State of West Virginia v. Carlos A. Tilley ( 2018 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia,
Plaintiff Below, Respondent FILED
June 15, 2018
vs) No. 17-0155 (Marion County CC-24-2015-F-143) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Carlos A. Tilley,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Carlos A. Tilley, by counsel Jason E. Wingfield, appeals the order of the
Circuit Court of Marion County, entered on January 23, 2017, sentencing him to a term of life
imprisonment in the state penitentiary, with the possibility of parole, upon his conviction of
delivery of a controlled substance within one-thousand feet of a school, and to a concurrent term
of one to five years of imprisonment in the state penitentiary upon his conviction of conspiracy
to commit a felony. Petitioner’s life sentence resulted from application of the recidivist
enhancement statute, West Virginia Code § 61-11-18. Respondent State of West Virginia
appears by counsel Sarah B. Massey.
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 affirming the order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.
I.
In July of 2015, a confidential informant for the Fairmont Police Department told a drug
task force officer that she could purchase crack cocaine from Nathaniel Williams at his
residence, which was within one-thousand feet of West Fairmont Middle School. Police obtained
an order for electronic interception from a magistrate judge pursuant to West Virginia Code §
62-1F-4 to allow recording equipment to be placed on the informant, and arranged a controlled
buy on the same date. The confidential informant telephoned Mr. Williams, but Mr. Williams did
not answer that call. Police then searched the informant, equipped her with video recording
equipment, and sent her into Mr. Williams’s apartment with fifty dollars. Mr. Williams was not
there, but six other individuals, including Kishon Yeagins and petitioner, were present. The
informant asked if anyone in the apartment could provide her fifty dollars’ worth of crack
cocaine. One individual, later identified by the informant as petitioner, took the informant’s cash,
left the room, and returned with two small, blue bags of crack cocaine, which he handed to her.
Based on those events (“the controlled buy” or “the controlled purchase”), officers obtained a
1
search warrant for the apartment and performed a search, but petitioner was not at the residence.
Later, officers stopped Mr. Yeagins and petitioner in a car, wherein they found 27 small, blue
bags of crack cocaine on Mr. Yeagins.1 Both men were arrested. Officers later located a hotel
where Mr. Yeagins and petitioner rented a room, and determined that cash from the controlled
buy was used to pay for the room.
Petitioner was indicted on one count of delivery of a controlled substance within one-
thousand feet of a school and one count of conspiracy to commit a felony. Petitioner filed a
motion to suppress the recording obtained from the informant on the ground that the video was
not time-stamped, and it was thus not clear that the electronic interception warrant was obtained
prior to the informant’s entry into the home. Petitioner also argued that Mr. Williams, the tenant
of the target residence, was not home when the informant entered, and therefore did not give his
consent for entry. Petitioner later filed a second motion to suppress, seeking the exclusion of the
evidence obtained in the execution of the search warrant. The circuit court conducted a hearing at
which Det. Lt. Douglas Yost of the Fairmont Police Department testified that it is standard
practice to obtain an electronic interception warrant prior to engaging a controlled buy, and he
believed standard protocol was followed in this situation. The circuit court denied the motions to
suppress.
The circuit court conducted a jury trial in March of 2016. In addition to the testimony
establishing the circumstances surrounding the controlled buy as described above, the State
offered the testimony of Mr. Williams, at whose residence the buy occurred. Mr. Williams
testified that he is a drug addict who allowed his friend Terris Lee to bring individuals to his
home to sell crack cocaine, and that petitioner and Mr. Yeagins “appeared” at his home at Mr.
Lee’s behest up to a week before the controlled purchase.
Petitioner was convicted of both counts in the indictment. He filed a motion for judgment
of acquittal or, alternatively, for a new trial, on the grounds that the State never established that
petitioner was in possession of the crack cocaine and that the State failed to establish a
conspiracy. The motion was denied.
Following the trial, the State filed a recidivist information, alleging the defendant was the
same person who had been twice before convicted in the United States of crimes punishable by
confinement in a penitentiary, and the court conducted a trial on that issue. A probation officer
testified, relating petitioner’s lengthy criminal history. The State also introduced, over the
objection of petitioner, judgment orders from the United States District Court for the Eastern
District of Pennsylvania and from the First Judicial District Court of Pennsylvania certifying
petitioner’s prior criminal convictions. The jury found petitioner guilty of recidivism, and
petitioner was sentenced as described above.
II.
1
One investigating officer later testified that the size and color of the packaging was
unique.
2
On appeal, petitioner asserts five assignments of error. He argues that the circuit court
erred in: 1) denying his motion to suppress the recorded evidence of the controlled purchase
because the electronic interception warrant was insufficient; 2) allowing uncorroborated
testimony from his co-conspirator without giving a curative instruction; 3) allowing a probation
officer to testify about statements made by petitioner, thereby violating petitioner’s Fifth
Amendment rights; 4) admitting the judgment orders in support of petitioner’s recidivist
conviction; and 5) sentencing petitioner using the recidivist enhancement without requiring the
State to prove that the predicate offenses were punishable by confinement in a penitentiary.
Petitioner’s assignments of error concern the circuit court’s evidentiary rulings. Thus, unless
stated otherwise below, we review pursuant to the following standard: “The action of a trial court
in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the
appellate court unless it appears that such action amounts to an abuse of discretion.” Syllabus
point 10, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds by
State ex rel. R.L. v. Bedell, 192 W.Va. 435, 452 S.E.2d 893 (1994).
III.
A.
We first are called upon to determine the validity of the warrant that led to the recorded
evidence used at trial and the court’s subsequent denial of petitioner’s motions to suppress the
evidence derived therefrom. “‘[A] circuit court’s denial of a motion to suppress evidence will be
affirmed unless it is unsupported by substantial evidence, based on an erroneous interpretation of
the law, or, based on the entire record, it is clear that a mistake has been made.’ Syl. Pt. 2, State
v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996).” Syl. Pt. 2, in part, State v. Kimble, 233 W.Va.
428, 759 S.E.2d 171 (2014). In Lacy, we elucidated:
When reviewing a ruling on a motion to suppress, an appellate court should
construe all facts in the light most favorable to the State, as it was the prevailing
party below. Because of the highly fact-specific nature of a motion to suppress,
particular deference is given to the findings of the circuit court because it had the
opportunity to observe the witnesses and to hear testimony on the issues.
Therefore, the circuit court’s factual findings are reviewed for clear error. State v.
Lilly, 194 W.Va. 595, 461 S.E.2d 101 (1995). In contrast to a review of the circuit
court’s factual findings, the ultimate determination as to whether a search or
seizure was reasonable under the Fourth Amendment to the United States
Constitution and Section 6 of Article III of the West Virginia Constitution is a
question of law that is reviewed de novo. State v. Stuart, 192 W.Va. 428, 452
S.E.2d 886 (1994).
Lacy, 196 W.Va. at 109, 468 S.E.2d at 724.
Before proceeding to the substantive issue, we must address a jurisdictional concern. The
State argues that petitioner, a non-resident of the dwelling that was the subject of the search
3
warrant, had no expectation of privacy in Mr. Williams’s home, and thus has no standing to
challenge to the warrant.2 The State disputes that petitioner produced evidence that he lived or
slept at Mr. Williams’s home, and particularly notes that petitioner and Mr. Yeagins had already
rented a hotel room when arrested. Petitioner, on the other hand, argues that he was more than a
“casual visitor” in Mr. Williams’s apartment and hence is entitled to challenge the evidence
pursuant to syllabus point 1 of State v. Adkins, 176 W.Va. 613, 346 S.E.2d 762 (1986)(“A
defendant who is more than a casual visitor to an apartment or dwelling in which illegal drugs
have been seized has the right under the Fourth Amendment to the United States Constitution
and Article III, Section 6 of the West Virginia Constitution to challenge the search and seizure of
illegal drugs which he is accused of possessing.”) We clarified this principle in State v. Dorsey,
234 W.Va. 15, 24, 762 S.E.2d 584, 593 (2014), wherein we explained that continued presence
alone is insufficient to establish standing because, “a guest in a home must be welcomed by his
host at the time of the government intrusion in order to have a reasonable expectation of
privacy.” The State argues that Dorsey is particularly germane because Mr. Williams’s cocaine
dependence was tantamount to coercion by Mr. Lee, who supplied him with drugs, and Mr.
Lee’s associates, including petitioner, were therefore not “welcomed” in the Williams home.
The burden of establishing standing to raise a Fourth Amendment challenge rests with the
defendant. See United States v. Salvucci, 448 U.S. 83, 86–95, 100 S. Ct. 2547 (1980); Rakas v.
Illinois, 439 U.S. 128, 130 n. 1, 99 S. Ct. 421 (1978). Petitioner offered no evidence concerning
his stay at Mr. Williams’s residence, and the only evidence about that arrangement was offered
through the testimony of Mr. Williams. Importantly, Mr. Williams testified that he did not know
petitioner’s name at the time of the controlled buy, though either petitioner or Mr. Yeagins had
been “there” about a week prior to the arrest, and the other joined the former two or three days
later. Their appearance in his home was occasioned by Mr. Williams’s arrangement with Mr.
Lee, who periodically left people at Mr. Williams’s home for the sole purpose of selling
narcotics. Mr. Williams testified that Mr. Lee would “[j]ust give [him] a little coke for letting
them work out of [his] house.” There is no evidence in the appendix record on appeal that
petitioner was in Mr. Williams’s home for any reason other than his engagement in a nefarious
criminal enterprise. The arrangement described by Mr. Williams is quite similar to that described
in Minnesota v. Carter, 525 U.S. 83, 90, 119 S. Ct. 469, 473-74 (1998):
Respondents here were obviously not overnight guests, but were
essentially present for a business transaction and were only in the home a matter
of hours. There is no suggestion that they had a previous relationship with [their
host], or that there was any other purpose to their visit. Nor was there anything
similar to the overnight guest relationship in [Minnesota v.] Olson, [495 U.S. 91,
2
The State has not asserted that it challenged petitioner’s standing when this issue came
before the circuit court. This is inconsequential. “Standing is a jurisdictional requirement that
cannot be waived, and may be brought up at any time in a proceeding.” Men & Women Against
Discrimination v. Family Prot. Servs. Bd., 229 W.Va. 55, 60, 725 S.E.2d 756, 761 (2011)
quoting Franklin D. Cleckley, Robin J. Davis & Louis J. Palmer, Jr., Litigation Handbook on
West Virginia Rules of Civil Procedure § 12(b), at 21 (Supp.2004).
4
110 S. Ct. 1684 (1990)] to suggest a degree of acceptance into the household.
While the apartment was a dwelling place for [the host], it was for these
respondents simply a place to do business.
The precedent cited by Carter supposes an expectation of privacy where one lodges
overnight. Olson, 495 U.S. at 98-99, 110 S. Ct. 1684 (“To hold that an overnight guest has a
legitimate expectation of privacy in his host’s home merely recognizes the every day
expectations of privacy that we all share. Staying overnight in another’s home is a longstanding
social custom that serves functions recognized as valuable by society.”) It is unclear from the
testimony in this case whether petitioner at any point lodged overnight in Mr. Williams’s home
and, inasmuch as he bears the burden of proving his standing, we need not assume that he did.
Consequently, we need not consider whether his time in Mr. Lee’s dwelling was of
“longstanding social custom” that would inspire an expectation of privacy. The uncomplicated
evidence is that Mr. Lee brought petitioner—whose name remained unknown to his host for
nearly a week—to Mr. Williams’s home to sell narcotics, and no social rapport was ever
established between the two men. Accordingly, we find that petitioner had no expectation of
privacy when he was in Mr. Williams’s home for the same reasons explained in Carter: “[T]he
purely commercial nature of the transaction engaged in here, the relatively short period of time
on the premises, and the lack of any previous connection between [petitioner] and the
householder, all lead us to conclude that [petitioner’s] situation is closer to that of one simply
permitted on the premises.” Carter, 525 U.S. 83, 91, 119 S. Ct. 469, 474. Petitioner lacks
standing to challenge the search of Mr. Williams’s home, and we will proceed no further in
analyzing the probable cause, or lack thereof, underlying the warrant.
B.
Petitioner’s second assignment of error, verbatim, is that “[t]he . . . [c]ircuit [c]ourt erred
or abused its discretion in allowing uncorroborated testimony regarding a co-conspirator to be
communicated to the jury without curative instruction.” This assignment of error refers to Mr.
Williams, who allowed petitioner and Mr. Yeagins to stay in his home, where the recorded drug
transaction occurred. Without Mr. Williams’s testimony, petitioner argues, the evidence is
insufficient to support his conviction of conspiracy. Regarding this, we note that
[a] criminal defendant challenging the sufficiency of the evidence to support a
conviction takes on a heavy burden. An appellate court must review all the
evidence, whether direct or circumstantial, in the light most favorable to the
prosecution and must credit all inferences and credibility assessments that the jury
might have drawn in favor of the prosecution. The evidence need not be
inconsistent with every conclusion save that of guilt so long as the jury can find
guilt beyond a reasonable doubt. Credibility determinations are for a jury and not
an appellate court. Finally, a jury verdict should be set aside only when the record
contains no evidence, regardless of how it is weighed, from which the jury could
find guilt beyond a reasonable doubt. To the extent that our prior cases are
inconsistent, they are expressly overruled.
5
The function of an appellate court when reviewing the sufficiency of the evidence
to support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, is sufficient to convince a
reasonable person of the defendant’s guilt beyond a reasonable doubt. Thus, the
relevant inquiry is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential
elements of the crime proved beyond a reasonable doubt.
Syl. Pts. 3 and 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).
Petitioner has failed to direct this Court’s attention to the portion of the record where he
requested (if, indeed, he did) a curative instruction. Pursuant to Rule 10(c)(7) of the West
Virginia Rules of Appellate Procedure, the argument section of the petitioner’s brief “must
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. The Court may disregard errors that are not adequately supported by specific references
to the record on appeal.” Furthermore, petitioner has not asserted that the circuit court’s failure to
give a curative instruction in conjunction with Mr. Williams’s testimony was plain error. We
thus deem this issue waived.3
C.
3
As stated in the body of this decision, petitioner’s burden concerning sufficiency of the
evidence is heavy. We also recognize that “[a] criminal conviction can be obtained on the
uncorroborated testimony of an accomplice.” Syl. Pt. 1, State v. Vance, 164 W.Va. 216, 262
S.E.2d 423 (1980). In addition,
[w]here the testimony of an accomplice is corroborated in material facts which
tend to connect the accused with the crime, sufficient to warrant the jury in
crediting the truth of the accomplice’s testimony, it is not error to refuse a
cautionary instruction. This rule applies even though the corroborative evidence
falls short of constituting independent evidence which supports the alleged
ultimate fact that the accused committed the offense charged.
Syl. Pt. 3, Vance. We briefly note that the recorded evidence showed petitioner, in Mr.
Williams’s home, give crack cocaine to a confidential informant in exchange for cash, and the
evidence further showed that officers found drugs (packaged in the same unique manner as those
given by petitioner to the confidential informant) on Mr. Yeagins after a stop, and that petitioner
and Mr. Yeagins shared a hotel room paid for with the cash used by the confidential informant.
We have no reservations about the sufficiency of this evidence to establish criminal conspiracy.
“‘“In order for the State to prove a conspiracy under W.Va.Code, 61–10–31(1), it must show that
the defendant agreed with others to commit an offense against the State and that some overt act
was taken by a member of the conspiracy to effect the object of that conspiracy.” Syl. Pt. 4, State
v. Less, 170 W.Va. 259, 294 S.E.2d 62 (1981).’ Syl. Pt. 3, State v. Burd, 187 W.Va. 415, 419
S.E.2d 676 (1991).” Syl. Pt. 5, State v. Minigh, 224 W.Va. 112, 680 S.E.2d 127 (2009).
6
Petitioner’s third, fourth, and fifth assignments of error implicate the evidence underlying
his recidivist conviction pursuant to West Virginia Code § 61–11–18(c), which provides that
“[w]hen it is determined . . . that [a] person shall have been twice before convicted in the United
States of a crime punishable by confinement in a penitentiary, the person shall be sentenced to be
confined in the state correctional facility for life.”
Regarding the third matter on appeal, petitioner contends that the circuit court’s allowing
his probation officer to testify regarding petitioner’s interview statements—introduced for the
purpose of identifying him as a person previously convicted—constituted a violation of his
federal Fifth Amendment privilege against self-incrimination.4 Petitioner’s “chief complaint is
that the jury was exposed to testimony from [the probation officer] regarding [petitioner’s]
admissions of identity in a case where identity had not been proven.” Petitioner correctly
explains that certain elements of the probation officer’s presentence investigation report reflect
information about petitioner’s education history gleaned from the officer’s interview of
petitioner. We agree with the State, however, that the probation officer’s testimony reflects that
the relevant identification of petitioner and the description of his criminal history was the fruit of
the probation officer’s search of the Interstate Identification Index, a database frequently used by
law enforcement officers, and not the fruit of custodial interrogation.5 Petitioner’s Fifth
Amendment rights were not violated, and the circuit court did not err.
4
Again, there is no indication before us that this issue was raised with the circuit court. In
this instance, however, petitioner has characterized the assigned error as “clear and plain” and
though he expounds little upon this statement, we will consider this a request that we apply the
plain error doctrine. “To trigger application of the ‘plain error’ doctrine, there must be (1) an
error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness,
integrity, or public reputation of the judicial proceedings.” Syl. Pt. 7, State v. Miller, 194 W.Va.
3, 459 S.E.2d 114 (1995). As explained in the body of this decision, there is no error and we
need not proceed beyond the first prong in this analysis.
5
Custodial interrogation brings about “inherently compelling pressures” (Miranda v.
Arizona, 384 U.S. 436, 467, 86 S. Ct. 1602 (1966)), thought to “induce a frighteningly high
percentage of people to confess to crimes they never committed” (Corley v. United States, 556
U.S. 303, 320, 129 S. Ct. 1558, 1570 (2009)). There is no evidence that the routine probationary
interview to which petitioner submitted rises to such a level, or that it would it would be
characterized as such under the considerations we have announced:
The factors to be considered by the trial court in making a determination of
whether a custodial interrogation environment exists, while not all-inclusive,
include: the location and length of questioning; the nature of the questioning as it
relates to the suspected offense; the number of police officers present; the use or
absence of force or physical restraint by the police officers; the suspect’s verbal
and nonverbal responses to the police officers; and the length of time between the
questioning and formal arrest.
Syl. Pt. 2, State v. Middleton, 220 W.Va. 89, 640 S.E.2d 152 (2006).
(continued . . .)
7
D.
We turn to petitioner’s fourth assignment of error, wherein he argues that the circuit court
erred in admitting documentary evidence—that is, judgment orders from other jurisdictions—
certifying prior criminal convictions in support of his recidivist conviction.6 Petitioner contends,
without citing legal authority, that the State failed to lay a proper foundation showing that the
investigating officer through whom the records were introduced was a custodian of the
documents or that he otherwise had “personal knowledge of the identification processes.”
However, when overruling defense counsel’s trial objection on this matter, the circuit court
specifically explained that the proffered judgments were domestic public documents under seal,
and petitioner does not dispute that characterization. Such documents are self-authenticating
pursuant to Rule 902(1) of the West Virginia Rules of Evidence.7 We explicated the meaning of
“self-authenticating” last year in State v. Boyd, 238 W.Va. 420, 446, 796 S.E.2d 207, 233 (2017),
wherein we cited People v. Wiedemer, 641 P.2d 289, 291 (Colo. App. 1981)(Documents,
including court judgments “duly self-authenticated by a public seal, were properly admitted
without oral testimony.”) When a document the court deems self-authenticating under Rule 902
is proffered, the proponent is relieved of the requirement to lay foundation through a witness.
The circuit court committed no error in so finding.
E.
Finally, we reach petitioner’s fifth assignment of error. He contends that the circuit court
lacked jurisdiction to apply the recidivist enhancement because the State failed to make the
requisite showing announced in the syllabus of State v. McMannis, 161 W.Va. 437, 242 S.E.2d
571 (1978):
Where a prisoner being proceeded against under the habitual criminal statute
remains silent or says he is not the same person who was previously convicted
and sentenced to the penitentiary offense or offenses alleged in the information, a
circuit court has no jurisdiction to impose an enhanced sentence under the statute
where the State fails to prove beyond a reasonable doubt that each penitentiary
6
The judgment orders, though fundamental to at least one of petitioner’s assignments of
error, are inexplicably omitted from the appendix record on appeal.
7
That rule specifies that extrinsic evidence of “authenticity as a condition precedent to
admissibility is not required” for:
(1) Domestic public documents under seal. A document bearing a seal purporting
to be that of the United States, or of any state, district, commonwealth, territory,
or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of
the Pacific Islands, or of a political subdivision, department, officer, or agency
thereof, and a signature purporting to be an attestation or execution.
8
offense, including the principal penitentiary offense, was committed subsequent
to each preceding conviction and sentence.
More specifically, petitioner asserts that “the State did not prove that [petitioner’s] Pennsylvania
state court convictions for possession of a firearm subjected him to punishment in a penitentiary
prior to his subsequent conviction in [f]ederal [c]ourt for the same offense[].” Petitioner, in other
words, argues that the State introduced insufficient evidence to support his recidivist conviction.
Again, we note:
A criminal defendant challenging the sufficiency of the evidence to support a
conviction takes on a heavy burden. An appellate court must review all the
evidence, whether direct or circumstantial, in the light most favorable to the
prosecution and must credit all inferences and credibility assessments that the jury
might have drawn in favor of the prosecution. The evidence need not be
inconsistent with every conclusion save that of guilt so long as the jury can find
guilt beyond a reasonable doubt. Credibility determinations are for a jury and not
an appellate court. Finally, a jury verdict should be set aside only when the record
contains no evidence, regardless of how it is weighed, from which the jury could
find guilt beyond a reasonable doubt. To the extent that our prior cases are
inconsistent, they are expressly overruled.
Syl. Pt. 3, Guthrie. The State correctly avers that it introduced at trial no evidence of a state
firearms conviction. Petitioner did not dispute that assertion in his reply brief. Our consideration
of this matter could thus end here, inasmuch as petitioner has failed to surmount the “heavy
burden” described in Guthrie.
However, recognizing that petitioner’s lengthy criminal history lends to potential
confusion, we are compelled to delineate the timeline that establishes petitioner’s recidivism.
Det. Lt. Yost testified about his review of petitioner’s background. Together with the self-
authenticating judgment orders described in the preceding section, Det. Lt. Yost’s testimony
established that petitioner was arrested in May of 2004 and subsequently convicted in October of
2004 on the state felony offense of possession with intent to deliver a controlled substance (“the
first offense”); arrested in April of 2005 and subsequently convicted in November of 2008 on the
state felony offense of possession with intent to deliver or manufacture crack cocaine (“the
second offense”); arrested in June of 2006 for the state offenses of aggravated assault and illegal
possession of a firearm, and subsequently convicted in March of 2008 on only the felony
aggravated assault charge (“the third offense”); and charged on some unspecified date with two
federal felony offenses of being a prohibited person in possession of a firearm, which prompted a
plea bargain conviction on one of those charges (“the fourth offense”). Det. Lt. Yost testified that
each felony of which petitioner was convicted was punishable by confinement in a penitentiary.
