JUSTICE McHUGH delivered the Opinion of the Court.
McHugh, Justice:
The pending matter involves three cases consolidated for purposes of appeal
Appellant Charles J. James (hereinafter "Mr. James") was accused of giving alcohol to the thirteen-year-old sister of his girlfriend while he was alone with the minor in the girlfriend's apartment. The minor alleged that after giving her the alcohol Mr. James fondled and massaged her breasts. In response to the unwanted physical advances, the minor ran back to her home, told her mother what had happened and the mother immediately called the police. Mr. James was twenty-five years of age at the time of the incident.
After probable cause was found at the preliminary hearing to bind the case over for presentment to the grand jury, Mr. James entered a plea to first degree sexual abuse pursuant to State ex rel. Kennedy v. Frazier, 178 W.Va. 10, 357 S.E.2d 43 (1987).
Mr. James filed an appeal of the sentencing order with this Court. He reiterates the arguments raised below regarding West Virginia Code § 62-12-26 being unconstitutional on the grounds that it: (1) violates double jeopardy prohibitions by allowing multiple punishments to be imposed for the same offense, (2) offends due process principles by removing the jury from the assessment of facts regarding the increased penalty of supervised release, and (3) constitutes cruel and unusual punishment. In the alternative, Mr. James argues that the trial court abused its discretion by imposing an unduly harsh thirty-year period of extended supervision.
Appellant Jerry Lee Hedrick (hereinafter "Mr. Hedrick") was found guilty by a jury of two counts of sexual abuse in the first degree. The general facts underlying the felony convictions are that when Mr. Hedrick was fifty-five years old he made uninvited and unwanted sexual advances to a twenty-five year old employee when she asked for a day off. As charged in the indictment, Mr. Hedrick subjected the employee to sexual contact by touching her buttocks and her breasts without her consent and by use of forcible compulsion.
The August 10, 2009, order of the Circuit Court of Mineral County reflects that the convictions resulted in a sentence of one to five years in the penitentiary for each count of first degree sexual abuse, a fine totaling $20,000, and twenty-five years of supervised release upon completion of the jail term. The prison sentence and fine were made pursuant to the first degree sexual abuse statute (W.Va. Code § 61-8B-7), and the period of supervised release pursuant to the provisions of the extended supervision statute (W.Va. Code § 62-12-26).
In his petition for appeal to this Court, Mr. Hedrick alleged various grounds for reversal. Appeal was granted solely as to the constitutionality of West Virginia Code § 62-12-26. Mr. Hedrick's constitutional arguments center on due process and cruel and unusual punishment concerns.
Appellant Steven Daniels (hereinafter "Mr. Daniels") was originally charged by criminal complaint in magistrate court with forty-eight counts of third degree sexual assault (W.Va. Code § 61-8B-5) and for distribution of obscene material to a minor (W.Va. Code § 61-8A-4). As represented in the information contained in the record, Mr. Daniels was twenty years old when he engaged in sexual relations with a fourteen-year-old girl
On October 6, 2008, Mr. Daniels tendered guilty pleas to one count of third degree sexual assault and one count of possession of a controlled substance with intent to deliver.
Mr. Daniels sought relief from this Court to prohibit enforcement of the supervised release portion of his sentence on the basis that the enhancement provisions of West Virginia Code § 62-12-26 are unconstitutional as cruel and unusual punishment. Although styled as a petition for writ of prohibition, the matter was granted for review by this Court as a direct appeal.
Because of the mutual statutory concern raised in the petitions for review in these three cases, they were consolidated for appeal purposes.
These cases are on appeal from sentencing orders of circuit courts and primarily involve challenges to the constitutionality of a sentencing statute. As established in syllabus point one of State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997), "[t]he Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands." Further, "the constitutionality of a statute is a question of law which this Court reviews de novo." Syl. Pt. 1, State v. Rutherford, 223 W.Va. 1, 672 S.E.2d 137 (2008). Nonetheless, we proceed with caution in examining constitutional challenges to legislative enactments because a statute is presumed to be constitutional.
With these standards and considerations in mind, we proceed with our examination of the arguments of the parties.
Central to all of the arguments raised in the pending cases is the extended supervision statute, West Virginia Code § 62-12-26 (hereinafter "§ 62-12-26"). Fundamentally, the statute provides that a court impose a period of extended supervision as part of the criminal sentence for certain specified offenses, and sets forth the manner in which the supervision is to be administered and enforced. The general operation of the statute is set forth in subsection (a) of § 62-12-26 as follows:
(emphasis added). Appearing somewhat imposing in its entirety — due in large part to the interjection of a number of statutory references and the insertion of three provisos qualifying the general premise — the meaning of the subsection is fairly straightforward. The general premise clearly states the intent of the Legislature that the sentence imposed for certain felony offenses must include the additional penalty of a period of supervised release of up to fifty years.
The following chart depicts the convictions and sentences received in the cases before us:
We simply observe that none of the offenses involved a victim under the age of twelve and none of the appellants were declared to be sexually violent predators. Accordingly, neither the ten year minimum nor the lifetime mandatory statutory periods of supervised release were invoked. Additionally, only the imposition of supervised release sentences has occurred in these cases, and no attempt has been made to modify, terminate or revoke the supervised release portions of the sentences. Against this backdrop we proceed to examine the cruel and unusual punishment, due process, and double jeopardy arguments raised.
The three appellants maintain that West Virginia Code § 62-12-26 is facially unconstitutional as violating the cruel and unusual punishment provisions of the federal and state constitutions. They argue that the facial repugnancy of the statute is apparent in its excessive restraint on freedom for certain crimes. The focus of their complaint is the imposition of an additional non-discretionary punishment for certain offenses, primarily committed by sex offenders.
The State maintains that the supervised release statute is constitutionally sound on its face as being part of the overall punishment the Legislature views as necessary to protect society from sexual offenders.
The reluctance of courts to apply the proportionality principle inherent in the cruel and unusual punishment clause has long been recognized by this Court. State v. Vance, 164 W.Va. 216, 262 S.E.2d 423 (1980). Such reluctance is an expression of due respect for legislative authority. As observed by the U.S. Supreme Court in Solem v. Helm, 463 U.S. 277, 290 (1983), "[r]eviewing courts, of course, should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes. . . . "We further recognized in Vance that statutes prescribing punishment for crimes either causing or having the potential for causing violence to the person are more likely to be upheld. Id. at 233, 262 S.E.2d at 432.
Subjective and objective tests are considered in determining whether a sentence violates proportionality principles. The subjective test, set forth in syllabus point five of State v. Cooper, 172 W.Va. 266, 304 S.E.2d 851 (1983), involves ascertaining whether the punishment is so disproportionate to the crime that it "shocks the conscience and offends fundamental notions of human dignity." The objective test was stated in syllabus point five of Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981), as follows:
It was further noted in syllabus point four of Wanstreet that proportionality standards may apply to any criminal sentence, but that in reality they are applied to those sentences where no fixed maximum sentence is set by statute or a life recidivist statute is involved.
Appellants jointly maintain that the supervised release statute contains a punishment which shocks the conscience, is excessive and disproportionate to the degree and character of the offenses committed and is dissimilar to sentences for other comparable crimes.
We do not find that the statutorily prescribed periods of supervised release "shock the conscience", particularly since the supervision is a less restrictive restraint on personal liberty and the period of supervision is contingent upon the facts and circumstances of each case. It is obvious that the Legislature has determined that in order to adequately protect society, the crimes enumerated in the supervised release statute require community-based supervision and treatment over and above incarceration. Supervised release is a method selected by the Legislature to address the seriousness of these crimes to the public welfare and to provide treatment during the transition of offenders back into society with the apparent goal of modifying the offending behavior.
Similarly, we fail to see that the provisions of the supervised release statute are facially flawed because they unfailingly result in a disproportionate punishment in consideration of the nature of the offenses committed. The appropriate period of transition through supervised release in each case is largely left to the determination and sound discretion of the sentencing court. Further, although the sentence of supervised release may be dissimilar from sentences for other crimes, it is within the legislative prerogative to address societal problems through such policy determinations. Thus, any change in policy is a legislative rather than judicial concern.
In sum, we find that West Virginia Code § 62-12-26 is not facially unconstitutional on cruel and unusual punishment grounds in contravention of the Eighth Amendment to the United States Constitution or Article III, § 5 of the West Virginia Constitution.
Mr. James and Mr. Hedrick also maintain that even if the statute is not unconstitutional on its face as cruel and unusual punishment, the sentence of supervised release imposed in each of their cases is unconstitutionally disproportionate.
Mr. James received a supervised release sentence of thirty years. His crime involved sexual assault of a thirteen-year-old child. This child was placed in such fear of the sexual advances of groping and fondling by her sister's boyfriend that she immediately ran out of the house and sought protection from her mother. The young girl, as a result of her tender age, falls within a class of victims that the laws of our State seek most to protect, especially with regards to sexually oriented offenses. The judge expressly chose not to impose the statutory maximum period for supervised release, by stating at the sentencing hearing that fifty years "would best be preserved for sexual offenses against infants, against toddlers." We find nothing unconstitutionally disproportionate in this sentence, especially since the period of supervised release may be modified after two years have been served.
Although Mr. Hedrick's case did not involve a minor, crimes of violence against the person were nonetheless involved. The twenty-five-old victim of Mr. Hedrick's uninvited and unwelcome sexual advances was an employee — a subordinate requesting time off from her boss. Mr. Hedrick took advantage of this disparate relationship and attempted to intimidate the young woman (who was thirty years his junior) in order to obtain sexual favors. The victim was so shaken by the experience that she never returned to the workplace. The jury hearing this evidence returned a verdict of guilty on two counts of sexual abuse in the first degree. The judge imposed a supervised release sentence of twenty-five years based on evidence and information, including an evaluation by a forensic psychiatrist. We note from the record before us that among the things indicated in this evaluation was that Mr. Hedrick was at least at a moderate risk for recidivism and reoffending. Based upon these circumstances, the supervised release sentence imposed in Mr. Hendrick's case is not unconstitutionally disproportionate.
Mr. James is joined by Mr. Hedrick in challenging the constitutionality of the supervised release statute on procedural due process grounds. The thrust of their mutual argument is that the statute facially violates due process because it authorizes courts, by summary proceeding and without jury involvement, to impose an additional penalty of supervised release.
Appellants base their first due process argument on the ruling of the U.S. Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000). The Apprendi case involved a situation where a defendant fired several gun shots into the home of an African-American family while stating that he did not want the family in his neighborhood because of their race. The defendant was charged under New Jersey law with second-degree possession of a firearm for unlawful purposes which carried a five to ten year prison sentence. The charge did not reference New Jersey's hate crime statute which provided that a judge may enhance a sentence if the judge found by a preponderance of the evidence that the defendant committed a crime with the purpose or intent of intimidating a person or group because of race. Discussing due process in light of enhanced sentencing, the Supreme Court in Apprendi held that "[o]ther than 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." Id. at 490 (emphasis added). Applying the reasoning in Apprendi to § 62-12-26, Mr. James and Mr. Hedrick contend that the statute violates due process by authorizing judges, without jury involvement, to enhance punishment by imposing a second sentence of up to fifty years of supervised release for felony offenses which statutorily carry a penalty of incarceration.
The State maintains that the appellants misconceive what constitutes the statutory maximum period imposed for the offenses they committed. The State directs us to Blakely v. Washington, 542 U.S. 296 (2004), wherein the U.S. Supreme Court said that "the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Id. at 303 (emphasis in the original). According to the State, no additional facts are required to be found by a court beyond the actual conviction for one of the designated offenses in order to impose a period of supervision pursuant to the terms of § 62-12-26. We agree.
As we observed at the outset of our discussion, § 62-12-26(a) reflects the legislative intent to impose a new and additional penalty to the sentence of a person convicted of certain enumerated offenses. The statute clearly states that "any defendant convicted . . . [of the listed felony offenses] shall, as part of the sentence imposed at final disposition, be required to serve, in addition to any other penalty or condition imposed by the court, a period of supervised release. . . ." W.Va. Code § 62-12-26(a) (emphasis added). Consequently, the statute does not offend due process as it provides that the existing sentences in the statutes defining the elements of the listed felony offenses be combined with the supervised release statute to form the statutory maximum sentence for each of these crimes. In order to impose a period of supervised release pursuant to § 62-12-26, a court need make no additional findings beyond the indisputable fact that a conviction for one of the designated offenses has occurred. As such, there is no new factual issue for a jury to decide. The length of time imposed is within the trial judge's discretion.
