1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia

, Plaintiff B elow

, Respondent

v s

. ) No. 19

- 0962 ( Wayne County 18

- F

- 263 and 19

- F

- 066 )

Roger Dale Blackburn

, Defendant B elow

, Petitioner



### MEMORANDUM DECISION

Petitioner Roger Dale Blackburn , by counsel Matthew D. Brummond , appeals the Circuit

Court of Wayne County’s September 26 , 20 19

, sentencing order

. Respondent the State of West Virginia

, by counsel Scott E. Johnson

, filed a response to which petitioner filed a reply

. 1

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 significantly 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 is appropriate under Rule 21 of the Rules of Appellate Procedure. 2

Petitioner states that while he maintains his innocence, when viewing the evi dence in the light most favorable to the jury’s verdict

, the State introduced sufficient evidence to show that he broke into a residence and associated outbuildings. The victim reported coming home to destroyed and missing property. In addition, security f ootage from a pawn shop showed petitioner selling rings taken from the residence. Further, police found a tire iron at the victim’s residence that tested positive for petitioner’s DNA, and neighbors saw petitioner, or his truck, appearing to case the

area when the homeowner victim was away.

During the trial, petitioner claimed that he bought the rings from a third party who had access to his vehicle and its tire iron. He also presented an alibi defense. However, the jury convicted him of one count of burglary, one count of grand larceny, one count of destruction of

1 Petitioner also submitted a notice of additional authority on January 13, 2021.

2 On May 29, 20 20 , p etitioner filed a motion to summarily reverse by memorandum decision. Because this memorandum decision affirms petitioner’s life recidivist sentence, we find that petitioner’s motion is moot. 

### FILED

March 2, 2021

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 property, and three counts of breaking and entering. The State filed a recidivist information alleging that petitioner had previously been convicted of daytime burglary and receiving stolen property in 2016 and attempt to commit gra nd larceny in 2012. Petitioner admitted that he was the

one convicted of those crimes but argued against the imposition of the life sentence under the West Virginia Constitution’s Proportionality Clause. 3 In doing so, he asserted that his triggering and

p redicate felonies did not involve actual or threatened violence.

On August 27, 2019, the circuit court entered its “Sentence Order” finding that petitioner had been convicted of one count of burglary, one count of grand larceny, one count of felony

destru ction of property, and three counts of breaking and entering. The court noted that it had considered petitioner’s motion for an alternative sentence; however, it denied that motion. The circuit court went on to address the State’s motion to enhance petitio ner’s sentence to life imprisonment, pursuant to West Virginia Code § 61

- 11

- 19. According to the recidivist information, petitioner had been previously convicted of two felonies. 4 In addition to the imposition of costs and fines, the circuit court ordered that petitioner be confined to the penitentiary for the rest of his natural life, pursuant to West Virginia Code § 61

- 11

- 18(c) and Information No.

19

- F

- 66. Petitioner was resentenced for purposes of appeal by order entered on September 26, 2019. He appeal s from that order.

As we have previously stated,

“‘[t]he 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) .” Syllabus Point 2, State v. Georgius

, 225 W. Va. 716, 696

S.E.2d 18 (2010)

.

Syl. Pt. 1, State v. Varlas

, -- W. Va.

-- , 844 S.E.2d 688 (2020).

On appeal, petitioner asserts a single assignment of error:

3 Petitioner’s counsel asked the circuit court to “look at the appropriat eness of the recidivist statute” and argued that it should look at “not only the crime that triggers the recidivist portion of it, but also the prior acts.” As the State pointed out below, in 2016 petitioner was on parole for receiving stolen property and burglary

. The State represented to the circuit court that burglary was

a crime of violence. With regard to the instant matter

, the State stated that petitioner “ appears to be a career criminal on parole for burglary, committing burglary wherein a tire iron was found inside the house. Thankfully, [the victim] wasn’t home, so there wasn’t any violence. But, there was a propensity for violence to be had that day.” In response, petitioner’s counsel acknowledged “there is an assumption of burglary being a crime of violence” but that it is “violence against property.”

4 During the hearing

, the circuit court found that while West Virginia Code § 61

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- 18(c) did not require violence

– just two prior felony convictions

– “there’s a risk of people being in

their hom es when their home is burglarized. That is why, I think, the Supreme Court has

determined that it could be a crime of violence.”3 Petitioner admitted he was the same individual charged in the State’s recidivist information but challenged the proportionality of a life sentence. The circuit court found the sentence appropriate under then

- existing law, but five months later this

Court c hanged the law in State v. Hoyle [

, 242 W. Va. 599, 836 S.E.2d 817 (2019)

,

c ert. denied

, 140 S. Ct

. 2586 (2020) ]

. Should the Court remand [ p ] etitioner’s case for the circuit court to apply the new standard?

In Hoyle , this Court set forth the following:

“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.” Syllabus Point 4, Wanstreet v. Bordenkircher

, 166 W. Va. 523, 276

S.E.2d 205 (19 81)

.

“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 recidiv ist 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 c arried the more serious penalties and therefore justify application of the statute.” Syllabus Point 7, State v. Beck

, 167 W. Va. 830, 286

S.E.2d 234 (1981)

.

For purposes of a life recidivist conviction under West Vi rginia Code § 61

- 11

- 18(c) , two of the three felony convictions considered must have involved either (1) actual violence, (2) a threat of violence, or (3) substantial impact upon the victim such that harm results. If this threshold is not met, a life recidi vist conviction is an unconstitutionally disproportionate punishment under Article III, Section 5 of the

West Virginia Constitution

.

Syl. Pts. 10, 11, and 12, State v. Hoyle , 242 W. Va. at 603 , 836 S.E.2d at 821.

Petitioner argues that this Court’s holdings in Hoyle constitute new rules of criminal procedure that are applicable because his case was not yet final at the time the Hoyle opinion was issued. According to petitioner, “[a] conviction and sentence becomes final for purposes of retroactivity analysis when the availability of direct appeal to this Court is exhausted or the time period for such expires.” State v. Blake , 197 W. Va. 700, 711, 478 S.E.2d 550, 561 (1996). Here, petitioner preserved the proportionality challenge and was sentenced on June 24, 2019. He also timely appealed to this Court. Petitioner argues that “[t]he Court then created a new standard for

evalu ating proportionality in Hoyle in November, 2019

– before deciding [p]etitioner’s appeal.” Therefore, he contends that his case was not final when the Court adopted a new standard for evaluating a preserved error, and petitioner should have the benefit of it on appeal. In addition, he asserts that because he could benefit from the new rule, this Court should remand his case to the4 circuit court so it can reconsider the facts of this case under the standard set forth in Hoyle

. Petitioner asserts that this “c ase requires remand because the circuit court, in reliance on the old rule, did not conduct the factual analysis necessary for this Court to apply the new one.” Petitioner argues that t he prior standard set forth in syllabus point 7 of State v. Beck , 167 W . Va. 830, 286 S.E.2d 234 (1981 ), asked whether the offenses showed a propensity for violence. However, he contends that words like offense, crime, and felony are ambiguous, as they may “refer to a kind of crime, a generic crime, as set forth in a statute . . ., or . . . to the way in which an individual offender acted on a particular occasion[.]” U.S. v. Stitt , 139 S.Ct. 399, 405 (2018). He, therefore, asserts

that courts under the old standard relied upon the facts, inherent qualities, or elements to reac h conflicting results. However, Hoyle solves this issue by referring to “convictions.” Without setting forth any real analysis, petitioner argues that the Court’s “example in Hoyle , to illustrate the new

standard also makes this fact

- based approach clear. ”

At the outset, we note that recidivist statutes are designed “to deter felony offenders, meaning persons who have been convicted and sentenced previously on a penitentiary offense from committing subsequent felony offenses.” Syl. Pt. 3, in part, State ex rel. Appleby v. Recht

, 213 W. Va. 503, 583 S.E.2d 800 (2002) (citation omitted). Petitioner does not dispute that he was

convicted of burglary

, grand larceny, destruction of property, and breaking and entering in the

instant matter

. Further, he does not dispute that he was previously convicted of daytime burglary

, receiving stolen property , and a ttempt to commit grand larceny

. West Virginia Code § 61

- 11

- 18( d ) provides for the imposition of a life sentence “[w]hen it is determined

. . . that such person shall have been twice before convicted in the United States of a crime punishable by confinement

in a penitentiary

. . . .” Id. ; accord Hoyle

, 242 W. Va. at 614, 836 S.E.2d at 832

. As set forth in Hoyle , “[f] or purposes of a life recidivist conviction under West Virginia Code § 61

- 11

- 18(c) , two of the three felony convict ions considered must have involved either (1) actual violence, (2) a threat of violence, or (3) substantial impact upon the victim such that harm results. ” Syl. Pt. 12, in

part, Hoyle at 603, 836 S.E.2d at 821.

Petitioner was sentenced by order entered on August 27, 2019, which was prior to this

Court’s issuance of Hoyle

. However, even if the circuit court had considered this Court’s decision

in Hoyle in imposing petitioner’s life recidivist sentence, it would ha ve reached the same

conclusion. As this Court has long held that “ burglary 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). In Housden , the Court was clear that the imposition of a life recidivist sentence for burglary and grand larceny does “ not violate the proportionality

doctrine nor [does] it constitute cruel and unusual punishment as prohibited by the West Virgini a Constitution and the United States Constitution. ” 184 W. Va. at 175, 399 S.E.2d at 886. As established below in the instant case, a tire iron with petitioner’s DNA was found inside the victim’s residence, which supports the assumption of the threat of vi olence . Even though the victim was not at home at the time petitioner entered it, the victi m could have returned at any time. Petitioner’s prior convictions include daytime burglary ; as set forth above, we have found that burglary involves the threat of ha rm or violence

. 5 For these reasons, we find that the circuit court

5 While petitioner argues that his case should be remanded for the circuit court to consider

whether actual violence occurred in the commission of the crimes for which he was convicted, (Continued . . .)5 did not err in imposing a life reci d i v ist sentence based upon the threat of violence involved with both of petitioner’s burglary convictions.

Affirmed.

ISSUED: March 2, 2021

CONCURRED IN BY:

Chief Justice Evan H. Jenkins

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

NOT PARTICIPATING:

Justice William R. Wooton

Justice Armstead, concurring , and writing separately :

I concur in the Court’s affirmance of the circuit court’s sentencing order, but I write separately because our recidivist statute, West Virginia Code § 61

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- 18(c) (2000), is clear and should be applied as written. For many years, this Court has imposed a myriad of additional requirements that must be met before the recidivist statute may be applied. This Court has essentially “legislated” and imposed its own requirements, which have been applied in a varied and inconsistent manner. See State v. Lane, 241 W.Va. 532, 826 S.E.2d 657 (2019) (Armstead, J., dissenting). In fact, our Legislature has recently amended this statute to clarify its provisions. See W. Va. Code § 61

- 11

- 18(c) (2020).

essentially requiring a n additional trial or the presentation of additional evidence to determine whether violence resulted from each such crime, such an approach is unnecessary in this case.

S ubs equent to Hoyle , this Court addressed a life recidivist case

, which supports the application of

s yllabus p oint 12 of Hoyle as this Court does in the instant matter

. See State v. Plante , No. 19

- 0109, 2020 WL 6806375, at *7 (W. Va. Nov. 19, 2020) (memorandum decision) (“ Applying

the Hoyle test to the facts of this case, we conclude that petitioner ’ s recidivist life sentence must be upheld. The triggering felony of possession with intent to deliver heroin is a crime that

involves ‘ substantial impact upon the v ictim such that harm results. ’ Id. ; see State v

. Gaskins

, No.

18

- 0575, 2020 WL 3469894, at *4 (W. Va. June 25, 2020) (memorandum decision) (finding

‘ petitioner ’ s prior convictions of delivery of a controlled substance, specifically cocaine, has a substantial impact on the victim of the crime. ’ ). Furthe r, petitioner ’ s prior felony conviction of the federal felony offense of possession with intent to distribute cocaine base, like his triggering felony, involves ‘ substantial impact upon the victim such that harm

results. ’ Id. at 603, 836 S.E.2d at 821 , Syl. Pt. 12. ”).6 The sentencing in this matter fell under the 2000 version of this statute and the majority decision in this case bases its affirmation upon State v. Hoyle, 242 W.Va. 599, 836 S.E.2d 817 (2019). While I agree with the majority that the Petitioner’s sentence should be affirmed, I would reach the same conclusion by simply applying the statute as written.