### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Danny Hundley, 

### FILED Petitioner Below, Petitioner 

### April 5, 2018 vs) No. 16-1111 (Greenbrier Coun ty 10-C-94) released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS Patrick Mirandy, Warden, OF WEST VIRGINIA Saint Mary’s Correctional Center, Respondent Below, Respondent



### MEMORANDUM DECISION

Petitioner Danny Hundley, by counsel Eric M. Francis, appeals the Circuit Court of Greenbrier County’s November 3, 2016, order denying his amended petition for writ of habeas corpus. Respondent Patrick Mi randy, Warden, by counsel Gor don L. Mowen, II and Mary M. Downey, filed a response. 1 Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in denying his amended habeas petition on the grounds of ineffective assi stance of trial counsel, disproportionate sentence, and cumulative error.

This Court has considered the parties’ briefs, oral argument s, and the appendix record on appeal. Under the limited circumstances presente d in this case, we find a memorandum decision affirming in part and reversing and remanding in part for further proceedings appropriate under Rule 21 of the West Virginia Rules of Appellate Procedure. As explained below, the Court finds

that the circuit court committed no reversible error as pertains to petitioner’s claim of ineffective

assistance of counsel and therefore affirm that ruling. However, we find that the imposition of a

recidivist life sentence violates the proporti onality requirements of Artic le III, Section 5 of the West Virginia Constitution and therefore reve rse the recidivist sentence and remand for resentencing in accordance with this decision.

In May of 2006, petitioner was arrested followi ng his confession to po lice that he took an all-terrain vehicle (“ATV”) from Jimmy Legg’s re sidence without permission. Petitioner was later indicted on one count of burglary and one count of grand larceny. Prior to tria l, the State offered to dismiss both charges if petitioner would plead guilty to one count of conspiracy to commit burglary. The State further agreed to not seek a recidivist sentence enhancement. Petitioner rejected this proposed plea agreem ent and instead chose to proceed to trial in January of 2007.

1 Petitioner originally listed Marvin Plumley as respondent in this matter because, at the time, petitioner was housed at Huttonsville Correctional Center and Mr. Plumley served as the warden of that facility. Howeve r, petitioner has subsequently been transferred to Saint Mary’s Correctional Center. Accordingly, pu rsuant to Rule 41(c) of the Ru les of Appellate Procedure, the appropriate public officer has been substituted in the style of this matter.

1The day before trial began, the St ate filed a notice of intent to seek a recidivist penalty and informed petitioner that, if convicted, the Stat e would seek a life sentence pursuant to West Virginia Code § 61-11-18(c) (2000). Ultimately, the jury found petitioner guilty of both counts.

The State then filed its recidivist information that alleged petiti oner was previously convicted of multiple felonies.

In March of 2007, the circuit court proceeded to trial on the recidivist information, after which a jury found that pe titioner was the same indi vidual that was previ ously convicted of each of the felony offenses identified in the informa tion. That same month, the circuit court sentenced petitioner to a te rm of life imprisonment as a habitual o ffender under West Virginia Code § 61-11

- 18(c). Petitioner appealed his conviction, and this Court refused the same by order entered in January of 2008.

In May of 2010, petitioner filed his initial petition for writ of habeas corpus, after which the circuit court ordered that he undergo a psycho logical evaluation to determine his competency and criminal responsibility at the time of the act s with which he was charged. In June of 2013, the circuit court received the evaluation, which concluded that, despite functioning at a borderline intellectual range, petitioner was co mpetent to stand trial and, at th e time of the crime, capable of appreciating the wrongfulness of hi s acts and conforming his acts to the requirements of the law.

In September of 2014, the circuit court held two omnibus evidentiary hearings regarding petitioner’s claims. Thereafter, in December of 2014, Petitioner filed a Losh checklist and amended petition for writ of habeas corpus. 2 In his amended petition, petiti oner set forth only the following grounds for relief: (1) ineffectiv e assistance of counsel and (2 ) disproportionate sentence. In January of 2015, petitioner filed a supplemental memorandum in support of his amended petition that bolstered his factual support and argument fo r the grounds raised in the amended petition. Thereafter, by order entered on November 3, 2016, the circuit court denied petitioner’s amended petition for writ of habeas corpus . It is from this order that petitioner appeals.

This Court reviews appeals of circuit court orders denying habeas corpus relief under the following standard:

“In reviewing challenges to the findings and conclusi ons of the circuit court in a habeas corpus action, we apply a thre e-prong standard of review. We review the final order and the ultimate dispositi on under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standa rd; and questions of law are subject to a de novo review.” Syllabus point 1, Mathena v. Haines , 219 W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, State ex rel. Franklin v. McBride , 226 W.Va. 375, 701 S.E.2d 97 (2009). On appeal, petitioner raises three assignments of error: 1) that the circuit court e rred in failing to find ineffective assistance of counsel; 2) that the circuit court erred in failing to find his recidivist life sentence disproportionate; and 3) cumulative error. We shall address each in turn.

2 Losh v. McKenzie , 166 W.Va. 762, 277 S.E.2d 606 (1981).

2I. Ineffective Assistance of Counsel

Petitioner first alleges that th e circuit court erred in denyi ng him habeas relief based upon

ineffective assistance of counsel. 3 In his amended petition for writ of habeas corpus in the circuit court, petitioner asserted the fo llowing grounds for relief under his claim of ineffective assistance of counsel: 1) failing to communicate with petitio ner “in a certain manner” based on his intellectual functioning; 2) failing to adequate ly meet with petitioner in prep aration for his defense; and 3) permitting petitioner to testify at trial. 4 Before this Court, however , the complexion of petitioner’s argument regarding trial counsel’s ineffectiveness changes substant ially. Petitioner argues that

trial counsel was ineffective for failing to adduce evidence of hi s limited intellectual functioning at trial for the purpose of advancing a diminished capacity defense. 5

3 With respect to petitioner’s first assignment of error—ineffective assistance of counsel— we note at the outset that the arguments made in support of this allegation vacillate dramatically as between petitioner’s initial petition for habeas corpus relie f, his amended petition, and his petition for appeal. Although petiti oner failed to properly preserve and/or develop certain of his arguments in support of these alle gations, unless otherwise indicate d, we find the record adequate to dispense with certain of them regardless.

4 Although not developed below in the amended peti tion or before this Court, petitioner’s original petition also asserts that trial counsel was ineffective for discouraging petitioner from accepting one of the two plea offers received from th e State. Out of an abundance of caution, the

circuit court nevertheless addressed the allegation despite it apparently being abandoned in the amended petition. The circuit court found that, c ontrary to petitioner’s belated assertion, the evidence adduced during the habeas proceeding made it “painfully obvious” that trial counsel encouraged petitioner to consider the plea offer and explained the offer and rejection repercussions to him. Although not properly presented to the C ourt on appeal, we agree w ith the circuit court’s analysis of this issue based upon the record before us.

5 For the first time, in his petition for app eal, petitioner argues th at trial counsel was likewise ineffective for failing to attack the predicate offe nses upon which the recidivist enhancement was based. In partic ular, he argues that counsel was ineffective for failing to argue that burglary is not a crime of violence. Petit ioner likewise suggests—w ithout attributing this assertion to any ineffectiveness of trial counsel—t hat the recidivist record is incomplete based on his counsel’s inability to locate the certified records of his prior offens es introduced into evidence during the recidivist trial. Neither of these issues were addr essed by the circuit court inasmuch as petitioner plainly failed to rais e these arguments in his amended petition. “This Court’s general rule is that nonjurisdictional questions not raised at the circuit court level will not be considered to the first time on appeal.” State v. Jessie , 225 W.Va. 21, 27, 689 S.E.2d 21, 27 (2009) (citing Whitlow v. Bd. of Educ. of Kanawha Cty. , 190 W.Va. 223, 226, 438 S.E.2d 15, 18 (1993)).

Nevertheless, we observe that petitioner’s as sertion that trial counsel was ineffective for failing to argue that burglary is a not a crime of violence is not we ll-taken inasmuch as this Court has plainly indicated to the contra ry: “[B]urglary and grand larceny [are] crimes that by their very nature involve[] the threat of harm or violence to innocent persons.” State v. Housden , 184 W. Va. 171, 175, 399 S.E.2d 882, 886 (1990). Moreover, the f act that this Court ul timately hereinafter

3We have held that

[i]n the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington

, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel’s performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel’s unprofessional errors , the result of the proceedings would have been different.

Syl. Pt. 5, State v. Miller , 194 W.Va. 3, 459 S.E.2d 114 (1995). A claim may be disposed of for failure to meet either prong of the test. Syl. Pt. 5, in part, State ex rel. Daniel v. Legursky , 195 W.Va. 314, 465 S.E.2d 416 (1995). “Failure to meet th e burden of proof imposed by either part of

the Strickland / Miller test is fatal to a habeas petitioner’s claim.” State ex rel. Vernatter v. Warden, W.Va. Penitentiary , 207 W.Va. 11, 17, 528 S.E.2d 207, 213 (1999).

With respect to petitioner’s assertions of ineffective assi stance of counsel based upon his intellectual functioning, we address those collec tively. Petitioner assert s that his borderline intelligence required trial counsel to “explain the procedure to him in a certain manner” and that trial counsel should have “further investigated” and/or adduced this evidence at trial for the purpose of asserting a diminished capacity defense. Insofar as trial counsel’s manner of explaining the process to petitioner, the circuit court found that petitioner fa iled to establish that trial counsel’s “performance in communicating with the [p]etitioner was deficient[.]” The ci rcuit court noted that during the habeas evidentiary he aring, petitioner was presented w ith various materials which he understood in substance and had the opportunity to request further explanation for any words which he may not have understood. We agree with the ci rcuit court that peti tioner has failed to demonstrate any sort of deficiency in trial c ounsel’s manner of communicating and explaining the process to him.

Insofar as petitioner’s contention that trial counsel was under an obl igation to “further investigate” his borderline intelligence for the pur pose of claiming diminished capacity, petitioner has likewise failed to demonstrate either an objective deficiency or reasonable probability of a different outcome. A psychological evaluation de monstrated that petitioner was competent to stand trial, had an “adequate fact ual and rational apprecia tion of the proceedings,” and the capacity to assist his attorney in his defense. Moreov er, this evaluation revealed that petitioner was criminally responsible for his offenses and that “[h]is mental disorders would not have prevented him from appreciating the wrongful ness of his acts” or “conformi ng his acts to the requirements of law.” Trial counsel testified that petitioner was “reasonably articulate , understood the process, [and] understood the notion of criminal responsibility[.]”

Moreover, petitioner’s contention that trial counsel foreclosed an opportunity to investigate or advance a “diminished capacity” defense is unde rmined by the cases he cites in support. In

concludes that petitioner’s offenses are in fact disproportionate to hi s recidivist life sentence is not an implicit endorsement of this assertion of in effectiveness. Rather, our conclusion is based strictly upon a proportionality assessment that is pecu liarly within the provin ce of the Court. With respect to the availability of the trial exhibits, see n.9, infra

.

4Wickline v. House , 188 W.Va. 344, 424 S.E.2d 579 (1982), the Court found ineffective assistance

of counsel where trial counsel fa iled to investigate Wickline’s possible diminished capacity. However, Wickline was not merely of borderlin e intellectual function, but also had “longstanding neurological problems.” Id . at 348, 424 S.E.2d at 583. More importantly, however, Wickline offered expert testimony that “had [she] been evaluated for diminished capacity, there was a reasonable probability that he would have found that [she] did not knowingly waive her Miranda rights prior to [her] confession[,] ” which confession was the centerpie ce of the prosecution’s case.

Id . Moreover, in State v. Joseph , we explained that a diminished capacity defense is available to introduce expert testimony “regarding a mental disease or de fect that rendere d the defendant incapable, at the time the crime was committed, of forming a mental state that is an element of the crime charged.” Syl. Pt. 3, in part, 214 W. Va. 525, 526-27, 590 S.E.2d 718, 719-20 (2003). As indicated above, petitioner was found both competent and criminally responsible for his offenses.

We therefore conclude that petitioner has failed to establish that his trial counsel was ineffective. Accordingly, we fi nd no error in the circuit court’s refusal of habeas relief on this

basis. 6

6 Imbedded within petitioner’s amended petitio n and petition for appeal is a paragraph raising the spectre of insufficiency of the indict ment. Although neither de veloped on a stand-alone constitutional basis nor expressly tied to allegati ons of ineffective assistance, petitioner cursorily suggests that the burglary indictment was insuff icient. However, in support of this argument, petitioner fails to allege how the indictment at issu e was defective. In fact, petitioner does not cite to the indictment or its language at all. Instead, petitioner makes general assertions regarding his mistaken belief that he was permitted to borrow the ATV in question and how such belief

established that he lacked the intent to commit bu rglary. It is clear that petitioner cannot establish that the results of the proceedings would have be en different had trial counsel pursued relief based on the sufficiency of the indictment. “Generally, the sufficiency of an indictment is reviewed de

novo . An indictment need only meet minimal constitutional standards, and the sufficiency of an indictment is determined by practical rather than technical consider ations.” Syl. Pt. 2, State v.

