Strike Three, You’re Out! The West Virginia Recidivist Act
If you or a loved one are facing a West Virginia felony criminal charge and were previously found guilty or pled guilty to a felony offense, it is critical that you and your West Virginia criminal defense lawyer analyze the case within the context of the West Virginia Recidivist Act. Recidivism is the tendency to repeat certain conduct. The Act provides heightened penalties for defendants with prior felonies. A second strike or conviction under the Act requires a longer prison sentence. A third strike subjects a defendant to life in prison.
This article provides a brief overview of the West Virginia Recidivist Act. It is a substitute for legal advice. You should consult with a West Virginia criminal lawyer about your specific case.
Qualifying Offenses
West Virginia law sets forth felony crimes that subjects a defendant to the Recidivist Act. W.Va. Code § 61-11-18(a). Though not an exhaustive list, some examples of qualifying offenses include, but are not limited to:
possession of a controlled substance with intent to deliver;
murder;
voluntary manslaughter;
malicious assault;
assault during the commission of a felony;
kidnapping;
third-offense domestic violence;
arson-related offenses;
burglary;
grand larceny;
malicious killing of an animal;
soliciting a minor;
intentionally disarming an officer;
threats of terroristic acts;
prohibited possession of a firearm;
wanton endangerment involving a firearm;
certain cruelty to animal charges;
sex-related offenses;
distribution of explicit material related to minors;
child neglect resulting in death;
conspiracy to commit a felony;
the attempt to commit certain felony offenses;
human trafficking; and
DUI causing death.
The Two-Strike Rule
If a defendant in a felony case is found guilty or pleads guilty to a “qualifying offense,” he or she is subject to a greater prison sentence if he or she has previously been “convicted in the United States of a crime punishable by imprisonment in state or federal correctional facility.” W.Va. Code § 61-11-18(b). As discussed below, the State of West Virginia has the burden of proving that the defendant was previously convicted of an offense that qualifies under the Act.
Where a defendant has a previous felony conviction and is found guilty or pleads guilty to a “qualifying offense,” the court will add five years to the sentence if the sentence to be imposed is for a definite number of years. If the sentence for the crime subjects the defendant to an indeterminate sentence, the minimum term of the indeterminate sentence is doubled. W. Va. Code § 61-11-18(b).
The Two-Strike Rule in Murder Cases
If a defendant was previously convicted of first or second-degree murder and is thereafter is found guilty or pleads guilty to first or second-degree murder, or a crime with substantially similar elements, the defendant is subject to life in prison and is not eligible for parole. W.Va. Code § 61-11-18(c).
The Three-Strike Rule
West Virginia Code § 61-11-18(d) provides, in part, that if a defendant has “twice before convicted in the United States of a crime punishable by imprisonment in a state or federal correctional facility which has the same or substantially similar elements as a qualifying offense, the person shall be sentenced to imprisonment in a state correctional facility for life.” Hence, the Act provides that after being found guilty of a third qualifying offense or similar offense, the penalty is life in prison. There are certain statutory exceptions to the three-strike rule that relate to the passage of time.
Trials on Subsequent Offenses
The fact that a defendant was previously found guilty or pled guilty to a qualifying offense is something that the State of West Virginia must prove. Before a defendant is sentenced on the current felony case, the prosecutor is required to inform the Court of the prior conviction or convictions. If a defendant does not admit that he or she was previously convicted, a jury will be empaneled to determine “whether the prisoner is the same person mentioned” in the criminal records. W.Va. Code § 61-11-19.
Challenging the Three-Strike Rule
Laws passed by the West Virginia Legislature must comport with the West Virginia Constitution. The West Virginia Constitution places limitations upon the application of the three-strike rule. For example, two of the three prior felony convictions “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.” Syl. Pt. 12, in part, State v. Hoyle, 242 W. Va. 599, 836 S.E.2d 817 (2019). It is critical to talk with an attorney about potential constitutional challenges based upon the unique facts of the case.
Contact a West Virginia Criminal Defense Lawyer
West Virginia’s three-strike rule contained within the Recidivist Act subjects a defendant to life in prison for third qualifying, felony conviction. Your attorney should look closely at the Recidivist Act when determining the best path for your case. It could be the difference between receiving a life sentence or something less. Barney Law PLLC, a Putnam County criminal law firm, represents clients facing the three-strike rule. Though our office is located in Putnam County we represent clients throughout the area.