STATE of West Virginia Plaintiff Below, Respondent v. Marc A. KILMER Defendant Below, Petitioner

No. 15-0859

Supreme Court of Appeals of West Virginia.

Submitted: September 13, 2017 Filed: November 14, 2017

Douglas F. Kobayashi, Esq., KOBY LAW, Martinsburg, West Virginia, Counsel for the Petitioner

Catherine Wilkes-Delligatti, Esq., Christopher C. Quasebarth, Esq., Berkeley County Prosecuting Attorneys' Office, Martinsburg, West Virginia, Counsel for the Respondent

Kevin J. Watson, Esq., Martinsburg, West Virginia, Counsel for the Petitioner

WALKER, Justice:

Marc A. Kilmer was sentenced to life in prison under the recidivist statute based upon a predicate felony conviction for unlawful assault and two prior felony convictions for driving while license revoked for driving under the influence (DUI). Mr. Kilmer argues on appeal that his life sentence violates the proportionality clause of Article III, Section 5 of the West Virginia Constitution because the two prior felony offenses do not involve actual or threatened violence. The State asserts that the violence of the predicate felony for unlawful assault satisfies the goals of the recidivist statute and that Mr. Kilmer's two prior felony convictions are factually similar to those in other cases in which we have upheld recidivist life sentences. We conclude that the felony offense of driving on a license revoked for DUI does not involve actual or threatened violence and reverse the circuit court's imposition of Mr. Kilmer's recidivist life sentence.

**I. FACTUAL AND PROCEDURAL BACKGROUND**

On February 19, 2014, a Berkeley County grand jury issued a seven-count indictment against Mr. Kilmer based on a violent incident during which he inflicted serious injuries upon his former girlfriend. The charges included two counts of malicious assault, two counts of domestic battery, two counts of burglary, and one count of sexual assault in the first degree. At trial, the jury found Mr. Kilmer guilty on two counts of unlawful assault (a lesser included offense under malicious assault), two counts of domestic battery, and one count of sexual assault in the second degree (a lesser included offense under first degree sexual assault). The jury acquitted Mr. Kilmer on the two counts of burglary.

Following trial, the State filed a recidivist information requesting a sentence of life in prison under West Virginia Code § 61-11-18(c) based on Mr. Kilmer's conviction on count one for unlawful assault and on his prior convictions in 2010 and 2012 of two unrelated felonies for third-offense driving while license revoked for DUI. At the subsequent hearing, Mr. Kilmer admitted the prior felony convictions under West Virginia Code § 17B-4-3(b).1

*869Before sentencing, Mr. Kilmer filed a motion opposing imposition of a life sentence on the grounds that it violated the proportionality clause in Article III, Section 5 of the West Virginia Constitution. The State responded that the life sentence satisfied the requirements of the recidivist statute. The circuit court denied Mr. Kilmer's motion and sentenced him to life in prison.2 On appeal, Mr. Kilmer challenges this sentence and also asserts that the circuit court abused its discretion by denying his "Motion for Judgment of Acquittal and Vacating the Jury Verdict" on the grounds that the evidence was insufficient for the jury to have found guilt beyond a reasonable doubt.3

**II. STANDARD OF REVIEW**

" 'The Supreme Court of Appeals reviews sentencing orders ... under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands.' Syllabus point 1, in part, *State v. Lucas,*201 W.Va. 271, 496 S.E.2d 221 (1997)."4 With this standard in mind, we consider the constitutional challenge raised in this case.

**III. DISCUSSION**

The issue before us is whether Mr. Kilmer's recidivist life sentence5 violates the proportionality clause of the West Virginia Constitution, which states in relevant part as follows:

> Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted. Penalties shall be proportioned to the character and degree of the offence.6

As we have explained, proportionality applies to all criminal sentences but is more germane to recidivist life sentences:

> 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.7

While the constitutionality of the recidivist statute is well-established in our jurisprudence, we have "historically adopted a rather strict and narrow construction" based upon its harsh result.8 We also consider the underlying purpose of the statute-"the imposition of increased confinement for the dangerous criminal who repeatedly commits serious crimes."9 With this background in mind, we determine whether Mr. Kilmer's sentence offends constitutional limitations.

*870We consider the recidivist life sentence in this case according to the objective test of compliance with the proportionality clause. As we have explained:

> The appropriateness of a life recidivist sentence under our constitutional proportionality provision found in Article III, Section 5, will be analyzed as follows: We give initial emphasis to the nature of the final offense which triggers the recidivist life sentence, although consideration is also given to the 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 the recidivist statute.10

In *State v. Beck* , we applied this test and affirmed a recidivist life sentence based upon a predicate felony conviction for first degree sexual assault of the defendant's ten-year-old stepdaughter.11 The underlying felony convictions were for unlawful assault and for interstate transportation of a stolen vehicle.12 In *Beck* , we noted that the violent nature of the felony convictions at issue in that case were distinguishable from those we considered in *Wanstreet v. Bordenkircher* ,13 a case decided four months prior to *Beck.*

In *Wanstreet,* we considered a challenge to a recidivist life sentence imposed based on the predicate felony of forgery of a $43.00 check.14 The two prior felony convictions analyzed in that case were forgery of an $18.62 check and arson of a barn.15 We concluded that the recidivist life sentence violated proportionality based on the nonviolent nature of the predicate felony of forgery and "the similar nature of the two previous crimes" of forgery and arson of a barn.16 In *Wanstreet* , we emphasized that ignoring the gravity of the underlying offenses in the context of an analysis of the proportionality clause "would ignore the rationality of our criminal justice system where penalties are set according to the severity of the offense."17

The State urges us to affirm Mr. Kilmer's recidivist life sentence because the predicate felony conviction for unlawful assault establishes that he is violent-an issue not before us in *Wanstreet* or *Beck* . However, the State's assertion that the violence of the triggering felony alone justifies the imposition of the recidivist life sentence in this case is inconsistent with our decision in *State v. Miller* .18 In *Miller* , we reversed a recidivist life sentence in spite of the violent predicate felony conviction of unlawful assault (defendant shot the victim in the hand and the stomach).19 The prior felony convictions in *Miller* were breaking and entering, forgery and uttering, and false pretenses.20 As we explained:

> ... we generally require that the nature of the prior felonies be closely examined. While not exclusive, the propensity for violence is an important factor to be considered before applying the recidivist statute.

> *871In the case now before us, we recognize that although the appellant's 1986 unlawful assault conviction was for a violent felony, none of his three underlying felonies actually involved violence.21

Our holding in *Miller* establishes that even if, as in this case, the predicate felony conviction involves violence, but none of the prior felony convictions involve actual or threatened violence, imposing a recidivist life sentence violates proportionality.22

The State also argues that *Miller* is inapplicable to this case because the prior felonies in that case occurred over the course of two decades. In contrast, Mr. Kilmer was released from prison just months before he unlawfully assaulted his former girlfriend. By this assertion, the State suggests that the length of time between the predicate offense and the two prior felony convictions is a factor in the application of the recidivist statute. We find that the holding of this case does not turn on the length of time between the two prior felony offenses and the predicate felony conviction. The material question is whether the two prior felony convictions involve actual or threatened violence. Thus, the State's timing argument is irrelevant.

Finally, the State argues that Mr. Kilmer's prior felony convictions for third-offense driving while license for revoked for DUI involve actual or threatened violence based upon a comparison with our decision in *State ex rel. Appleby v. Recht.*23 In *Appleby* , we considered whether a recidivist life sentence violates proportionality principles when based on a predicate felony of third-offense DUI and on three prior convictions for the same felony offense.24 We concluded unequivocally that the DUI convictions involved actual or threatened violence and explained:

> Mr. Appleby's record includes an astounding *four* third-offense driving under the influence felony convictions (and a grand total of *eight* acts of driving under the influence), and one unlawful assault conviction. We have little trouble in finding that driving under the influence is a crime of violence supporting imposition of a recidivist sentence.25

We concluded that the potential or threat of violence is always present in the case of DUI because " '... driving while intoxicated inherently creates a grave risk of injury to persons and property and raises very significant concerns for public safety.' "26

In contrast, we find that no such element of danger is inherently part of a conviction for driving while license revoked for DUI. The State cites no authority to support the notion that simply driving a vehicle on a revoked license, whether revoked as a result of a DUI or otherwise, is violent or renders the offender a risk to the public. Further, the State fails to offer any proof that these convictions have predisposed Mr. Kilmer or any other criminal defendant in a factually similar situation to a lifetime of violence. Thus, we decline to extend the holding of *Appleby* to the present case. We hold that the felony offense of driving while license revoked for DUI under West Virginia Code § 17B-4-3(c) is not an offense that involves actual or threatened violence to the person for purposes of invoking the recidivist statute, West Virginia Code § 61-11-18(c). The recidivist life sentence imposed on Mr. Kilmer based upon the predicate felony conviction for unlawful assault, together with two prior non-violent felony convictions, violates the proportionality principle in Article III, Section 5, of the West Virginia Constitution.

**IV. CONCLUSION**

The sentence of life in prison imposed by the circuit court order is reversed and the case is remanded for resentencing on count one, unlawful assault.

REVERSED AND REMANDED.

*872CHIEF JUSTICE LOUGHRY dissents and reserves the right to file a dissenting opinion.

1

The pertinent statute stated:

> Any person who drives a motor vehicle on any public highway of this state at a time when his or her privilege to do so has been lawfully revoked for driving under the influence of alcohol, ... for the third or any subsequent offense, the person is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than three years and, in addition to the mandatory prison sentence, shall be fined not less than $3,000 nor more than $5,000.

W.Va. Code § 17B-4-3(b)(2015).

2

Sentences for the other convictions were time served for the two counts of domestic battery, one to five years for the second count of unlawful assault and ten to twenty-five years for sexual assault in the second degree. These sentences are not at issue on appeal.

3

Based upon our review of the appendix record, we summarily conclude that the circuit court did not abuse its discretion in denying Petitioner's "Motion for Judgment of Acquittal and Vacating the Jury Verdict." Thus, we do not address it on the merits.

4

Syl. Pt. 1, *State v. Booth,*224 W.Va. 307, 685 S.E.2d 701 (2009).

5

The circuit court imposed Mr. Kilmer's life sentence under West Virginia Code § 61-11-18(c) (2014), which provides:

> When it is determined, as provided in section nineteen of this article, that such person shall have been 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.

6

W. Va. Const. Art. III, § 5. Mr. Kilmer appears to assert concurrently a violation of the Eighth Amendment to the United State Constitution, but concedes that he "does not complete a deep analysis of the federal law on this point." He states that West Virginia's Constitution has a stricter standard than its federal counterpart. *See**State v. Cooper* , 172 W.Va. 266, 304 S.E.2d 851 (1983). Based upon our analysis, we need not reach the federal constitutional issue-whether waived by Mr. Kilmer or not.

7

Syl. Pt. 4, *Wanstreet v. Bordenkircher* , 166 W.Va. 523, 276 S.E.2d 205 (1981).

8

*Id.* at 525, 276 S.E.2d at 207-08.

9

*Id.* at 533, 276 S.E.2d at 211.

10

Syl. Pt. 7, *State v. Beck* , 167 W.Va. 830, 286 S.E.2d 234 (1981) (emphasis added).

11

*Id.* at 832, 286 S.E.2d at 237.

12

*Id.* at 846, 286 S.E.2d at 244.

13

166 W.Va. 523, 276 S.E.2d 205.

14

*Id.* at 525, 276 S.E.2d at 207.

15

*Id.* at 535, 276 S.E.2d at 213. While the *Wanstreet* court noted in its factual discussion that the defendant had also served three years in the penitentiary for driving a motor vehicle without a license-technically a third underlying felony-the Court's analysis of the prior felony offenses omitted any discussion of the driving without a license offense. *Id.* at 525, 535, 276 S.E.2d at 207, 211.

16

*Id.* at 537-38, 276 S.E.2d at 214.

17

*Id.*

18

184 W.Va. 462, 400 S.E.2d 897 (1990).

The State argues that Mr. Kilmer was convicted of three felonies involving the incident at issue here. *Miller* , the State points out, involved a conviction on one count of unlawful assault. But the recidivist statute limits the inquiry to the predicate felony and the two prior felony convictions. Mr. Kilmer will serve the sentences related to the crimes for which he was convicted, which is in keeping with the constitutional principle of proportionality between the penalty and the offense established in Article III, Section 5.

19

*Id.* at 465, 400 S.E.2d at 900.

20

*Id* . at 463, 400 S.E.2d at 898.

21

*Id* . at 465, 400 S.E.2d at 900.

22

*Id.*

23

213 W.Va. 503, 583 S.E.2d 800 (2002).

24

*Appleby* , 213 W.Va. at 507-08, 583 S.E.2d at 804-05.

25

*Id* . at 516, 583 S.E.2d at 813 (emphasis in original) (footnote omitted).

26

*Id.* at 517, 583 S.E.2d at 814 (quoting, in part, *State v. Croston* , 124 Idaho 471, 860 P.2d 674, 675-76 (Idaho Ct. App. 1993) ) (footnote omitted).

LOUGHRY, Chief Justice, dissenting:

I dissent to the majority's decision to reverse the petitioner's recidivist sentence. This sentence-life in prison with the possibility of parole-is mandated by the Legislature through West Virginia Code § 61-11-18(c) (2014): "When it is determined ... that such person shall have been twice before convicted" of a felony, "the person *shall* be sentenced to be confined in the state correctional facility for life." *Id* . (emphasis added).1 Contrary to the majority's conclusion, there is nothing constitutionally disproportionate about imposing a sentence of life with the possibility of parole upon a criminal who brutally beats and then sexually assaults an injured woman, when these violent offenses represent an escalation in the culprit's existing felonious criminal record.

Many factors must be considered when addressing the proportionality of a recidivist life sentence under West Virginia Constitution article III, section five. In the analysis, initial emphasis is placed on the nature of the "final" felony, i.e., the offense for which the recidivist life sentence is imposed:

> The appropriateness of a life recidivist sentence under our constitutional proportionality provision found in Article III, Section 5, will be analyzed as follows: We give initial emphasis to the nature of the final offense which triggers the recidivist life sentence, although consideration is also given to the 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 the recidivist statute.

Syl. Pt. 7, *State v. Beck* , 167 W.Va. 830, 286 S.E.2d 234 (1981). "Although sole emphasis cannot be placed on the character of the final felony, it is entitled to closer scrutiny than the other convictions, 'since it provides the ultimate nexus to the sentence.' " *State v. Deal* , 178 W.Va. 142, 147, 358 S.E.2d 226, 231 (1987) (quoting *Wanstreet v. Bordenkircher* , 166 W.Va. 523, 534, 276 S.E.2d 205, 212 (1981) ). In addition to considering the actual violence surrounding the perpetrator's felonies, a court takes into account the *possibility* for violence and harm: "Rather clearly our law indicates that crimes involving the potentiality of violence fall in the category of those supporting the imposition of a life sentence under the recidivist statute." *State v. Oxier* , 179 W.Va. 431, 433, 369 S.E.2d 866, 868 (1988) (recognizing that crime of breaking and entering carries potential for violence and danger to life); *see also**State v. Housden* , 184 W.Va. 171, 175, 399 S.E.2d 882, 886 (1990) (concluding that burglary and grand larceny involve "the threat of harm or violence" and justify imposition of recidivist life sentence).

Moreover, while an examination of the violent (or potentially violent) nature of the perpetrator's felonies is part of the proportionality analysis, it is certainly not the sole consideration. *See**State v. Miller* , 184 W.Va. 462, 465, 400 S.E.2d 897, 900 (1990) (Acknowledging that while propensity for violence is "an important factor[,]" it is "not [the] exclusive" factor to be considered in a recidivist analysis); *c.f.**State ex rel. Chadwell v. Duncil* , 196 W.Va. 643, 649, 474 S.E.2d 573, 579 (1996) (considering facts surrounding theft of almost $1,500 in goods from several stores to conclude that five-year recidivist enhancement under W.Va. Code § 61-11-18(a) was constitutionally proportionate for defendant convicted of felony grand larceny who had prior felony conviction of non-violent third offense shoplifting). When considering any claim of disproportionate *873sentencing, this Court considers many different factors pursuant to two tests: one subjective and one objective. Under the subjective test, a sentence is unconstitutional if it "shocks the conscience and offends fundamental notions of human dignity[.]" Syl. Pt. 5, in part, *State v. Cooper* , 172 W.Va. 266, 304 S.E.2d 851 (1983). The objective test instructs us to consider such things as "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." *Wanstreet* , 166 W.Va. at 523-24, 276 S.E.2d at 207, syl. pt. 5, in part.

Turning to the facts of this appeal, the petitioner's final felony, unlawful assault, was part of a horribly violent attack that he perpetrated upon his former girlfriend.2 The evidence at trial indicated that, after refusing the victim's demand that he leave her home, the petitioner grabbed the victim, threw her on the hood of a car, picked her up again, and threw her on the floor of a carport causing her head to strike concrete. He then began choking the victim after which he threw her body toward a mud room. After knocking her to the mud room floor, he resumed choking her. Because he was searching for her hidden house key and was growing increasingly agitated, the victim was forced to give him the key. Once inside the victim's home, the petitioner grabbed the victim and slammed her to the floor. When she tried to stand, she fell because of terrible pain in her hip that was later determined to be caused by a fractured pelvis. The petitioner picked the victim up again, slammed her on the bedroom floor, and again choked her. He tried to remove her pants while she attempted to fend him off. The petitioner removed his belt, which the victim feared he would use to choke her. Afraid for her life, and despite her broken pelvis and other injuries, the victim was forced to endure the petitioner's sexual assault upon her. Thereafter, the victim was unable to walk without assistance because of pain from her injuries. Medical evidence showed the petitioner beat the victim so badly that in addition to breaking her pelvis, he fractured three of her ribs, caused one of her lungs to deflate, and left her body covered with bruises and strangulation marks. The victim was hospitalized for almost two weeks, required the assistance of a walker while regaining the ability to walk, and could not work for two months. There can be no dispute that this was a heinous crime of violence. Indeed, this Court has previously recognized that unlawful assault is a crime of violence for purposes of a proportionality analysis. *See**Miller* , 184 W.Va. at 465, 400 S.E.2d at 900 (stating that unlawful assault is "unquestionably a violent crime").

The petitioner's two prior felonies, which must be taken into account but receive less scrutiny than the current offense,3 do not change the outcome of the proportionality analysis. The petitioner was convicted of driving while his license was revoked *because* he drove a vehicle while under the influence of alcohol or drugs ("DUI"), in violation of West Virginia Code § 17B-4-3(b) (2013 & Supp. 2017).4 Contrary to the petitioner's *874argument, his license was not revoked for some *malum prohibitum* reason, such as the failure to renew his driver's license or pay parking tickets. If that had been the situation, these crimes would never have constituted felonies. Pursuant to West Virginia Code § 17B-4-3(a),5 the crime of driving while revoked for some reason *other than DUI* is always a misdemeanor, even if committed three or more times. However, in West Virginia Code § 17B-4-3(b), the Legislature expressly made a third or subsequent offense of driving while revoked *for DUI* a felony punishable by a "mandatory prison sentence."6

The obvious reason why the offense of driving while revoked for DUI is punished more severely than other forms of driving on a revoked license, is the dangerous nature of DUI and the importance to public safety of keeping drunk drivers from returning to the roads. This is the same reason why the Court concluded that DUI is a crime of potential violence supporting the imposition of a recidivist sentence. *See**State ex rel. Appleby v. Recht* , 213 W.Va. 503, 583 S.E.2d 800 (2002). When a person drives drunk, "[i]t is sheer fortuity ... that he killed no pedestrians while behind the wheel." *Appleby* , 213 W.Va. at 515, 583 S.E.2d at 812 (citation and internal quotation marks omitted). Notably, the petitioner had to commit this serious crime at least four separate times to rack up two felony convictions.7

When the petitioner's two prior felonies are considered in conjunction with the multiple violent felonies he committed against his ex-girlfriend in the instant case, it is clear that the petitioner has demonstrated a pattern of undeterred, escalating felonious behavior. Avoiding such repetition and escalation is exactly what the recidivist statute seeks to prevent:

> The primary purpose of our recidivist statutes, W.Va. Code, 61-11-18 (1943), and W.Va. Code, 61-11-19 (1943), is to deter felony offenders, meaning persons who have been convicted and sentenced previously on a penitentiary offense, from committing subsequent felony offenses. The statute is directed at persons who persist in criminality after having been convicted and sentenced once or twice, as the case may be, on a penitentiary offense.

Syl. Pt. 3, *State v. Jones* , 187 W.Va. 600, 420 S.E.2d 736 (1992) ; *accord**Appleby* , 213 W.Va. at 517, 583 S.E.2d at 814 (" West Virginia Code § 61-11-18 is designed to deter those who are incapable of conforming their conduct to legitimately enacted obligations protecting society.... States have a valid interest in deterring and segregating habitual criminals ... and a compelling interest in ensuring the safety of the public roadways.") (internal citations and quotation marks omitted).

*875To that end, the Legislature ordered that persons with three felony convictions "shall be sentenced to ... [prison] for life." W.Va. Code § 61-11-18(c).

Having considered this matter in terms of both subjective and objective considerations, I am convinced that the petitioner's recidivist life sentence should stand. Imposing a life sentence with the possibility of parole upon a three-time felon who brutally beat and sexually assaulted a woman, certainly does not shock my conscience. Moreover, objective considerations weigh in favor of this recidivist sentence, including the violent nature of the final felony, the Legislature's intent to punish with a "mandatory prison sentence" the crime of driving while revoked for DUI, and the deterrent purpose underlying the recidivist statute.

In reversing this recidivist sentence, the majority ignores many relevant considerations, including the horribly violent nature of the petitioner's unlawful assault, to focus entirely upon the nature of the petitioner's prior felonies. Then, the majority fails to recognize that serious safety concerns underlie the revocation of a driver's license for DUI. The majority's narrow, short-cited analysis is plainly contrary to our law. Because I find no basis on which to vacate the recidivist life sentence, I respectfully dissent.8

1

When enacting the recidivist statute, the Legislature made a public policy decision to punish repeat felons more harshly. " 'The Legislature has power to create and define crimes and fix their punishment [.]' Syl. Pt. 2, in part, *State v. Woodward* , 68 W.Va. 66, 69 S.E. 385 (1910)." Syl. Pt. 2, *State v. Butler* , 239 W.Va. 168, 799 S.E.2d 718 (2017). It is most certainly *not* the job of this Court to second-guess the Legislature on matters of public policy. *See* Syl. Pt. 2, in part, *Huffman v. Goals Coal Co.* , 223 W.Va. 724, 679 S.E.2d 323 (2009) ("This Court does not sit as a superlegislature, commissioned to pass upon the political, social, economic or scientific merits of statutes pertaining to proper subjects of legislation.").

2

The jury found the petitioner guilty of two counts of unlawful assault, West Virginia Code § 61-2-9(a) (2014 & Supp. 2017); two counts of domestic battery, West Virginia Code § 61-2-28(a) (2014 & Supp. 2017); and sexual assault in the second degree, West Virginia Code § 61-8B-4 (2014).

3

As explained above, "although sole emphasis cannot be placed on the character of the final felony, it is entitled to closer scrutiny than the other convictions[.]" *Miller* , 184 W.Va. at 465, 400 S.E.2d at 900 (citation and internal quotation marks omitted).

4

West Virginia Code § 17B-4-3(b) provides:

> (b) Any person who drives a motor vehicle on any public highway of this state at a time when his or her privilege to do so has been lawfully revoked for driving under the influence of alcohol, controlled substances or other drugs, or any combination thereof, or for driving while having an alcoholic concentration in his or her blood of eight hundredths of one percent or more, by weight, or for refusing to take a secondary chemical test of blood alcohol content, is, for the first offense, guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for a period of not less than thirty days nor more than six months and shall be fined not less than $100 nor more than $500; for the second offense, the person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for a period of not less than six months nor more than one year and shall be fined not less than $1,000 nor more than $3,000; for the third or any subsequent offense, the person is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than three years and, in addition to the mandatory prison sentence, shall be fined not less than $3,000 nor more than $5,000.

5

West Virginia Code § 17B-4-3(a) provides:

> (a) Except as otherwise provided in subsection (b) or (d) of this section, any person who drives a motor vehicle on any public highway of this state at a time when his or her privilege to do so has been lawfully suspended or revoked by this state or any other jurisdiction is, for the first offense, guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $500; for the second offense, the person is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $500; for the third or any subsequent offense, the person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for a period of not less than thirty days nor more than ninety days and shall be fined not less than $150 nor more than $500.

6

*See supra* , note 4.

7

In accordance with West Virginia Code § 17B-4-3(b), only the petitioner's third and fourth convictions for driving while revoked for DUI constituted felonies. However, the fact that these two crimes were enhanced to become felonies is irrelevant to the recidivist analysis. *See* Syl. Pt. 3, in part, *State v. Williams* , 196 W.Va. 639, 474 S.E.2d 569 (1996) ( "Despite the fact that a third offense DUI felony conviction ... 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[.]"); *Chadwell* , 196 W.Va. at 647, 474 S.E.2d at 577 (concluding that felony third offense shoplifting may be used for recidivist enhancement).

8

I also find fault with the majority's failure to address one of the petitioner's two assignments of error; specifically, his claim that the circuit court erred by denying his motion for judgement of acquittal on the grounds of insufficiency of the evidence. The evidence of record clearly demonstrates that there was sufficient evidence to convict the petitioner-yet the majority refuses to even discuss this assignment of error. Perhaps the majority ignored this issue because cataloguing the evidence would highlight the exceptionally violent nature of the petitioner's recent crimes and thus detract from the majority's flawed analysis of the proportionality issue.