Miller , 197 W.Va. 588, 476 S.E.2d 535 (1996). The indict ment in question plainly tracked the language of the burglary statute, as found at West Virginia Code § 61-3-11(a) ( 1993). Specifically, the indictment set forth, in part, that petitioner “feloniously and burglariously did enter [the victim’s home] without breaking, in the nighttime, with intent to commit a crime therein” and, thereafter, did commit a crime therein. Accordingly, to whatever extent this assertion was raised, it is clear that it lends petitioner no relief.

Finally, we note that petitioner advanced two additional arguments in his amended petition, which were addressed by the circuit court, but not argued on appeal: that trial counsel was ineffective for adequately meeting with him to prepare for his defense and by allowing him to testify. “Although we liberally cons true briefs in determining issu es presented for review, issues which are not raised, and those mentioned only in passing but are not supported with pertinent authority, are not considered on appeal.” State v. LaRock , 196 W.Va. 294, 302, 470 S.E.2d 613, 621 (1996). Nevertheless, it is clear that these cont entions are neither f actually nor legally supportable. Trial counsel testifie d that his billing reco rds revealed five meetings with petitioner, as well as multiple meetings incident to his court appearances. Further, the record plainly reveals that the trial court warned petiti oner and his counsel of the dangers of testifying and engaged in an

5II. Disproportionate Sentence

Petitioner next asserts that his sentence wa s unconstitutionally disproportionate because he received a life sentence predicate d, in part, upon “traffic offenses,” posing no threat of violence. He further makes specific challenges to the use of the underlying felony dr iving under the influence (“DUI”) offenses to support the re cidivist sentence. While we sta unchly disagree with petitioner’s characterization of the predicate DUI charges as mere “traffic offenses” and further find no merit to his challenges to the use of these offenses as predicates to a recidivist enhancement, we agree that under the limited circumstances of this case, the use of a life sentence recidivist enhancement violates the proportionality principles of the We st Virginia Constitution, Article III, Section 5.

West Virginia Code § 61-11-18( c) provides that “[w]hen it is determined, as provided in section nineteen of this article, that such person shall have b een twice before convicted in the United States of a crime punishable by confinement in a penitentiary, the person shall be sentenced to be confined in the state correctional facility for life.” In this case, the habeas court determined that evidence of petitioner’s 2000 3 rd offense felony DUI, 2003 3 rd offense felony DUI, and 2007 burglary and grand larceny convic tions, properly formed the basis of petitioner’s recidivist

conviction. 7

We address first petitioner’s specific chal lenges to the sufficiency of the two DUI

convictions for use in the recidivi st proceeding. Before the circuit court, petitioner argued that as to the DUI convictions, they are insufficient to fo rm the basis of the enhancement due to the age of the misdemeanor conviction underlying the 3 rd offense DUI and its use as predicate for both 3 rd offense DUIs. Petitioner argues that the misdemeanor offense DUI upon which the 3 rd offense convictions were based is grea ter than ten years old, having occurred in 1986. He cites West Virginia Code § 17C-5-2(n)(1) (2016), which provi des that to support a s ubsequent DUI offense, the prior conviction must have occurred “withi n the ten-year period im mediately preceding the date of arrest in the current pr oceeding.” However, this provis ion was enacted after petitioner’s

2000 and 2003 DUI convictions were final. 8 Accordingly, it is inappli cable to those convictions. 9

exchange with petitioner clearly expressing petitioner’s desire to testify in his own defense. Accordingly, we find that the circuit court likew ise correctly dispensed with these arguments.

7 Although evidence of a 2000 forg ery was likewise introduced in the recidivist proceeding,

the circuit court determined that due to the date of the commission of the forgery, it was not proper

for consideration for recidivist enhancement. See State v. McMannis , 161 W. Va. 437, 441, 242 S.E.2d 571, 575 (1978) (holding th at predicate recidivist offenses must occur in succession following conviction and sentence on preceding offense).

8 At the time of its original enactment, this provision was located at West Virginia Code § 17C-5-2(l)(1).

9 Petitioner’s argument that he is unable to cha llenge the validity of his convictions for DUI

because the records of those convictions are not in the circuit court’s file or any appendices of these proceedings is not properly before this Cour t. Petitioner admits that this argument was not

6Petitioner next argues that, si nce the misdemeanor DUI was used as a predicate for both the 2000 and 2003 subsequent DUI c onvictions, those convictions we re “not truly separate and distinct” for purposes of the reci divist statute. However, the use of the same misdemeanor conviction to form the basis of the 2000 and, in part, the 2003 DUI convictions is immaterial to the use of those felony convictions under the reci divist statute. West Virginia Code § 61-11-18 requires simply that a person have been “twice be fore convicted . . . of a crime punishable by confinement in a penitentiary[.]” Therefore the pertinent convictions for recidivist purposes are the two felony 3 rd offense DUIs—not the convictions which gave rise to those 3 rd offense

convictions. 10 Moreover, this Court has made clear that

[d]espite the fact that a third o ffense DUI felony conviction pursuant to West Virginia Code § 17C-5-2(j) (Supp.1995) results from an enhanced misdemeanor, the Legislature intended that this type of felony conviction be used for sentence enhancement in connection with the terms of the recidivist statute, West Virginia Code § 61-11

- 18 (Supp.1995).

Syl. Pt. 3, in part, State v. Williams , 196 W.Va. 639, 474 S.E.2d 569 ( 1996). Therefore, petitioner’s challenges to the validity of the predicate recidivist convictions provide him no relief.

However, as previously noted, before this Court, petitioner focuse s exclusively on the nature of the offenses, arguing that neither the DU Is nor the most recent burglary and grand larceny are crimes of violence and therefore a life sentence enhancement is unconstitutionally disproportionate. This Court has held: “Article III, Section 5 of the West Virginia Constitution,

presented to the circuit court by stating in his pet ition to this Court that, “while preparing for this brief, [p]etitioner’s counsel looked at the recidivist trial in this matter . . . and found that . . . there were no certified records in the [c ]ourt file, nor in the appendices, that correlated to exhibits 1-5

as stated in the recidivist trial. ” Accordingly, it is clear that this argument was not presented to the circuit court and, thus, is not a ppropriate for appellate review. See Jessie , 225 W.Va. at 27, 689 S.E.2d at 27. Nevertheless, we note that the transc ript of the recidivist tr ial clearly demonstrates that certified copies of record s concerning petitioner’s two prio r felony DUI convictions, along with petitioner’s forgery conviction, were marked and received into evidence during that trial.

10 Petitioner further asserts in his amended petition that because the underlying

misdemeanor DUI conviction was entered into without counsel, it was improperly used for

enhancement in the 2000 and 2003 3 rd offense DUIs, citing State v. Hopkins , 192 W. Va. 483, 453 S.E.2d 317 (1994). Petitioner misreads Hopkins , as it stands for precisely the opposite proposition: “[U]nder the sixth amendment to the U. S. Constitution and article III, section 14 of the West Virginia Constitution , ‘an uncounseled misdemeanor conviction, valid under Scott [ v. Illinois , 440

U.S. 367, 99 S. Ct. 1158, 59 L.Ed.2d 383 (1979)], because no prison term was imposed, is also valid when used to enhance punishme nt at a subsequent conviction.’ Nichols [ v. United States ] 511 U.S. 738, ––––, 114 S. Ct. 1921, 1928, 128 L.Ed.2d 745, 755 (1994).” Syl. Pt. 3, Hopkins

, 192 W. Va. 483, 453 S.E.2d 317, overruled on other grounds by State v. Nichols , 208 W. Va. 432, 541 S.E.2d 310 (1999).

7which contains the cruel and unusual punishment counterpart to the Eighth Amendment of the United States Constitution, has an express statemen t of the proportionality principle: ‘Penalties shall be proportioned to the character a nd degree of the offence.’” Syl. Pt. 8, State v. Vance , 164 W.Va. 216, 262 S.E.2d 423 (1980). The proportionality requirement has been found expressly to apply to recidivist proceedings: “While our co nstitutional proportionality standards theoretically can apply to any criminal sentence, they are basica lly applicable to those sentences where there is either no fixed maximum set by statute or where ther e is a life recidivist sentence.” Syl. Pt. 4,

Wanstreet v. Bordenkircher , 166 W. Va. 523, 276 S.E.2d 205 (1981).

In that regard, we have held:

The appropriateness of a life re cidivist sentence under our constitutional proportio nality provision found in Article III, Section 5, will be analyzed as follows: We give initial emphasis to the

nature of the final offense which tr iggers the recidivist life sentence, although consideration is also give n to other underlying convictions. The primary analysis of these offenses is to determine if they involve

actual or threatened violence to the person since crimes of this nature have traditionally carried the more serious penalties and therefore justify application of th e recidivist statute.

Syl. Pt. 7, State v. Beck , 167 W.Va. 830, 286 S.E.2d 234 (1981) . As indicated, petitioner characterizes his previous felony DUI convictions as “traffic offenses.” As this Court made clear

in State ex rel. Appleby v. Recht , 213 W. Va. 503, 516, 583 S.E.2d 800, 813 (2002), “[w]e have little trouble in finding that driv ing under the influence is a crime of violence supporting imposition of a recidivist sentence.” Moreover, as previo usly indicated, we have plainly recognized that “burglary and grand larceny [are] cr imes that by their very nature involve[] the threat of harm or violence to innocent persons.” Housden , 184 W. Va. at 175, 399 S.E.2d at 886.

Nevertheless, although we have regarded pe titioner’s underlying and triggering offenses as crimes of violence in general, our guiding sy llabus point requires the Court to look beyond these generalities to the specific circumstances su rrounding the crimes to ensure constitutional proportionality. “[W]e have histor ically adopted a rather strict and narrow construction of our recidivist statute[]” and “consistently viewed [it] in a restrictive fashion in order to mitigate its

harshness.” Wanstreet , 166 W. Va. at 525, 528, 276 S.E.2d at 207-08, 209.

In that regard, our guiding syllabus point requires the Court to “determine if [the offenses]

involve actual or threatened violence to the person . . . .” Syl. Pt, 7, in part, Beck , 167 W. Va. 830, 286 S.E.2d 234 (emphasis added). In State ex rel. Boso v. Hedrick , 182 W. Va. 701, 391 S.E.2d 614 (1990), the Court found that a recidivist sentence based, in part, upon breaking and entering and night-time burglary was disproportionate. Th e Court noted that breaking and entering is not “per se a crime of violence” and that the ni ght-time burglary was committed in an unoccupied dwelling. Id . at 709, 391 S.E.2d at 622. Th e Court further noted that th e record was devoid of any indication that “any weapons were us ed in these crimes or that there was a thre at of violence to any person.” Id . Moreover, in State v. Davis , 189 W. Va. 59, 61, 427 S.E.2d 754, 756 (1993), the Court similarly found a recidivist life sentence disproportionate wher e “[t]here [was] no suggestion

that actual violence was used or was threatened in the course of the commission of the crime.”

8Emphasizing that the underlying crimes of recei ving stolen property and breaking and entering were “neither violent in nature or in actuality,” the Davis Court again referenced the fact that

neither of these offenses were “ per se a crime of violence.” Id . at 61, 427 S.E.2d at 757.

Finally, in State v. Miller , 184 W. Va. 462, 465, 400 S.E.2d 897, 900 (1990), the Court

found a recidivist life sentence di sproportionate where, despite the presence of actual violence in the triggering offense, the predicate offenses we re either decidedly non- violent or “posed only a threat of violence.” Noting that “the propensity for violence is an important factor to be considered,” the Miller Court noted the absence of a “‘di scernible trend of violence.’” Id . (quoting

State v. Oxier , 179 W. Va. 431, 434, 369 S.E.2d 866, 869 ( 1988) (J. Miller, dissenting)).

Inasmuch as this Court has directed that “the third felony is entitled to more scrutiny than the preceding felony convictions si nce it provides the ultimate ne xus to the sentence,” we are compelled to place particular emphasis on peti tioner’s grand larceny a nd burglary offenses.

Wanstreet , 166 W. Va. at 534, 276 S.E.2d at 212. Like the cases discussed above, petitioner’s grand larceny and burglary offenses involved no act ual or even threatened violence. Petitioner absconded with an ATV from the separately ac cessible basement of the Leggs’ home under cover of night, without interacting with anyone. While the home wa s not unoccupied, the evidence reveals that the Leggs’ basement lacked interi or access to their home. The evidence appears undisputed that petitioner was well-acquainted with the Leggs and regularly borrowed the ATV at issue with permission. While providing neither a le gal or factual “excuse” for petitioner’s crimes,

it is clear that these circumstances demonstrate an offense of neither actual nor threatened harm. Accordingly, we find that under the highly pa rticularized circumstances presented herein, petitioner’s recidivist li fe sentence is unconstitutionally disproportionate. 11

For the foregoing reasons, we affirm the circuit court’s determination that petitioner is not

entitled to habeas relief for ineffective assistance of counsel. However, we find that petitioner’s sentence was unconstitutionally disp roportionate to his offenses a nd therefore reve rse the circuit court’s order of March 27, 2007, imposing a life sentence and remand for resentencing as to the burglary and grand larceny charges. See State ex rel. McMannis v. Mohn , 163 W. Va. 129, 254 S.E.2d 805 (1979) (outlining options upon vacation of recidivist sentencing).

Affirmed, in part, and reve rsed and remanded, in part.

ISSUED: April 5, 2018

CONCURRED IN BY: Chief Justice Margaret L. Workman

Justice Robin Jean Davis

Justice Menis E. Ketchum

Justice Elizabeth D. Walker

DISSENTING: Justice Allen H. Loughry II

11 Having afforded petitioner reli ef as to his claim of disp roportionate sentencing, and having otherwise found no error, it is unnecessary to addres s petitioner’s claim of cumulative error.

9CONCURRING AND WRITING SEPARATELY:

Ketchum, J., concurring:

I concur in the majority’s conclusion that petitioner’s recidivist life sentence was unconstitutionally disproportionate. While I agree that petitioner’s burglary and grand larceny

convictions lacked sufficient indici a of “actual or threatened” violence, I also maintain that driving under the influence (“DUI”) likewise lacks “actua l or threatened” violence. Despite dicta contained in our precedent suggesting otherwise, it is clear that driving under the influence is not a categorical “crime of violence” constitutionally suffi cient to justify a reci divist conviction. The United States Supreme Court has flatly characterized DUI as “non-violent.” Solem v. Helm, 463

U.S. 277 (1983). See also Dalton v. Ashcroft , 257 F.3d 200, 208 (2d Cir. 2001) (holding that DUI is not a crime of violence); U. S. v. Chapa-Garza , 243 F.3d 921, 927 (5th Cir. 2001) (holding that DUI is not a conviction of a crime of violence), reh’g denied , 262 F.3d 479 (5th Cir. 2001); BazanReyes v. INS , 256 F.3d 600, 612 (7th Cir. 2001) (holding th at DUI and homicide by intoxicated use of a vehicle are not crimes of violence); U.S. v. Trinidad-Aquino , 259 F.3d 1140, 1146 (9 th Cir. 2001) (same).

As these courts have observed, “a drunk driving accident is not the result of plan, direction, or purpose, but of recklessness at worst and misfortune at best.” U. S. v. Rutherford , 54 F.3d 370, 372 (7th Cir. 1995). Nor is “violence” the n ecessary precursor to serious physical harm; serious physical harm may occur as a result of all manne r of wrongful or merely negligent acts. Simply because serious harm does or is even likely to occur, the nature of the act is not transformed into one of “violence.” Accordingly, I respectfully concur.

DISSENTING AND WRITING SEPARATELY:

Loughry, J., dissenting:

I would affirm the circu it court’s denial of habeas corpus relief to Petitioner Hundley. The majority completely disregards our well-established precedent indicating that burglary is, by its nature, a crime of violence. In fact, after ar ticulating that this Court has recognized that all of the petitioner’s predicate crimes are crimes of violence, the majority

nonetheless determines that his r ecidivist life sentence violates th e proportionality requirements of Article III, Section 5 of the West Virginia Constitution.

In syllabus point seven of State v. Beck , 167 W.Va. 830, 286 S.E.2d 234 (1981),

this Court held:

The appropriateness of a life re cidivist sentence under our constitutional proportio nality provision found in Article III, Section 5, will be analyzed as follows: We give initial emphasis to the nature of the final offense which trigge rs the recidivist life sentence, although consideration is also given to the other underlying convictions. The primary analysis of these offenses is to determine

10if they involve actual or threatened violence to the person since crimes of this nature have traditionally carried the more serious penalties and therefore ju stify application of th e recidivist statute.