We likewise find no merit in the proposition that due process requires jury involvement whenever a sentencing judge considers the facts surrounding the conviction in order to determine an appropriate sentence. The Supreme Court in Apprendi stated that there is nothing that "suggests that it is impermissible for judges to exercise discretion — taking into consideration various factors relating both to offense and offender — in imposing a judgment within the range prescribed by statute." 530 U.S. at 481 (emphasis in original). As related by the Second Circuit Court of Appeals in United States v. White, 240 F.3d 127, 136 (2
Mr. James also contends a violation of procedural due process on vagueness grounds. He states that under the terms of the statute a person on supervised release is not provided adequate notice of prohibited conduct because the terms of the statute allows for the creation of arbitrary and capricious supervised release rules having no standardized supervisory guidelines. He also maintains that this lack of statutory direction will result in selective and discriminatory enforcement.
In deciding a facial challenge to the vagueness of a criminal statute, this Court considers whether the subject statute is
Syl. Pt. 1, in part, State v. Flinn, 158 W.Va. 111, 208 S.E.2d 538 (1974). We are further guided by the following holding from syllabus point one of State ex rel. Myers v. Wood, 154 W.Va. 431, 175 S.E.2d 637 (1970):
In sum, vagueness challenges seek to vindicate two principles of due process: fair notice by defining prohibited conduct so that such behavior can be avoided, and adequate standards to prevent arbitrary and discriminatory law enforcement. Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). The State suggests that no issue of fair notice is raised with regard to a sentencing statute such as § 62-12-26. We find such suggestion contrary to established law. As stated in syllabus point two of State v. Flinn with regard to a constitutional vagueness challenge, "[s]tatutes involving a criminal penalty, which govern potential First Amendment freedoms or other similarly sensitive constitutional rights, are tested for certainty and definiteness by interpreting their meaning from the face of the statute." 158 W.Va. at 111, 208 S.E.2d at 539. The provisions of § 62-12-26 unquestionably involve a criminal penalty and the provisions challenged on vagueness grounds have the potential of interfering with the sensitive constitutional right of personal liberty. Consequently the conduct which may place a restraint on liberty must be adequately defined under the statute.
However, we do not find that the statute is facially vague in providing fair notice or adequate standards. The statute specifies that a written statement of the conditions of supervised release be provided to each defendant and that the statement be "sufficiently clear and specific to serve as a guide for the defendant's conduct and for such supervision as is required." W.Va. Code § 62-12-26(h). While the statute does not define uniform conditions of supervised release applicable to all cases, it defines the breadth of the discretion of the sentencing judge. In addition to specifying mandatory conditions applicable to those receiving the mandatory minimum ten year or life term of supervisory release (§ 62-12-26(b)), the supervised release statute expressly provides that an offender placed on supervised release is "subject to any or all of the conditions applicable to a person placed upon probation . . . ." W. Va. Code § 62-12-26(e); see W. Va. Code § 62-12-9 (statutory probation conditions). Through the probation statute, the Legislature has afforded trial courts the flexibility to fashion reasonable conditions appropriate to the circumstances in each case. See W. Va. Code § 62-12-9(b). Such flexibility does not amount to a vague law.
The United States Supreme Court explained in Grayned v. City of Rockford that "[a] vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." 408 U.S. at 108-109. No such policy determination is left to judges under the terms of the supervised release statute. A judge has no choice when someone is convicted of one of the offenses listed in § 62-12-26 but to impose a term of supervised release subject to required or allowable legislatively prescribed conditions. As a result, the due process challenge of the supervised release statute on the grounds that it is facially void for vagueness must fail.
Based upon the above discussion, we conclude that West Virginia Code § 62-12-26 does not facially violate due process principles of the Fourteenth Amendment to the Constitution of the United States or Article III, Section 10 of the Constitution of West Virginia. The terms of the statute neither infringe upon a criminal defendant's right to jury determination of relevant factual matters, nor are the provisions of the statute regarding conditions of unsupervised release unconstitutionally vague.
Double jeopardy concern was raised solely by Mr. James. He asserts that the terms of § 62-12-26 violate double jeopardy provisions of the federal and state constitutions on two grounds. First, the statute imposes multiple punishments for the same offense, and second, the revocation segment of the statute expressly allows a court not to give credit for time served on supervised release.
Mr. James' first double jeopardy claim is that the statute is facially unconstitutional on due process grounds because the term of supervised release constitutes multiple punishments for the same offense. See Conner v. Griffith, 160 W.Va. 680, 682-83, 238 S.E.2d 529, 530 (1977) (finding federal constitutional double jeopardy provisions coextensive with double jeopardy protections under state constitution: protecting against a second prosecution for the same offense both after acquittal and after conviction, and against multiple punishments for the same offense). He maintains that the effect of the supervised release statute results in an improper additional sentence for the same act. We disagree with the meaning Mr. James assigns to double jeopardy protection.
As explained in syllabus point three of State v. Sears, 196 W.Va. 71, 468 S.E.2d 324 (1996), "the purpose of the Double Jeopardy Clause is to ensure that sentencing courts do not exceed, by the device of multiple punishments, the limits prescribed by the legislative branch of government, in which lies the substantive power to define crimes and prescribe punishments." The United States Supreme Court has similarly recognized that the double jeopardy protection against cumulative punishments "is designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature. Because the substantive power to prescribe crimes and determine punishments is vested with the legislature[,] . . . the question under the Double Jeopardy Clause whether punishments are `multiple' is essentially one of legislative intent." Ohio v. Johnson, 467 U.S. 493, 499 citations omitted) (1983). Thus, it is well within the authority of the Legislature to intentionally prescribe multiple punishments for the same conduct. Moreover, it is a common legislative practice for criminal statutes to provide multiple punishment through imposition of sentences containing both jail and fine penalties.
Turning to the language of § 62-12-26(a), we find the Legislature's intention is plainly stated. See Syl. Pt. 1, State v. Jarvis, 199 W.Va. 635, 487 S.E.2d 293 (1997) (a statute plainly expressing legislative intent will be given full force and effect without court interpretation). The statute before us requires courts sentencing persons convicted of certain crimes enumerated in the statute to impose a term of supervised release "as part of the sentence . . . at final disposition." By enacting § 62-12-26, the Legislature chose to exert its authority to prescribe supervised release as another type of punishment for certain felony offenses to be imposed in addition to existing penalties of incarceration and fines as part of the sentence. Thus the statute is not facially unconstitutional on double jeopardy grounds. Furthermore, the statute as applied did not violate double jeopardy principles because the courts in each of the cases at hand imposed supervised release upon conviction of felonies specified in § 62-12-26 within the parameters therein authorized by the Legislature.
As a result of the foregoing analysis we conclude that the imposition of the legislatively mandated additional punishment of a period of supervised release as an inherent part of the sentencing scheme for certain offenses enumerated in West Virginia Code § 62-12-26 (2009) does not on its face violate the double jeopardy provisions contained in either the United States Constitution or the West Virginia Constitution.
The second double jeopardy argument raised by Mr. James relates to an event which has not yet occurred in any of the cases on appeal. It involves a revocation provision of the supervised release statute. Mr. James specifically argues that § 62-12-26(g)(3) violates double jeopardy by failing to allow credit for time served while on supervised release. The referenced provision reads as follows:
Emphasis added. The statute is written in permissive terms, so the possible consequences Mr. James fears are speculative at this point. Consequently, there is no justiciable controversy before us. As we observed in Harshbarger v. Gainer, 184 W.Va. 656, 659, 403 S.E.2d 399, 402 (1991),"state and federal . . . [courts] have continuously maintained that they will not give `advisory opinions.'" Relying on the U.S. Supreme Court decision in Fleming v. Rhodes, 331 U.S. 100, we went on to note in Harshbarger that litigants may only challenge the constitutionality of a statute insofar as it affects them. Id. Accord State ex rel. ACF Indus., Inc. v. Vieweg, 204 W.Va. 525, 533 n. 13, 514 S.E.2d 176, 184 n. 13 (1999) (recognizing that "this Court cannot issue an advisory opinion with respect to a hypothetical controversy"). As a result, we deem Mr. James' second double jeopardy concern prematurely raised.
For the foregoing reasons, we affirm the appealed September 2, 2009, sentencing order of the Circuit Court of Ohio County, the August 10, 2009, sentencing order of the Circuit Court of Mineral County and the July 20, 2010, sentencing order of the Circuit Court of Logan County.
Affirmed.
West Virginia Code § 62-12-26 provides in its entirety:
