Borden Does Not Control West Virginia’s Habitual Offender Statute: DUI Causing Serious Bodily Injury Remains a “Crime of Violence” for Recidivist Life Sentencing

Borden Does Not Control West Virginia’s Habitual Offender Statute: DUI Causing Serious Bodily Injury Remains a “Crime of Violence” for Recidivist Life Sentencing

Introduction

In State of West Virginia v. Kevin Costello, No. 23-489 (Sept. 10, 2025), the Supreme Court of Appeals of West Virginia issued a memorandum decision affirming the denial of a Rule 35(a) motion to correct sentence. The case arises from a 2017 drunk-driving crash that permanently injured a two-year-old child. After a jury convicted Kevin Costello of felony DUI causing serious bodily injury (W. Va. Code § 17C-5-2(c)), the State pursued a recidivist proceeding based on two prior drug felonies (a 2000 federal conviction for distribution of crack cocaine and a 2012 Maryland conviction for possession of heroin with intent to deliver). A jury found those prior convictions qualified under West Virginia’s habitual offender statute, W. Va. Code § 61-11-18(c) (2000), and the circuit court imposed a recidivist life sentence with mercy.

Mr. Costello’s direct appeal failed in 2021 (State v. Costello, 245 W. Va. 19, 857 S.E.2d 51 (“Costello I”)), where the Court held his recidivist life sentence constitutionally proportionate under State v. Hoyle. In 2022, he returned to the circuit court with a Rule 35(a) motion, arguing that his sentence was “illegal” because, under the United States Supreme Court’s decision in Borden v. United States, DUI causing serious bodily injury is not a “violent felony.” He also challenged the habitual offender statute as void for vagueness. The circuit court denied relief, and the Supreme Court of Appeals affirmed.

The key issues:

  • Whether Borden’s interpretation of “violent felony” under the federal Armed Career Criminal Act (ACCA) applies to West Virginia’s recidivist statute, thereby disqualifying DUI causing serious bodily injury as a recidivist-triggering offense.
  • Whether W. Va. Code § 61-11-18(c) (2000) is void for vagueness because it does not enumerate elements of violence or intent and purportedly forces litigants to rely on case law to identify qualifying offenses.
  • Whether any supposed timeliness ruling on the Rule 35(a) motion affected the outcome.

Summary of the Opinion

The Supreme Court of Appeals affirmed the circuit court’s order denying the Rule 35(a) motion. It held:

  • Borden and related federal immigration/ACCA “crime of violence” jurisprudence do not govern West Virginia’s habitual offender statute. The state statute and its constitutional proportionality overlay are distinct.
  • Under longstanding West Virginia precedent—State v. Williams (1996) and State ex rel. Appleby v. Recht (2002)—DUI causing serious bodily injury is a “crime of violence” that can support a recidivist life sentence. Costello I reaffirmed that the triggering DUI offense involved actual violence and a substantial impact on the child victim.
  • W. Va. Code § 61-11-18 is “plain and unambiguous” (State ex rel. Chadwell v. Duncil), and Mr. Costello—having three felony convictions, including two that “involved an inherent threat of violence”—falls within the statute’s parameters. He therefore lacks standing to mount a facial vagueness challenge (Appleby).
  • Any discussion of timeliness of the Rule 35(a) motion was harmless, because the circuit court reached the merits and the petitioner showed no illegal sentence or illegal manner of imposition (W. Va. R. Crim. P. 52(a)).

Finding no substantial question of law or prejudicial error, the Court resolved the case by memorandum decision without oral argument. See W. Va. R. App. P. 21(c).

Detailed Analysis

1) Precedents and Authorities Cited

  • State v. Costello (“Costello I”), 245 W. Va. 19, 857 S.E.2d 51 (2021): On direct appeal, the Court upheld Mr. Costello’s recidivist life sentence as constitutionally proportionate under the Eighth Amendment and Article III, § 5 of the West Virginia Constitution. Applying Hoyle, the Court emphasized that both predicate drug felonies “involved an inherent threat of violence,” and the triggering DUI causing serious bodily injury “involved actual violence” with a “substantial impact” on the child victim.
  • State v. Hoyle, 242 W. Va. 599, 836 S.E.2d 817 (2019) (Syl. Pt. 12, in part): For a recidivist life sentence to be constitutionally proportionate, two of the three felonies must involve either (1) actual violence, (2) a threat of violence, or (3) a substantial impact upon the victim such that harm results.
  • State ex rel. Appleby v. Recht, 213 W. Va. 503, 583 S.E.2d 800 (2002): Recognized DUI causing serious bodily injury as a “crime of violence supporting imposition of a recidivist sentence,” and explained that a defendant who falls within the statute’s coverage “lacks standing” to bring a facial vagueness challenge.
  • State v. Williams, 196 W. Va. 639, 474 S.E.2d 569 (1996) (Syl. Pt. 3): Same recognition of DUI causing serious bodily injury as a violent crime for recidivist purposes.
  • State ex rel. Chadwell v. Duncil, 196 W. Va. 643, 474 S.E.2d 573 (1996): West Virginia’s recidivist statute, W. Va. Code § 61-11-18, is “plain and unambiguous.”
  • State v. Head, 198 W. Va. 298, 480 S.E.2d 507 (1996): Establishes standards of review for Rule 35 rulings: abuse of discretion for the decision, clear error for facts, de novo for legal questions.
  • Borden v. United States, 593 U.S. 420 (2021): Held that offenses with a mens rea of recklessness do not qualify as “violent felonies” under ACCA. The West Virginia Court found Borden inapplicable to the state recidivist statute.
  • Leocal v. Ashcroft, 543 U.S. 1 (2004): DUI causing serious injury not a “crime of violence” triggering deportation under the INA; the West Virginia Court similarly treated Leocal as inapposite to state recidivist sentencing.
  • W. Va. Code § 17C-5-2(c): Defines felony DUI causing serious bodily injury (punishable by two to ten years).
  • W. Va. Code § 61-11-18(c) (2000): Habitual offender (“recidivist”) provision imposing life imprisonment upon a third felony conviction (statute amended in 2020, but the 2000 version controlled at sentencing).
  • W. Va. R. Crim. P. 35(a): Permits a court to correct an illegal sentence at any time or a sentence imposed in an illegal manner within the time provided by the rule.
  • W. Va. R. Crim. P. 52(a): Harmless error standard.
  • W. Va. R. App. P. 21(c): Authorizes resolution by memorandum decision when no substantial question of law or prejudicial error is present.

2) The Court’s Legal Reasoning

a) ACCA’s “violent felony” jurisprudence does not govern West Virginia’s recidivist statute. Mr. Costello’s principal contention was that DUI causing serious bodily injury cannot serve as a qualifying offense because, under Borden, crimes with a mens rea of recklessness are not “violent felonies.” The Court rejected that argument at the threshold: Borden interprets a federal definition (“violent felony”) specific to ACCA, codified at 18 U.S.C. § 924(e)(2)(B). West Virginia’s habitual offender statute does not incorporate that federal definition, and the state’s proportionality review comes from its own case law, particularly Hoyle and earlier decisions.

b) DUI causing serious bodily injury is a “crime of violence” under West Virginia law. The Court reaffirmed Williams and Appleby, which classify DUI causing serious bodily injury as a crime of violence that can support a recidivist sentence. Costello I itself underscored that Mr. Costello’s triggering DUI offense involved “actual violence” and a “substantial impact” on the child victim—satisfying Hoyle’s constitutional proportionality framework. In short, the offense remains a qualifying predicate in West Virginia regardless of the mens rea analysis under federal ACCA or INA precedents.

c) Constitutional proportionality is distinct from statutory eligibility. W. Va. Code § 61-11-18(c) (2000) unambiguously prescribes a life sentence upon a third felony conviction. West Virginia’s Eighth Amendment proportionality analysis, articulated in Hoyle, imposes a constitutional limitation: a recidivist life sentence is proportionate if two of the three convictions involve actual violence, a threat of violence, or a substantial impact causing harm. Costello I already found that standard met in Mr. Costello’s case, based on the violent nature of his two prior drug felonies and the violent character of the triggering DUI offense. The Rule 35(a) motion offered no basis to revisit that settled proportionality determination.

d) No vagueness problem; no standing for facial challenge. The Court reiterated Chadwell’s pronouncement that § 61-11-18 is “plain and unambiguous.” Appleby further teaches that a defendant who plainly falls within the statute’s reach lacks standing to mount a facial vagueness challenge. Because Mr. Costello had three felony convictions—two of which “involved an inherent threat of violence”—he “clearly” falls within § 61-11-18(c) (2000) and cannot pursue a facial attack on vagueness grounds.

e) Rule 35(a) timeliness discussion was harmless. Although the circuit court discussed timeliness, Rule 35(a) permits correction of an illegal sentence “at any time.” The Supreme Court noted the circuit court reached the merits and, critically, Mr. Costello failed to establish that his sentence was illegal or imposed illegally. Therefore, any error concerning timeliness did not affect substantial rights and was harmless under Rule 52(a).

3) Impact and Forward-Looking Considerations

This decision has several practical consequences:

  • Limits on Borden-based challenges in West Virginia: Defendants cannot invoke ACCA’s “violent felony” framework to narrow the reach of West Virginia’s recidivist statute. Borden and Leocal are confined to their federal statutory contexts and do not displace West Virginia’s settled classification of offenses for habitual offender purposes.
  • Continuing vitality of Appleby and Williams: DUI causing serious bodily injury remains a “crime of violence” in West Virginia’s habitual offender jurisprudence. Defense strategies premised on the absence of an intent-to-injure element will not succeed in reclassifying DUI serious bodily injury as non-violent for recidivist sentencing.
  • Reaffirmation of Hoyle’s proportionality test: The constitutional proportionality check in West Virginia hinges on whether at least two felonies involve actual/ threatened violence or substantial harm to a victim, not on federal “categorical” definitions. Prosecutors and courts will continue to evaluate the nature and impact of the offenses through this state-law lens.
  • Vagueness challenges face a standing bar for covered defendants: Where a defendant’s conduct squarely falls within § 61-11-18(c), facial vagueness challenges will be dismissed for lack of standing, streamlining litigation around the statute’s application.
  • Rule 35(a) scope and strategy: “Illegal sentence” claims must show a sentence beyond statutory authorization or imposed in an illegal manner. Attempts to reframe previously rejected proportionality or classification arguments as “illegality” under Rule 35(a) are unlikely to prevail, especially where prior appellate decisions (like Costello I) have already resolved those questions.

Note: The Court applied the 2000 version of § 61-11-18 because it was in effect at sentencing. Although the statute was amended in 2020, this decision underscores that, at least for pre-amendment cases, West Virginia’s own precedent controls over federal ACCA/INA jurisprudence when defining violent character for recidivist purposes.

Complex Concepts Simplified

  • Recidivist (Habitual Offender) Statute: W. Va. Code § 61-11-18(c) (2000) imposes a life sentence upon a third felony conviction. West Virginia courts overlay a constitutional proportionality test (Hoyle) requiring that at least two of the three felonies involve actual violence, a threat of violence, or substantial harm to a victim.
  • “Crime of Violence” in West Virginia vs. “Violent Felony” under ACCA: ACCA’s “violent felony” definition is a federal statutory term with its own interpretive rules (e.g., Borden’s exclusion of reckless offenses). West Virginia’s identification of a “crime of violence” for recidivist purposes is a matter of state law and constitutional proportionality, not bound by ACCA’s definitions.
  • Rule 35(a): Illegal Sentence vs. Illegally Imposed Sentence: A court may correct an illegal sentence at any time. An “illegal sentence” generally means a sentence not authorized by law (for example, exceeding the statutory maximum). A sentence “imposed in an illegal manner” addresses procedural defects in sentencing. In this case, neither category was satisfied.
  • Facial Vagueness vs. As-Applied Vagueness: A facial vagueness challenge argues a statute is unclear in all or most applications. But a person whose conduct clearly falls within a statute often lacks standing to raise a facial challenge. That was the case here under Appleby; the Court also reaffirmed that § 61-11-18 is “plain and unambiguous.”
  • “With Mercy” Life Sentence: In West Virginia, a life sentence “with mercy” indicates parole eligibility consistent with state law. It differs from a life sentence “without mercy,” which carries no parole eligibility. The precise eligibility parameters are set by statute and parole law, not by this memorandum decision.
  • Memorandum Decision (W. Va. R. App. P. 21(c)): The Court may affirm via memorandum decision when the appeal presents no substantial question of law and no prejudicial error. Memorandum decisions typically apply and reinforce existing law rather than announce new syllabus points.

Conclusion

The Supreme Court of Appeals’ decision in State v. Costello delivers a clear message: federal ACCA and INA case law on “violent felony” or “crime of violence” does not redefine what counts as a qualifying offense for West Virginia’s recidivist statute. DUI causing serious bodily injury remains a “crime of violence” supporting a recidivist life sentence, consistent with Williams and Appleby, and as reaffirmed in Costello I. The Court further confirms that § 61-11-18 is straightforward in its operation; defendants who plainly fall within it cannot mount a facial vagueness attack.

In practical terms, this decision shores up the existing West Virginia framework:

  • Proportionality review continues under Hoyle’s “two-of-three violent or substantially harmful” standard.
  • Borden-inspired challenges to habitual offender adjudications will not gain traction in state court absent changes to state law or controlling state precedent.
  • Rule 35(a) remains available for truly illegal sentences, but it is not a vehicle to relitigate settled proportionality or offense-classification issues.

By affirming the denial of Mr. Costello’s Rule 35(a) motion, the Court preserves doctrinal stability around habitual offender sentencing and clarifies that West Virginia’s violent-offense classifications in this context are governed by state law and precedent—not by federal statutory definitions crafted for different schemes.

Case Timeline (for context)

  • July 2017: DUI crash; two-year-old child suffers serious, permanent injuries.
  • 2018–2019: Conviction for DUI causing serious bodily injury; recidivist trial in February 2019; jury finds two prior qualifying drug felonies; life sentence imposed with mercy.
  • 2021: Costello I affirms conviction and recidivist life sentence as constitutionally proportionate.
  • December 8, 2022: Circuit court denies Rule 35(a) motion to correct alleged “illegal sentence.”
  • September 10, 2025: Supreme Court of Appeals affirms by memorandum decision.

Case Details

Year: 2025
Court: Supreme Court of West Virginia

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