The majority correctly finds that the petitioner’s two predicate offenses, both third offense felony DUIs, properly form the basis of a recidivist sentence. Howeve r, on the issue of whether the petitioner’s final offense, burglary, was sufficient to merit a life se ntence, the majority’s analysis goes badly awry.

First, the majority runs afoul of our law by acknowledging th is Court’s recognition that “burglary [is a] crime[] that by [its] very natu re involve[s] the threat of harm or violence to innocent persons,” State v. Housden, 184 W.Va. 171, 175, 399 S.E.2d 882, 886 (1990), and then immediately contradicts itself by fi nding that the burglary under the specific facts of this case did

not involve actual or threatened ha rm. If burglary by its very nature involves actual or threatened harm, examining the “facts” of the burglary is a transparent attempt to evade the necessary consequence of our precedent.

In addition, in reaching its decision th at the petitioner’s night-time burglary is insufficient to merit a recidivist life sentence, the majority relies on three cases that are wholly inapposite to the facts of the in stant case and “cherry-pic ks” language from the cases to justify its outcome. The majority acknowledges that the burglary in this case was into the basement of an occupied dwelling, Neverthe less, the majority relies on State ex rel. Boso v. Hedrick , 182 W.Va. 701, 391 S.E.2d 614 (1990), despite the fact that the night-time burglary in that case occurred in an unoccupied dwelling. Similarly, the majority select ively relies on language from State v. Davis

, 189 W.Va. 59, 427 S.E.2d 754 (1993), without acknowle dging in that case that the final or triggering felony

was a simple breaking a nd entering of a building, not a dwelling

, which resulted in the theft of approximately $10.00. There is no suggestion that actual violence was used or was threatened in the course of the commission of the crime. The business, at the time, was closed at night and no one was present on the premises.

Id. , 189 W.Va. at 61, 427 S.E.2d at 756 (emphasis added). The final decision relied on by the majority is State v. Miller , 184 W.Va. 462, 400 S.E.2d 897 (1990). In Miller , this Court found a recidivist sentence disproportionate based on th e predicate offenses which were forgery and uttering, false pretenses, and break ing and entering a gas station. Si gnificantly, none of these cases involved the burglary of an occupied dwelling.

In sharp contrast to the cases relied u pon by the majority, the petitioner entered the basement of a dwelling at night while the occupa nts of the dwelling were asleep. Further, the petitioner admitted that he had been drinking on the day of the crime. Obviously, these circumstances created a significant threat of violence to the occ upants of the dwelling. It is instructive to compare the inst ant case with the facts in State v. Housden , wherein this Court upheld a recidivist life sentence imposed on a habitual o ffender for his burglary of the victim’s home even though the offender claimed he was aware that the victim was not at home at the time of the

11burglary. The Court sagely reasone d that this fact “did not rende r the crime one which could be

classified as nonviolent in nature.” 184 W.Va. at 174, 399 S.E.2d at 885.

In its zeal to reach its outcome, the majo rity conveniently ignores the fact that this Court has repeatedly recognized that the crime of bur glary inherently invol ves the threat of

violence. In Martin v. Leverette , 161 W.Va. 547 554-555, 244 S.E.2d 39, 43-44 (1978), this Court indicated that “[b]oth crimes [ burglary and armed robbery] are seri ous and involve the threat of violence against persons, if not actual vi olence in the case of armed robbery.” Id. , at 554-55, 244 S.E.2d at 43-44. Moreover, in State v. Evans , 203 W.Va. 446, 508 S.E.2d 606 (1998), this Court “expressly reject[ed] [the appella nt’s] contention that burglary does not cons titute a crime of

violence.” Id. , at 450, 508 S.E.2d at 610 ( citing Martin v. Leverette , 161 W.Va. 547, 555, 244 S.E.2d 39, 43-44 for the proposition that burglary is a “serious [crime ] and involve[s] the threat of violence against persons”). In the case at bar, the burglary involved the threat of violence to those who were asleep in the dwelling at the time of the burglary. Under a stra ightforward application of this Court’s precedent, the petitioner’s li fe sentence is constitutionally proportionate to his crimes. Accordingly, I respectfully dissent.

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