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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Johnnie Franklin Wills,

Petitioner Below, Petitioner

vs.) No. 20-0472 (Hampshire County 18-C-29)

Karen Pszczolkowski, Superintendent,

Northern Correctional Facility,

Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Johnnie Franklin Wills, by counsel Jeremy B. Cooper, appeals the Circuit Court 

of Hampshire County’s May 27, 2020, order denying petitioner’s petition for a writ of habeas 

corpus following his convictions for grand larceny and conspiracy to commit grand larceny, in 

addition to receiving an enhanced sentence under a recidivist information. Respondent Karen 

Pszczolkowski, Superintendent, Northern Correctional Center, by counsel Gordon L. Mowen II, 

filed a response to which petitioner submitted a reply.

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.

In March of 2016, petitioner and another individual broke into a residence and stole 

property located therein. Petitioner was indicted in May of 2016 of the felony offense of burglary; 

the felony offense of conspiracy to commit burglary; the felony offense of grand larceny; the 

felony offense of conspiracy to commit grand larceny; and the misdemeanor offense of destruction 

of property. Following a jury trial on August 24 and 25, 2016, petitioner was found guilty of the 

felony offenses of grand larceny and conspiracy to commit grand larceny. However, he was 

acquitted of burglary, conspiracy to commit burglary, and destruction of property. On August 26, 

2016, the State filed a recidivist information against petitioner, and on October 21, 2016, petitioner 

admitted that he was the same person charged in the recidivist information and that he had 

previously been convicted of two qualifying offenses. On November 10, 2016, petitioner was 

sentenced to life imprisonment with parole eligibility for the felony offense of grand larceny and 

not less than one nor more than five years for the felony offense of conspiracy to commit grand 

larceny, with the sentences to run concurrently to one another. Petitioner appealed his sentences 

to this Court, and this Court affirmed in a memorandum decision. State v. Wills, No. 16-1199, 2017 

FILED

July 19, 2021

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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WL 5632127 (W. Va. Nov. 22, 2017) (memorandum decision) (“Wills I”). 

Acting as a self-represented litigant, petitioner filed a petition for a writ of habeas corpus 

on June 1, 2018. The circuit court appointed Jason T. Gain to represent petitioner and file an 

amended petition; following several extensions, the amended petition was filed on January 14, 

2019. On August 22, 2019, the circuit court held an omnibus evidentiary hearing, during which 

petitioner appeared via video conference without objection to that appearance. The court reviewed 

the checklist of grounds for post-conviction habeas corpus relief with petitioner, and an amended 

Losh list was filed on August 22, 2019, which included additional claims.1 The court reviewed 

petitioner’s constitutional rights regarding the amended Losh list, and evidence was presented. In 

addition, the parties stipulated that the records in Hampshire County Case No. 16-F-57 and this 

Court’s memorandum decision be made a part of the record in the instant matter. During the 

omnibus hearing, petitioner’s trial counsel offered testimony. 

On September 27, 2019, the circuit court granted petitioner’s motion for leave to file a 

second amended petition; on that date, it also continued the final omnibus hearing. During the 

second omnibus hearing on November 7, 2019, petitioner appeared and provided testimony in 

support of his habeas petition. During that hearing, a transcript of the closing arguments from the 

underlying criminal trial was admitted. The parties were asked to submit proposed findings of fact 

and conclusions of law for the circuit court’s consideration. Before issuing its May 27, 2020, order 

denying petitioner’s habeas petition, the circuit court also “review[ed] and fully consider[ed] the 

records contained in Hampshire County Circuit Court Case No.: 16-F-57; [Wills I]; and exhibits

that were admitted into the evidentiary record on August 22, 2019[,] and November 7, 2019.” 

In its thirty-one-page order denying petitioner’s request for habeas relief, the circuit court 

addressed each of the grounds petitioner asserted in his second amended petition for habeas corpus. 

However, as explained below, only one of those grounds is relevant to this Court’s review of the 

error alleged by petitioner—the constitutionality of the recidivist statute. In addressing that issue, 

the circuit court found that “to date[,] the recidivist statute remains in effect and constitutional in 

the State of West Virginia. Therefore, [p]etitioner is entitled to no relief upon this ground.” 

Petitioner appeals from the circuit court’s May 27, 2020, “Order Denying Habeas Corpus.”

This Court reviews a circuit court order denying a habeas petition under the following 

standard:

“In reviewing challenges to the findings and conclusions of the circuit court 

in a habeas corpus action, we apply a three-prong standard of review. We review 

the final order and the ultimate disposition under an abuse of discretion standard; 

the underlying factual findings under a clearly erroneous standard; and questions 

of law are subject to a de novo review.” Syl. Pt. 1, Mathena v. Haines, 219 W.Va.

417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, Anstey v. Ballard, 237 W. Va. 411, 787 S.E.2d 864 (2016).