His testimony establishes that petitioner’s second offense was committed subsequent to his
conviction on the first offense. His testimony further established that petitioner’s present felony
conviction—that is, the statutorily-described “principal penitentiary offense”—was committed
after his conviction of the second offense. The progression of these three offenses, without
question, satisfies the recidivist enhancement prerequisite set forth in West Virginia Code § 61-
11-18:
9
When it is determined, as provided in section nineteen of this article, that [a
person convicted of an offense and is subject to confinement in the state
correctional facility therefor] shall have been twice before convicted in the United
States of a crime punishable by confinement in a penitentiary, the person shall be
sentenced to be confined in the state correctional facility for life.
The jury having been presented with the unassailable evidence of the timeline of these
convictions and having deemed petitioner a recidivist offender, the circuit court was within its
jurisdiction to attach the recidivist enhancement to petitioner’s sentence.8
8
Petitioner’s fifth assignment of error rested entirely, as described in the body of this
decision, on his assertion that two of his convictions grew from his possession of a firearm, and
thus could not be considered separate predicate offenses because they arose from the same
criminal transaction. We reiterate petitioner’s precise assertion: “The State did not prove that
[petitioner’s] Pennsylvania state court convictions for possession of a firearm subjected him to
punishment in a penitentiary prior to his subsequent conviction in [f]ederal [c]ourt for the same
offense[].” As the State pointed out, that was not the case. The evidence proffered at trial and
contained in the appendix record on appeal shows no conviction for any state firearms offense.
Nevertheless, we are reluctant to consider petitioner’s third or fourth offenses (aggravated
assault and being a prohibited person in possession of a firearm, respectively) as predicate due to
the uncertain details of those convictions. First, Det. Lt. Yost testified that petitioner was
convicted of the third offense (aggravated assault) in March of 2008. But based on Det. Lt.
Yost’s testimony, petitioner was not convicted of the second offense (possession with intent to
deliver a controlled substance) at the time of his arrest for that offense, because the second
offense conviction was not completed until November of 2008. The third offense thus does not
appear to conform to our explanation in McMannis that any qualifying predicate offense be
proven to have been committed subsequent to the preceding conviction and sentence. McMannis,
161 W.Va. at 437, 242 S.E.2d at 572-73. Second, Det. Lt. Yost testified that petitioner was
“charged as a prohibited person [in possession of a firearm] based on his prior felony
convictions,” and it is not clear whether the detective meant that petitioner’s status as a
prohibited person was based on the earlier offenses or that he was in possession of firearms when
arrested for the earlier offenses and consequently charged with the fourth offense. This
uncertainty also casts doubt on the satisfaction of McMannis. Third, Det. Lt. Yost testified that
petitioner’s sentence for the third offense (the state offense of aggravated assault) was ordered to
run concurrently with his sentence for his fourth offense (the federal offense of being a
prohibited person in possession of a firearm). Accordingly, we are left wondering whether
petitioner entered into state and federal plea agreements in a tandem arrangement or, at least,
close in time. The date of conviction for petitioner’s fourth offense is not readily apparent on the
face of the record and neither party has provided that information. We nevertheless recognize
that consideration of the third and fourth offenses as predicate for recidivist purposes may
approach precarious terrain, in light of our prior pronouncement that “multiple convictions on the
same day are treated as one conviction for purposes of enhancing any subsequent felony
(continued . . .)
10
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: June 15, 2018
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
Justice Loughry, Allen H., II suspended and therefore not participating.
convictions.” Turner v. Holland, 175 W. Va. 202, 203, 332 S.E.2d 164, 166 (1985) citing State
ex rel. Hill v. Boles, 149 W.Va. 779, 143 S.E.2d 467 (1965).
Despite the uncertainty surrounding the third and fourth offenses, however, and as
explained in the body of this decision, the evolution of petitioner’s first, second, and principle
penitentiary offenses indisputably meets the recidivism criteria described in McMannis.
Moreover, petitioner has not assigned error to the considerations related herein, and we have
undertaken this evaluation only to aid our disentanglement of the qualifying predicate offenses
from the whole of petitioner’s criminal past.
11