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West Virginia Supremes: Previous Nonviolent Crimes, Life Sentence Unconstitutional

by Dale Chappell

The Supreme Court of Appeals of West Virginia held that a life sentence based on two prior driving on a revoked license felonies violated the West Virginia Constitution’s provision that “[p]enalties shall be proportioned to the character and degree of the offence.”

After Marc Kilmer was found guilty by a jury of unlawful assault, among other offenses, the State filed a recidivist information requesting a life sentence based on his two prior convictions for driving while license revoked for driving under the influence. Kilmer filed a motion in opposition, arguing that the sentence was in violation of the “proportionality clause” in Article III, Section 5 of the West Virginia Constitution. The sentencing court denied Kilmer’s motion and imposed the life sentence. He appealed, raising the same argument.

Under West Virginia Code § 16-11-18(c), a person“shall” be sentenced to life in prison if “twice before convicted in the United States of a crime punishable by confinement in a penitentiary.”

The Supreme Court explained that the “constitutionality of the recidivist statute is well-established,” but the Court has “historically adopted a rather strict and narrow construction” because of its harsh result. The Court also takes into account the purpose of the statute—“the imposition of increased confinement for the dangerous criminal who repeatedly commits serious crimes.” With this background in mind, the Court analyzed whether Kilmer’s life sentence is constitutional.

The Court recounted its test for whether a recidivist life sentence under the state’s constitutional proportionality clause is appropriate 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.” State v. Beck, 286 S.E.2d 234 (W.Va. 1981) (emphasis in original). 

The State argued that the recidivist life sentence was appropriate given the violent nature of the predicate conviction for which he was sentenced to life, i.e., unlawful assault, because it establishes that he is violent. However, the Court rejected the State’s position, citing its decision in State v. Miller, 400 S.E. 297 (W.Va. 1990). In Miller, the predicate conviction was for a crime of violence (unlawful assault), but the two prior convictions were not (breaking and entering and forgery). According to the Court, Miller establishes that even if the predicate conviction involves violence but neither of the prior convictions involve actual or threatened violence “imposing a recidivist life sentence violates proportionality.”    

Applying the foregoing principle to the present case, the Court concluded that Kilmer’s recidivist life sentence violated the proportionality clause of the West Virginia Constitution. Like the defendant in Miller, Kilmer’s predicate conviction was a crime of violence, but the two previous convictions were not. Thus, his life sentence, like in Miller, was unconstitutional.

The State attempted to distinguish Miller from the present case by arguing the previous convictions in that case occurred over a period of two decades; whereas, Kilmer was released from prison just months before assaulting his former girlfriend. The Court summarily rejected that argument. It stated 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 only relevant question is whether the previous convictions involved actual or threatened violence.

Accordingly, the Supreme Court reversed Kilmer’s life sentence and remanded the case for resentencing. See: State v. Kilmer, 808 S.E.2d 867 (W.Va. 2017).  

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Related legal case

State v. Kilmer



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