Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 07-03-2021
Case Style:
State of West Virginia vs. Keith D.
Case Number: 18-0479
Judge: CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Court: STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
Plaintiff's Attorney: West Virginia appears by counsel Patrick Morissey and Caleb A. Ellis.
Defendant's Attorney:
Description:
Charleston, WV - Criminal defense attorney represented Keith D. with a possession of a firearm by a prohibited person charge.
Petitioner was tried by a jury and convicted of one count of possession of a firearm by a
prohibited person (W. Va. § 61-7-7(b)(1)) in the Circuit Court of Summers County in 2018 (after
being retried as directed by the circuit court’s granting of a petition for habeas corpus) for an event
occurring six years earlier, when police officers responded to a report of child abuse in petitioner’s
home and discovered that petitioner had possession of a .22 rifle. Petitioner was subsequently
adjudged guilty in a recidivist trial based on his prior convictions of grand larceny and voluntary
manslaughter, and he was sentenced to imprisonment for a term of life.
On appeal, petitioner asserts six assignments of error with respect to his conviction and
sentence. He argues that 1) the circuit court erred in denying his motion for a new recidivist trial,
based on his assertion that the circuit court informed the jury of his prior convictions during his
recidivist trial; 2) the circuit court erred in denying his motion for judgment of acquittal during his
recidivist trial because the State failed to prove that he was convicted of prior felonies; 3) his
sentence is constitutionally disproportionate; 4) the circuit court erred in denying his motion for a
new trial on the underlying penitentiary offense after a juror failed to disclose that he knew
FILED
June 23, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA2
petitioner’s family; 5) his conviction places him in double jeopardy because he already served a
term of imprisonment for his conviction of being a prohibited person in possession of a firearm;
and 6) the circuit court erred in refusing to enforce a plea bargain.1
Two of petitioner’s assignments of error—the first and the fourth—concern the circuit
court’s denial of his motion for a new trial, filed more than a month after the jury rendered its
verdict.
“In reviewing challenges to findings and rulings made by a circuit court, we
apply a two-pronged deferential standard of review. We review the rulings of the
circuit court concerning a new trial and its conclusion as to the existence of
reversible error under an abuse of discretion standard, and we review the circuit
court’s underlying factual findings under a clearly erroneous standard. Questions
of law are subject to a de novo review.” Syl. Pt. 3, State v. Vance, 207 W.Va. 640,
535 S.E.2d 484 (2000).
Syl. Pt. 1, State v. Jenner, 236 W. Va. 406, 780 S.E.2d 762 (2015).
We agree with the State that petitioner’s motion for a new trial was untimely because, in
this instance, Rule 33 of the West Virginia Rules of Criminal Procedure required that petitioner
file his motion for a new trial within ten days after the jury’s finding of guilt. We further note that
petitioner has offered no citation to the record on appeal to demonstrate that the issues on which
his motion for a new trial were based were raised with the trial court. Rule 10(c)(7) of the West
Virginia Rules of Appellate Procedure requires that the argument section of the petitioner’s brief
“contain appropriate and specific citations to the record on appeal, including citations that pinpoint
when and how the issues in the assignments of error were presented to the lower tribunal.”
Moreover, petitioner has not asserted how he believes he was prejudiced by the jurors’ failure to
acknowledge any relationship or otherwise offer evidence demonstrating prejudice. These several
omissions render these assignments of error unsuitable for appellate review.
Petitioner’s second assignment of error challenges the circuit court’s denial of the motion
for a judgment of acquittal he made during his recidivist proceedings. Petitioner based his motion
on his contention that the State failed to prove that he was previously convicted of grand larceny.
The Court applies a de novo standard of review to the denial of a motion for judgment of acquittal
based upon the sufficiency of the evidence. State v. LaRock, 196 W. Va. 294, 304, 470 S.E.2d 613,
623 (1996). We are satisfied with the circuit court’s explanation in denying petitioner’s motion
that the State offered self-authenticating records establishing the grand larceny conviction and,
accordingly, find no error.
In his third assignment of error, petitioner argues that his recidivist sentence of
imprisonment for a term of life violates the proportionality principle of the West Virginia
1 The first four assignments of error were presented by petitioner’s counsel, who has since
withdrawn his representation. The final two were presented in petitioner’s supplemental pro se
filing.3
Constitution2 inasmuch as his penitentiary offense (being a prohibited person in possession of a
firearm) and one of his predicate offenses (grand larceny) are not “crimes of violence” that trigger
application of the recidivist statute. We have explained:
“The appropriateness of a life recidivist sentence under our constitutional
proportionality provision found in Article III, Section 5 [of the West Virginia
Constitution], 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 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.” Syllabus Point
7, State v. Beck, 167 W.Va. 830, 286 S.E.2d 234 (1981).
Syl. Pt. 8, State v. Norwood, 242 W. Va. 149, 832 S.E.2d 75 (2019), cert. denied sub nom. Norwood
v. West Virginia, -- U.S. --, 140 S. Ct. 1297, 206 L. Ed. 2d 376 (2020). In Norwood, we explained
that the inherent threat of violence in certain offenses is sufficient to justify application of the
recidivist statute. Id. at 158, 832 S.E.2d at 84. We have since found that possession of a firearm
by a prohibited person carries the inherent threat of violence. See State v. Gaskins, No. 18-0575,
2020 WL 3469894 (W. Va. June 25, 2020) (memorandum decision), cert. denied sub nom. Gaskins
v. West Virginia, No. 20-7505, 2021 WL 1602710 (U.S. Apr. 26, 2021). Similarly, we have upheld
a recidivist conviction after considering the inherent threat of violence in grand larceny. See State
v. Blackburn, No. 19-0962, 2021 WL 1232088 (W. Va. Mar. 2, 2021) (memorandum decision).
We find, therefore, that the offenses of being a prohibited person in possession of a firearm and
grand larceny are both crimes of violence that trigger application of the recidivist statute.
Accordingly, petitioner’s sentence does not violate the proportionality principle.
Petitioner’s fifth assignment of error argues that he is subject to double jeopardy because
the circuit court sentenced him to serve a penitentiary sentence that he previously discharged, and
his sixth assignment of error asserts that the circuit court erred in refusing to enforce a plea
agreement he entered into with the State. Petitioner has failed to demonstrate “when and how the
issues in the assignments of error were presented to the lower tribunal” as required by Rule 10(c)(7)
of the West Virginia Rules of Appellate Procedure, and has further failed to meaningfully explain
the factual basis for these claims. We, therefore, will not undertake a review of the same.
Outcome: For the foregoing reasons, we affirm.
Plaintiff's Experts:
Defendant's Experts:
Comments: