672 S.E.2d 137
JUSTICE ALBRIGHT not participating.
SENIOR STATUS JUSTICE MCHUGH sitting by temporary assignment.
2. “In considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches. Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question. Courts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond reasonable doubt.” Syllabus Point 1, State ex rel. Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965).
3. “The provisions of the Constitution of the State of West Virginia may, in certain instances, require higher standards of protection than afforded by the Federal Constitution.” Syllabus Point 2, Pauley v. Kelly, 162 W.Va. 672, 255 S.E.2d 859 (1979).
4. West Virginia Code § 60A-4-408 (1971), which permits sentencing enhancement for certain repeat drug offenders based solely on the fact of a previous drug conviction, does not violate the due process protections found in Article III, § 10 of the West Virginia Constitution.
Maynard, Chief Justice: (See footnote 1)
The appellant and defendant below, Earl Monty Rutherford, appeals his
sentence for delivery of crack cocaine which was enhanced pursuant to W.Va. Code § 60A-
4-408 (1971), on the basis that the appellant has a prior drug conviction. The appellant
argues that although W.Va. Code § 60A-4-408 meets federal constitutional standards, the
statute denies him due process under the West Virginia Constitution. After careful
consideration of the issue before us, we affirm the ruling of the circuit court.
In considering the constitutionality of a legislative enactment, courts
must exercise due restraint, in recognition of the principle of the separation of
powers in government among the judicial, legislative and executive branches.
Every reasonable construction must be resorted to by the courts in order to
sustain constitutionality, and any reasonable doubt must be resolved in favor
of the constitutionality of the legislative enactment in question. Courts are not
concerned with questions relating to legislative policy. The general powers of
the legislature, within constitutional limits, are almost plenary. In considering
the constitutionality of an act of the legislature, the negation of legislative
power must appear beyond reasonable doubt.
Syllabus Point 1, State ex rel. Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d
351 (1965). With these standards in mind, we now proceed to address the issue before us.
(a) Any person convicted of a second or subsequent offense under this chapter may be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized, or both. When a term of imprisonment is doubled under section 406 [§ 60A-4-406], such term of imprisonment shall not be further increased for such offense under this subsection (a), even though such term of imprisonment is for a second or subsequent offense.
(b) For purposes of this section, an offense is considered a second or subsequent offense, if, prior to his conviction of the offense, the offender has at any time been convicted under this chapter or under any statute of the United States or of any state relating to narcotic drugs, marihuana, depressant, stimulant, or hallucinogenic drugs.
(c) This section does not apply to offenses under section 401 (c) [§
60A-4-401]. (See footnote 4) (Footnote added.).
The appellant claims that the application of W.Va. Code § 60A-4-408 to his
sentence deprived him of his due process rights under the state constitution. According to
the appellant, the statute violates due process principles because it does not contain any
requirement that a criminal defendant receive any notice that he or she may be subject to its
enhancement provisions or that the qualifying prior drug conviction may be included in the
indictment or by separate information; it does not contain any provision for a jury or bench
hearing where the defendant can contest the existence of a prior drug conviction; and no
particular evidentiary standard is specified for the finding of a prior conviction.
At the outset, we note that the appellant does not contest the fact that W.Va.
Code § 60A-4-408 meets federal constitutional due process standards. This was made clear
by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi involved a defendant who pled guilty to the New Jersey crime of second-degree
possession of a firearm for an unlawful purpose, which carried a prison term of 5 to 10 years.
Subsequent to the defendant's plea, the prosecutor moved to enhance the sentence pursuant
to a state hate crime statute that permitted a defendant's sentence to be enhanced if the court
found, by a preponderance of the evidence, that “'[t]he defendant in committing the crime
acted with a purpose to intimidate an individual or group of individuals because of race,
color, gender, handicap, religion, sexual orientation or ethnicity.'” Apprendi, 530 U.S. at
468-69, quoting N.J. Stat. Ann. § 2C:44-3(e) (West Supp. 1999-2000). The trial court found
that the shooting was racially motivated and sentenced the defendant to a 12-year term, which
was two years more than the maximum sentence provided in the statute under which the
defendant was convicted.
The defendant appealed arguing that the federal due process clause requires the
jury, not the trial judge, to find beyond a reasonable doubt the bias upon which his hate crime
sentence was based. A New Jersey appellate court upheld the increased sentence reasoning
that the hate crime enhancement was a sentencing factor and not an essential element of the
underlying offense. The New Jersey Supreme Court subsequently affirmed the appellate
court decision. The court reasoned that the statute was constitutional because it did not allow
“impermissible burden shifting, and did not create a separate offense calling for a separate
penalty.” Apprendi, 530 U.S. at 473 (internal quotation marks and citation omitted). The
court further explained that the statute was a result of the legislature giving weight to a factor
that sentencing courts have used to affect punishment.
The United States Supreme Court reversed the decision of the New Jersey
Supreme Court. The Supreme Court based its reversal on the rule, “[that] it is
unconstitutional for a legislature to remove from the jury the assessment of facts that increase
the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear
that such facts must be established by proof beyond a reasonable doubt.” Apprendi, 530 U.S.
at 490 (citations omitted). Significantly, however, the Supreme Court clearly indicated that
this rule does not apply to the fact of a prior conviction. The Supreme Court indicated that
the basis for such an exception is the certainty that procedural safeguards attached to the fact
of a prior conviction. “[T]here is a vast difference between accepting the validity of a prior
judgment of conviction entered in a proceeding in which the defendant had the right to a jury
trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and
allowing the judge to find the required fact under a lesser standard of proof.” Apprendi, 530
U.S. at 496. Thus, the Supreme Court concluded that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490 (emphasis added). In the instant case, W.Va. Code § 60A-4-408 requires
only the finding of the fact of a prior conviction in order to enhance a defendant's sentence.
Accordingly, under Apprendi, it meets federal constitutional due process standards.
This Court has recognized, however, that “[t]he provisions of the Constitution
of the State of West Virginia may, in certain instances, require higher standards of protection
than afforded by the Federal Constitution.” Syllabus Point 2, Pauley v. Kelly, 162 W.Va.
672, 255 S.E.2d 859 (1979). The appellant relies on this rule in arguing that W.Va. Code §
60A-4-408 violates state constitutional due process standards. The appellant first asserts that
this Court's jurisprudence has not made the distinction between a prior conviction and an
element of the crime. According to the appellant, the West Virginia Code has numerous
offenses in which prior convictions are interpreted as elements. In support of this
proposition, the appellant cites State v. Cozart, 177 W.Va. 400, 402 n. 1, 352 S.E.2d 152,
153-154 n. 1 (1986) (commenting that “where a prior conviction is a necessary element of
the current offense charged or is utilized to enhance the penalty after a jury finding that the
defendant has committed such prior offense, it is admissible for jury purposes”). The
appellant further cites State v. Hopkins, 192 W.Va. 483, 453 S.E.2d 317 (1994) (finding that
evidence of defendant's prior shoplifting conviction was admissible as necessary element of
shoplifting, third offense). We find no merit to the appellant's argument. The appellant was
not convicted of an offense of which a prior conviction is an element. Rather, he was
convicted of distributing crack cocaine, a crime of which a prior drug-related conviction is
not an element. Significantly, the fact of the prior drug conviction alone permits sentence
enhancement.
Next, the appellant argues that W.Va. Code § 60A-4-408 is a narrower version
of the general recidivist statute, W.Va. Code § 61-11-18 (2000), which, unlike W.Va. Code
§ 60A-4-408, contains procedural safeguards prior to the enhancement of a defendant's
sentence based on prior criminal conduct. With regard to W.Va. Code § 61-11-18, this Court
explained in State ex rel. Appleby v. Recht, 213 W.Va. 503, 511, 583 S.E.2d 800, 808 (2002),
that,
the separate nature of the recidivist proceeding requires the State to satisfy a
number of requirements, such as: (1) filing a written information, Syl. pt. 1, State ex rel. Cox v. Boles, 146 W.Va. 392, 120 S.E.2d 707 (1961); (2) proving
“beyond a reasonable doubt that each penitentiary offense, including the
principal penitentiary offense, was committed subsequent to each preceding
conviction and sentence[,]” Syl., State v. McMannis, 161 W.Va. 437, 242
S.E.2d 571 (1978); and (3) proving beyond a reasonable doubt to the jury the
identity of the defendant. W.Va. Code § 61-11-19; Syl. pt. 4, State v. Vance, 164 W.Va. 216, 262 S.E.2d 423 (1980).
The appellant concludes that a defendant whose sentence is enhanced under W.Va. Code §
60A-4-408 should have the same procedural safeguards as those required under W.Va. Code
§ 61-11-18. Again, we disagree.
In State ex rel. Daye v. McBride, 222 W.Va. 17, 658 S.E.2d 547 (2007), this
Court recognized several important distinctions between W.Va. Code § 60A-4-408 and
W.Va. Code § 61-11-18.
The Uniform Controlled Substances Act, W.Va. Code, 60A-4-408
(1971), provides a lesser, and discretionary, enhancement in any case involving
a repeat drug offender. Furthermore, the judge, not the prosecuting attorney,
makes the enhanced sentencing decision under this drug offense statute. The
statute applies to both misdemeanor and felony offenses. It does not require
the filing of an information by the prosecuting attorney.
In contrast, the general habitual offender statute is utilized only in cases
where the totality of a criminal defendant's criminal history makes a
mandatory sentence of life imprisonment an appropriate punishment. The
procedural provisions of the general habitual criminal offender statute, W.Va.
Code, 61-11-19 (1943), require the filing of an information by the prosecuting
attorney within certain time limits, and the defendant has a right to a jury trial
with attendant procedural safeguards.
Daye, 222 W.Va. at _ , 658 S.E.2d at 553. In light of the significant differences between
W.Va. Code § 60A-4-408 and W.Va. Code § 60-11-18, this Court is not persuaded that
because W.Va. Code § 60-11-18 contains procedural safeguards not included by the
Legislature in W.Va. Code § 60A-4-408, that these procedural safeguards should be
considered constitutional imperatives applicable to all instances of sentence enhancement.
Finally, the appellant implies that a comparison of W.Va. Code § 60A-4-408
with W.Va. Code § 60A-4-406 (2000) is significant to our legal analysis. West Virginia
Code § 60A-4-406 permits sentence enhancement based not only on prior convictions but
also on the age of the defendant, the age of the person to whom the defendant distributed the
controlled substance, and the proximity of the drug crime to a school, college, or university.
Under W.Va. Code § 60A-4-406, the existence of a fact which would permit enhancement
requires that the fact is included in the indictment and found by the court upon a plea of
guilty or nolo contendere; found by the jury upon submission to the jury of a special
interrogatory for such purpose; or found by the court if the matter be tried by the court
without a jury. We believe that these two statutes, while failing to provide support for the
appellant's argument, are consistent with the rule stated in Apprendi. West Virginia Code
§ 60A-4-406 mandates additional procedures prior to sentence enhancement because that
statute requires findings of additional facts beyond the simple fact of a prior conviction.
West Virginia Code § 60A-4-408, on the other hand, requires only the fact of a prior
conviction prior to enhancement, and thus does not mandate additional procedural
safeguards. Accordingly, this Court is not persuaded by the appellant's arguments that
W.Va. Code § 60A-4-408 does not meet state constitutional due process requirements.
To summarize, the Supreme Court held in Apprendi that federal constitutional
due process rights do not require the government to submit to a jury and prove beyond a
reasonable doubt the fact of a prior conviction which may increase the penalty for a crime
beyond the prescribed statutory maximum. While the provisions of our state constitution may
require higher standards of protection than those afforded by the federal constitution, we find
no compelling reason in our jurisprudence to depart from the Supreme Court's rule in Apprendi. Therefore, we hold that W.Va. Code § 60A-4-408 (1971), which permits
sentencing enhancement for certain repeat drug offenders based solely on the fact of a
previous drug conviction, does not violate the due process protections found in Article III,
§ 10 of the West Virginia Constitution. Having so held, we find no infirmity with the
enhancement of the appellant's sentence pursuant to W.Va. Code § 60A-4-408.
Affirmed.