1 

### STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

State of West Virginia , Plaintiff Below, Respondent

vs.) No. 2 1

- 0507 ( Ritchie County CC

- 43

- 2019

- F

- 45 )

M atthew S. , Defendant Below, Petitioner



### MEMORANDUM DECISION

P etitio ne r M atthew S. , by counsel Jordan West

, appeal s the Circuit Court of Ritchie County’s May 1 2 , 2021, order se ntencing him to a term of incarceration for life, with mercy, following his conviction of third

- offense domestic battery

. 1 Respondent State of West V i rgi n ia

, by counsel Patrick Morrisey and Scott E. Johnson

, filed a response in support of the circuit court’s order . On appeal, petitioner allege s that he received ineffective assistance of counsel and th at his sentence is so disproportionate to the crime f or w hich he was con victed t hat it constitutes cruel and unusual pun ishment.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be signific a ntl y aided by oral argument . Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court’ s or d er is appropria te under Rule 21 of the Rules of Appellate Procedure.

After his indict ment on on e count of th ird

- offense domestic batter y , p etitioner ’ s jur y trial commenced in March of 20 20

. Relevant to this appeal, t he State pres ented testimony from pet i tioner ’ s mother

, the victim of the crime in question. The victim testified that petitioner , while at her home on the morning of the battery, received a phone call that upse t him and made him

1 Con si stent with our lon g

- sta nding practice in cases with sensitive facts, we use initials where necessary to protect the identities of those involv ed in this case. See In re K.H. , 23 5 W. Va. 254, 773 S.E.2d 20 (2015); M eli nd a H. v. William R. II , 230 W. Va . 7 31 , 742 S.E.2d 419 ( 2013) ; State v. Brandon B. , 218 W. Va. 324, 624 S.E.2 d 761 (2005); State v. Edward Charles L. , 183 W. Va. 641, 398 S.E.2d 12 3 (1990). 

### FILED August 3 1 , 2022

EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA2 “ really angry. ” Petitioner requested that th e victim drive h i m i n to town, which she told him she would do after chang ing clothes . When she entered h er be droom to dress, petitioner demanded that she lea ve the door open and repeatedly entered the room. Eventually, t he victim re

- enter ed the k itchen, at which point pet i tio n er demanded that she sit down in a cha ir. According to the victim, petitioner “ shov ed th e chair back ” and “ ch oked [her] then up a gainst the wall. ” While petitioner grabbed the victim ’ s neck, she was unable to breath e. When petitioner finally let go,
t h e v i ctim reminded petitioner th at she had previously suffered from a stroke and told hi m tha t she “ can ’ t take this ” and was “ just too old for it. ” Despite her pleas, petitioner struck her in the chest with a walking sti ck

. The victim started to cry. In re s pon s e , petitioner reportedly “ t old [ her ] to get [herself] together or he was go ing to give [her] a slap down. ” The victim told p etitioner to put his shoes on so that she could drive him where he wanted to go and then t old him she was going to start the ca r . W h en she got to the vehic le

, the v ictim locked it and began backing away from the home

. P etitioner “ tried to come to the car

, ” but the victim was too far away for him to catch up. Th e victim then went to a relative ’ s house an d called 9

- 1

- 1 . Both the rel a tiv e and a

re spond ing officer testified at trial and confirme d that the victim was upset , afr aid, and had visible injuries

. During the victim ’ s testimony, the State play e d the recorded 9

- 1

- 1 call she made following the crime, during which she indicated t hat petitioner “ choked [her] and

. . . threate ne d to h it [he r] with a chair. ” In the recording, the victim went on to indicate that she “ im agine[ d petitioner] t hrea ten ed to kill [her] ” and expressed that she was afraid. While on the phone wit h

e mergency s e rvi c es, the victim expressed fear that petitioner would follow her to the location where she called 9

- 1

- 1 and that

, although law enforcement had been dispatche d, “ [ i]t will be too late if he gets here. ” Ultimately, the jury convicted petit ioner o f t he lon e co u nt f r om the indict ment.

On the final day of petitioner ’ s trial , the State filed a recidivist information in which it

asse rted that petitioner was previously convicted of two f elonies. Specifically, the State indic ated that pe tit ioner was tw ice conv i c ted of third

- offense domestic batter y , once in 201 2 and once in 2014 . According to the record, petitioner admitted to these prior convi cti ons. At a sentencing hearing in August of 2020, the victim requested that the court have merc y on petitioner, as she

a sse r ted that he was taking medication to address his issues. The court also heard from several other individuals, including the following: (1) petitioner ’ s ex

- wife, who testified that petitioner frequently physically abused he r, in cluding while she was pr e gna n t , and that h is physical abuse caused her to have her child prematurely ; (2) petitioner ’ s stepson, who testified t hat petitioner was abusive a nd he feared petitioner , having seen him physically abuse the witness ’ s mother; (3)
p etition er ’ s son, who tes t ifi e d that petitioner “ put [him] through hell

, ” struck h im more times than he could remember, and attacked him so badly that he though t he would die ; and, finally, ( 4) petitioner ’ s daughter, wh o was so overcome with emotion th at sh e required a short reces s , a f

t er which she stated that she feared petition er and w itness ed hi m physically abusing her mother. Ul timately, the court sentenced petitioner to a term of incarceration o f li fe, with mercy, pursuant to W est Virginia Code § 6 1

- 11

- 18

. Thereafter, petition e r w a s resentenced for purposes of appeal. It is from the circuit court ’ s order re imposing this sentence that petitioner appe als.

We have previously held as follows:3 “ ‘The Supreme Court of Appeals reviews sentencing orders

. . . under a deferential abu s e o f discretion standard, unless the order violates statutory or constitutional commands.’ Sylla bus point 1, in part, State v. Lucas , 201 W.Va. 271, 496 S.E.2d 221 (1997).” Syllabus Point 1, State v. Booth , 224 W.Va. 307, 685 S.E.2 d 701 (2009).

Syl. Pt. 1
, S ta te v. Kilmer , 240 W. Va. 185, 808 S.E.2d 867 (2017)

.

On appeal

, petitioner raises two assignments of error

. In his first, petitioner all eges that he received ineffective assistance of trial counsel. Howev er, w e have previously held that

[i]t is the ext r emely rare case when this Court will find ineffective assistance of counsel

. . . on a direct appeal. The prudent defense counsel first develops the record regardin g ineffe ctive assistance of counsel in a h abeas corpus proceeding before the lower cour t , a n d may then appeal if such relief is denied. This Cour t may then have a fully developed record on this issue upon which to more thoroughly review an ineffective assi stance o f counsel claim.

Syl. Pt. 10, Sta te v. Triplett , 187 W. Va. 760, 421 S.E.2d 51 1 (1 9 92). Moreover, we have explained that

[t]he very nat ure of an ineffective assistance of counsel claim demonstrates the inappropriateness of review on direct appeal. To the extent that a defendant relies

on stra tegic and judgment calls of his or her t r ial counsel to prove an ineffective assistance claim, the defendant is at a decided disadvantage. Lacking an adequate record, an appellate court simply is unable to deter mine t he egregiousness of many of the cl aimed deficiencies.

State v. Miller , 194 W. V a. 3 , 15, 459 S.E.2d 114, 126 (1995). In view of the difficulties posed in evaluating such claims at this stage, “ [i]neffective assistance claims raised on direct appeal are presumptively subject to dismissal. ” Stat e v. Campbell

, -- W. Va.

-- , 868 S.E.2d 4 44
, 457 (2022) (citation omitted). Accordingly, we dec line to address in this appeal petitioner ’ s claim that his trial counsel was ineffective because the record has not been developed on this issue. If peti tioner desires to raise this issue, i t mus t first be developed in a habeas corpus proc e eding.

In his second assignment of erro r , petitioner a rgues that the circui t court erred in sentencing him so severely and disproportionately for the crime he was convicted o f that his

se ntence cons titute s cr uel a nd unu sual punishment. He contends, “ Had it no t be e n for the recidivism statute[, he] would have been sentenced to a maximum sentence of not less than one nor more th an five years. ” So, he implies , any sentence in excess of that is unconstitutionally

exces siv e. Petitioner also argues that the inju ries he i nflicted upon his mother were minimal, and he contends that the court i ndicated a “ clear bias ” against him b y ref erring to him as “ Mad Dog Matthew ” and telling him that “ [i]f you would have been a dog , the y w oul d have put you down a long time ag o. ”4 Inde e d

, petitioner is corre ct tha t , ordinarily, the punishment for third

- offense domes tic battery

— where applicable

— i s a term of incarceration of one to five years. See W. Va. Code § 61

- 2

- 28(d). But petitioner was not senten ced s imply for third

- offense d omestic bat t ery ; he w as sentenced as a recidivist, so the applicable sentence is found in the recidivist statute, West Virginia Code § 61

- 11

- 18(d). 2 When his sentence is placed in the proper context, petitioner ’ s pro po r tionalit y cha llenge fails for several reason s. F i rst, this Court has upheld the
const itutio nality of the recidivist statute generally

. See Syl. Pt. 3, Martin v. Leverette , 161 W. Va. 547, 244 S.E.2d 39 (1978) ( “ Selective enforcement by a prose cutor of t he habitual criminal statute, W.Va.Code, 61

- 11

- 18, and t he enhanced sentence provided t hereu nder, are not pe r se violative of the Equ al Protection or Cruel and Unusual Punishment Clauses of the West Virginia or the United States Constitutions. ” ).

Second :

Wh ere an accused is convicted of an offense punish ab le by confinement in the penitentiary and, after conviction but before sentencing, an information is filed against him setting forth one or more previous felon y convictions, if the jury find or, after be ing duly cautioned, the accused acknowledges in ope n co u rt that he is the same person named in the conviction or convictions set forth in the information, the court is without authority to impose any sentence oth er than as prescribed in Code, 61

- 11

- 18 , as ame nded.

State v. Norwood , 2 42 W. Va. 149, 157, 832 S. E .2 d 7 5 , 83 (2019) (qu oting Sy l. Pt. 3, State ex rel. Cobb v. Boles , 149 W. Va. 365, 141 S.E.2d 59 (1965); Syl. Pt. 3, State ex rel. Daye v. McBride , 222 W. Va. 17, 2 2, 658 S.E.2d 547, 552 (2007) ) (emp has is added). Stated another way

,
“ th e punishment for t he th ird f elony c onviction is an automatic life sentence regardless of the

2 According to West V irgin ia Code § 61

- 11

- 1 8 (d),

[w] hen it is det er mined, as provided in § 61

- 11

- 19 of t his code, that suc h per son shall have been twice before convicted in the United States of a crime punishable by imprisonment in a state correc tional facility which has t he same or substantially s imilar elements as a q ua lifying offense, the person shall b e sentenced to impri sonme nt in a state correctional facility for life: Provided, That prior convictions arising from the same transaction or ser ies of transactions shall b e consid ered a single off e nse for purposes of th is section: Provided, however

, That a n offense which woul d oth erwise constitute a qualifying offense for purposes of this subsection and subsection (b) of this section shall not be considered if more than 20 years ha ve elapsed betwee n that offense and t he

co nduct underlying the curren t charge

. On appeal, petiti oner does not dispute that all of the crimes upon which his life sentence w as predicated are valid qualifying offenses that occurred wel l within twenty years o f his triggering

o ffense.5 nature of th e penalty for the underlying third felony

. ” State v. L ane , 241 W. Va . 532, 539, 826 S.E.2d 657 , 664 (2019) (emphas is added) (citation o mitted)

. While petitioner surely w ould have
p referred to have be en se ntence d in a vacuum without consideration of hi s repeated felony of fenses or the explici t req uirements of the recidivist statute , the pronounc em ents quoted above make cl ear that the court was required to impose a life rec idivi st se ntence

.

On appeal

, petitioner would have thi s Court simply compare t he sentence fo r third

offense dome stic battery to the sentence the circuit cour t i mposed a nd conclude that the disparity bet ween the two automatically renders his sentence unco nstit ution al

. T his is not the appropriate analysis. Inst ead, we note the following :

“The appropriateness of a lif e rec idivist sentence under our constitutional proportionality provision foun d in Artic le III, Section 5, will be analyzed as follows: We give init ial e mphasis to the nature of the final offense whi ch triggers the recidivist life sentence, although conside ratio n is also given to the other underlying convictions. The primary analysi s of these of fenses is to determine if they involve actual or thr eaten ed vi olence to the person since crimes of this natu re have traditionally carried the more serious penalties a nd th erefore justify application of the recidivist statute.” Syllabus Point 7

, State v. Be ck , 167 W.Va. 830, 831, 286 S.E.2d 234 (1981).

Kilm er , 2 40 W. Va. at 185, 808 S.E.2d at 868, S yl. P t. 3. Th ese guidelines were recently modified by syllabus point 12 of S tate v. Hoyle , 242 W. Va. 599, 836 S.E.2d 817 (2019), where we held as f ollows :

F or purposes of a life recidivist conviction under West Virgi nia C ode § 61

- 11

- 18(c), two of the three felony con victions considered must have involved either (1) actual v iolen ce, (2) a threat of violence, or (3) substantial impact upon the victim such that har m results. If this threshold is not met, a life reci divis t

con viction is an unconstitutionally disproportion ate punishment under Article III, Section 5 of the West Vi rgini a Const itution.

The record shows that this was petitioner ’ s third convi ction for thi rd

- offense domestic battery and that the trigger ing crime invo lved both actual and threatened viol ence to petitioner ’ s mother, a n elderly individual who suffered a stroke prior to the v iolen ce petitio ner perpetrated against her. Further, several individ ual s , incl uding peti tioner ’ s children, testified to his past phys ical abuse and its impact on them an d their loved ones. As t he recidivist statute “ is directed at persons who per sist in criminality after having been convict ed and sentence d once or twice, a s t he case may be, on a penitentiary offense, ” Norwood

, 242 W . V a

. at 151 , 832 S.E.2d at 76
, S yl. P t. 5, in part , petitioner is the exact type of perpetr ator the recidivist statute was designed to address.

We find further that p etitioner ’ s attempts to glo ss o ver his v iolent conduct and his claim that the sent enc ing co u r t was biased are similarly unavailing. Peti tioner ’ s focus on the perceived severity of the injuries he inflicted u pon h is own mother i gno res not only other probative evidence concernin g the imp act of his conduct on her and his past abu ses, but a lso th e f a c t that6 the “ primary analysis ” in these types of challenges is whether the subject offenses involved actual or thre atene d violence. Unques tionably

, they d id . W hether petitioner could have b at ter ed his mother more sev erely is immaterial

, and we re fuse t o a c c ept petitioner ’ s minimization of his conduct during both the triggering offense and th roughout the d omest ic batt eries h e has seri ally perpetrated.

Li kewise, his claim of “ clear bias ” is una vai l ing

. Criti cally, petitioner failed to include
any a uthori ty c o ncerning bias from a sent encing court . As the Su preme Court has noted,

[t] he judge who presides at a trial may, upon compl etion of the evidence, be exceedingly ill disposed towards the defe nda nt, who has been shown to be a thoroughly reprehensi ble pe rso n

. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were pr operly and necessarily acquired in the course of the proceedings, and ar e i ndeed sometimes (as in a bench trial) necessary to c omplet ion o f the judge ’ s task.

Liteky v. U.S.

, 510 U.S. 540, 550

- 51 (1994). Whil e the lang uage to wh ich petitio ner cites may demonstrate an ill disposition toward him, petitioner has failed to establi sh anything close to bias. Further

, petitioner also fai ls to eve n attempt to explain how th is alleged bias prejudiced him be low. Importantly, petitioner ignores the fact that the circuit court was without discretion to deviate from the commands of West Vir gin ia Code § 61

- 11

- 18 (d) . Th at statute directs

, in

re le va nt p art , that

[w] hen it is determined

. . . that such person shall have been twice before convicted in the United States of a crime punishable by imprisonment in a sta te correctional facility which ha s the same or substantially similar elements as a qu al ifyi ng o f fense, the p erson shall be sentenced to imprisonment in a state correctional facility for life

.

Id. These circumstances were met, so petitioner was subject to an “ automatic life sentence

. ” L an e , 241 W. Va. at 539, 8 26 S.E.2d at 664 (cita tion o m itted)

.

F inally

, in State v. Mauller , No. 19

- 0829, 2020 WL 4355079 (W. Va. July 30, 2020)(memorandum de cision), this Cou rt upheld a recidiv ist life sentence in almost identical circumstances. There, the triggering offense was d omestic batt ery, third or s ubsequ ent o ffense, and the two predicate offenses were domestic battery, t hird o r subsequent offense. Id. at *2. We found that the defendant ’ s recidivist life sentence was constitut ional because “ any f ool wo uld know that his co nduct was within the reach of the r eci d i vist statute, because any reasonable person would know th at h i s repeated acts of domestic violence are forbidden by the law

. ” Id. at *4 (citation omitted). As such, petitioner is entitled to no relief.

F or the foregoing reasons, we find no err or in the d ecision of th e circuit court, and its May 12 , 2021, order is hereby affirmed.

Affirmed.7 ISSUED : 

### August 3 1 , 2022

CONCURRED IN BY :

Chief Justice John A. Hutchison Justice Elizabeth D. Wal ker Justice Tim A r ms tead Justice William R. Wooton Justice C

. Haley B unn