State of West Virginia v. Roger Dale Blackburn ( 2021 )

STATE OF WEST VIRGINIA FILED
SUPREME COURT OF APPEALS
March 2, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
State of West Virginia,
Plaintiff Below, Respondent
vs.) No. 19-0962 (Wayne County 18-F-263 and 19-F-066)
Roger Dale Blackburn,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Roger Dale Blackburn, by counsel Matthew D. Brummond, appeals the Circuit
Court of Wayne County’s September 26, 2019, 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 evidence 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 footage 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, 2020, petitioner 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.
1
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 grand 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
predicate 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
destruction 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 petitioner’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 appeals 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 appropriateness 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 § 61-11-18(c)
did not require violence – just two prior felony convictions – “there’s a risk of people being in
their homes when their home is burglarized. That is why, I think, the Supreme Court has
determined that it could be a crime of violence.”
2
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 changed the law in State v. Hoyle[, 242 W. Va. 599, 836 S.E.2d 817 (2019),
cert. 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 (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
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.
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
evaluating 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 the
3
circuit court so it can reconsider the facts of this case under the standard set forth in Hoyle.
Petitioner asserts that this “case 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 the 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 reach
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 attempt 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 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.” 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 have 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 Virginia
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 violence. Even though the victim
was not at home at the time petitioner entered it, the victim 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 harm 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 . . .)
4
did not err in imposing a life recidivist 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 § 61-11-18(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 an 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.
Subsequent to Hoyle, this Court addressed a life recidivist case, which supports the application of
syllabus point 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 victim 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.’). Further, 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.”).
5
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.
6