1 Losh v. McKenzie, 166 W. Va. 762, 277 S.E.2d 606 (1981).
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On appeal, petitioner sets forth argument in support of only one assignment of error: The 

circuit court erred by denying relief on petitioner’s claim that the application of the West Virginia 

recidivist statute, under the facts of his case, is illegal based upon favorable changes in the law 

since his original sentencing.2 At the outset, petitioner admits that an assignment of error attacking 

his recidivist sentence would, under normal circumstances, be res judicata in the underlying habeas 

proceeding and in the context of this appeal because it was already ruled upon in petitioner’s direct 

appeal. However, he asserts that there is an exception in Syllabus Point 4 of 

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

litigation in the context of a “change in the law, favorable to the applicant, which may be applied 

retroactively.” Thus, he contends that this Court may properly consider the issue in the context of 

this appeal. Petitioner goes on to argue that the recidivist statute in effect at the time of petitioner’s 

sentencing, as interpreted by this Court, is unconstitutionally void for vagueness so his life 

recidivist sentence is illegal under Sessions v. Dimaya, 138 S.Ct. 1204 (2018), which was issued 

after petitioner’s recidivist sentence was handed down and affirmed by this Court. Petitioner 

further asserts that his sentence is disproportionate in violation of Article III, Section 5 of the West 

Virginia Constitution and the Eighth Amendment of the United States Constitution.

Petitioner admits that in State v. Mauller, No. 19-0829, 2020 WL 4355079 (W. Va. July 

30, 2020) (memorandum decision), this Court considered and rejected an appeal on similar 

grounds to the instant appeal; he contends, however, that the facts in Mauller, which specifically 

involved the underlying felonies, differ in key ways from the instant case. Petitioner asks that this 

Court “simply modify the [State v.] Hoyle[, 242 W. Va. 599, 836 S.E.2d 817 (2019), cert.

denied, 140 S. Ct. 2586 (2020),] test to pass federal constitutional muster, by requiring an 

‘elements’ test for violent offenses rather than a ‘residual clause.’”

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 (1981).

“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 

2 Petitioner also alleged that the circuit court erred by denying relief on his other grounds 

for habeas relief. On October 2, 2020, petitioner’s counsel filed a “Motion to Permit Filing of a 

Pro Se Supplemental Brief” requesting that petitioner be permitted to file a separate brief 

addressing the second assignment of error as a self-represented litigant, pursuant to Rule 

10(c)(10)(b) of the West Virginia Rules of Appellate Procedure. This Court granted that motion 

by order entered on November 12, 2020. Pursuant to that order, petitioner’s brief on that issue was 

to be filed no later than December 4, 2020. Petitioner did not submit a brief addressing that issue. 

Therefore, pursuant to Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure, we decline

to address the unargued assignment of error.
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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 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 Virginia 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 recidivist conviction is an 

unconstitutionally disproportionate punishment under Article III, Section 5 of the

West Virginia Constitution.

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

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 

multiple charges of driving under the influence (“DUI”), third offense; multiple charges of driving 

revoked for DUI, third offense; DUI, second offense; domestic battery; escaping while in custody; 

grand larceny; conspiracy to commit grand larceny; and being a felon in possession of a firearm.

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 indicated above, Hoyle requires that, “[f]or purposes of a life recidivist 

conviction under West Virginia 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.” Hoyle, 242 W. Va. at 603, 836 S.E.2d at 821, Syl. 

Pt. 12, in part.

This Court has long recognized that the proportionality principle embedded in the West 

Virginia Constitution prohibits the imposition of a life recidivist sentence where the defendant’s 

underlying conduct did not involve violence or the threat of violence. See generally Wanstreet, 

166 W. Va. at 537, 276 S.E.2d at 214. This analysis is precisely what this Court undertook when 

it evaluated petitioner’s claim on direct appeal in Wills I. 

We disagree with petitioner’s contention that his sentence is unconstitutional under 

Dimaya. As we recently found in State v. Plante, No. 19-0109, 2020 WL 6806375, at *5, n.11 (W. 

Va. Nov. 19, 2020) (memorandum decision),

[w]e find this argument unavailing for two significant reasons. First, we have 

already determined that the language of our recidivist statute, West Virginia Code

§ 61-11-18, is plain and unambiguous. See State ex rel. Appleby v. Recht, 213 W.

Va. 503, 519, 583 S.E.2d 800, 816 (2002)(quoting State ex rel. Chadwell v. Duncil,
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196 W.Va. 643, 647, 474 S.E.2d 573, 577 (1996))(providing “[w]e have previously 

recognized that West Virginia Code § 61-11-18 is ‘plain and unambiguous. . . .’”). 

Second, neither Johnson nor Sessions, the Supreme Court decisions relied upon by 

petitioner, involve a recidivist statute, and the principles of statutory construction 

contained in those cases are inapplicable to resolve the issue presented herein: 

whether, under the facts and circumstances of this case, the imposition of a life 

sentence under our recidivist statute is constitutionally disproportionate.

Plante, 2020 WL 6806375, at *5. 

For the reasons set forth in our prior holdings, there is no need to modify our recent holding 

in Hoyle. Therefore, we find that the circuit court did not err in denying petitioner’s petition for 

habeas corpus relief related to the imposition of the recidivist statute or petitioner’s sentence under 

that statute.

Affirmed.

ISSUED: July 19, 2021

CONCURRED IN BY:

Chief Justice Evan H. Jenkins

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton