the statute will render the recidivist sentence subject to habeas corpus attack regardless of the defendant's failure to object to the procedural irregularities at the recidivist hearing.

Based on these principles, recidivist sentences have been vacated for failure to file the recidivist information in writing, State ex rel. Nutter v. Boles, 150 W.Va. 93, 144 S.E.2d 238 (1965); State ex rel. Cox v. Boles, 146 W.Va. 392, 120 S.E.2d 707 (1961); State ex rel. Yokum v. Adams, 145 W.Va. 450, 114 S.E.2d 892 (1960); for failure to file the recidivist information at the same term as the last underlying conviction, State ex rel. Foster v. Boles, 147 W.Va. 655, 130 S.E.2d 111 (1963); State ex rel. Housden...