Prosecutorial Use of the Recidivist Statute Cannot Be Set Aside as Arbitrary and Capricious; Life Sentence Is Mandatory When the Hoyle Threshold Is Met

Prosecutorial Use of the Recidivist Statute Cannot Be Set Aside as Arbitrary and Capricious; Life Sentence Is Mandatory When the Hoyle Threshold Is Met

Introduction

In SER State of West Virginia v. The Honorable Bridget Cohee and Lateef Jabrall McGann, the Supreme Court of Appeals of West Virginia granted the State’s petition for a writ of prohibition, directing the Circuit Court of Berkeley County to impose a mandatory recidivist life sentence on Lateef Jabrall McGann. After a jury convicted Mr. McGann of felony fleeing with reckless indifference (W. Va. Code § 61-5-17(f)) and a recidivist jury found he had two qualifying prior felony convictions, the circuit court declined to impose a life sentence, citing Article III, § 5’s proportionality guarantee and characterizing the State’s decision to pursue recidivist sentencing as “arbitrary and capricious.”

The State, unable to appeal the sentence directly, sought extraordinary relief. The high court held that the circuit court clearly erred. First, the sentence was not disproportionate under the West Virginia Constitution where the Hoyle threshold (at least two violent/threat-of-violence/substantial-impact felonies among the three) was satisfied. Second, claims that the prosecutor’s use of the recidivist statute was “arbitrary and capricious” do not state a substantive due process violation; absent a proven equal protection violation through selective prosecution (discriminatory effect and purpose), the prosecutor’s charging discretion stands. The court therefore prohibited entry of any sentence other than a recidivist life sentence.

Summary of the Opinion

  • Writ standard: Applying State ex rel. Hoover v. Berger, the court found the State had no adequate remedy by appeal, would suffer irreparable prejudice from an unlawful sentence, and—most importantly—the circuit court’s order was clearly erroneous as a matter of law.
  • Proportionality: Under State v. Hoyle, a recidivist life sentence is constitutional if at least two of the three felonies involve actual violence, a threat of violence, or a substantial impact upon a victim. The court reaffirmed that fleeing in a vehicle with reckless indifference is a violent felony for proportionality purposes (citing State v. Horton), and it treated wanton endangerment, possession with intent to distribute cocaine base, and felon-in-possession as qualifying violent/threat-of-violence offenses.
  • Mandatory nature of the statute: Once a recidivist jury finds the requisite qualifying prior convictions and identity, W. Va. Code § 61-11-18(d) mandates a life sentence, subject only to constitutional proportionality review (see State v. Harris; State v. Lane).
  • Substantive due process vs. selective prosecution: “Arbitrary and capricious” challenges to the prosecutor’s choice to seek a recidivist enhancement do not provide a cognizable substantive due process basis to avoid the enhancement. The correct lens is equal protection selective prosecution, which requires clear proof of discriminatory effect and purpose (Wayte v. United States; United States v. Armstrong; Oyler v. Boles). No such proof existed.
  • Outcome: The court granted the writ and prohibited the circuit court from imposing any sentence other than life under the recidivist statute (the State sought “life with mercy”).

Analysis

Precedents Cited and Their Role

  • State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996): Provides the five-factor framework for discretionary prohibition where the lower court exceeded its powers. Here, the State had no direct appeal; prejudice would not be correctable later; and the legal error was clear. Factors four and five were not necessary to grant relief, consistent with Hoover’s emphasis on factor three (clear error).
  • State v. Harris, 226 W. Va. 471, 702 S.E.2d 603 (2010) (per curiam): Once a recidivist jury finds the prior qualifying convictions and identity, the trial court must sentence under § 61-11-18. The circuit court’s contrary view of discretion was erroneous.
  • State v. Lane, 241 W. Va. 532, 826 S.E.2d 657 (2019): Even though § 61-11-18 uses “shall,” recidivist life sentences remain subject to proportionality review under Article III, § 5. The Supreme Court affirmed that review happened here—but disagreed with the circuit court’s proportionality conclusion.
  • State v. Hoyle, 242 W. Va. 599, 836 S.E.2d 817 (2019): The touchstone. A recidivist life sentence is constitutional if two of the three felonies involve actual violence, a threat of violence, or substantial victim impact. The court applied Hoyle and found the threshold easily met by Mr. McGann’s offenses.
  • State v. Horton, 248 W. Va. 41, 886 S.E.2d 509 (2023), cert. denied, 143 S. Ct. 2683 (2023): Reiterated that fleeing in a vehicle with reckless indifference under § 61-5-17(f) qualifies as a violent felony for proportionality analysis. Horton also shows that the absence of physical injury does not defeat the violence characterization or the constitutionality of a recidivist life sentence.
  • State ex rel. Appleby v. Recht, 213 W. Va. 503, 583 S.E.2d 800 (2002) (per curiam): Upheld a recidivist life sentence premised on DUI-third even though no one was harmed, undermining the circuit court’s emphasis on lack of injury as a decisive proportionality factor.
  • State v. Housden, 184 W. Va. 171, 399 S.E.2d 882 (1990): Affirmed a recidivist life sentence for burglary despite absence of injury, reinforcing that physical harm is not required for proportionality.
  • Prosecutorial discretion and selective prosecution authorities:
    • State v. Satterfield, 182 W. Va. 365, 387 S.E.2d 832 (1989) and State ex rel. Daye v. McBride, 222 W. Va. 17, 658 S.E.2d 547 (2007): Recognize the breadth of prosecutorial discretion, including whether to file recidivist informations.
    • Oyler v. Boles, 368 U.S. 448 (1962): Conscious selectivity in enforcing a recidivist statute is not itself unconstitutional; equal protection is the guardrail (disallowing selection based on unjustifiable standards).
    • Wayte v. United States, 470 U.S. 598 (1985) and United States v. Armstrong, 517 U.S. 456 (1996): Establish the demanding equal protection standard for selective prosecution: the defendant must show both discriminatory effect and discriminatory purpose through clear evidence.
    • United States v. Smith, 953 F.2d 1060 (7th Cir. 1992) and United States v. Green, 654 F.3d 637 (6th Cir. 2011): Prosecutorial decisions are not subject to substantive due process “arbitrariness” review; the appropriate avenue is equal protection-based selective prosecution.

Legal Reasoning

The court’s analysis proceeded on two tracks—proportionality and prosecutorial discretion— framed by the writ standard in Hoover.

On proportionality, the court acknowledged that although § 61-11-18(d) states a defendant “shall” be sentenced to life upon proper recidivist findings, that mandate is not absolute: recidivist life sentences are subject to Article III, § 5 proportionality review (Lane). The controlling test under Hoyle is whether two of the three felonies involve (1) actual violence, (2) a threat of violence, or (3) substantial victim impact. The court reaffirmed that:

  • Fleeing with reckless indifference under § 61-5-17(f) is a violent felony (Horton). The circuit court itself recognized this at one point, and the Supreme Court agreed.
  • Mr. McGann’s prior convictions—wanton endangerment, possession with intent to distribute cocaine base, and being a prohibited person in possession of a firearm—are qualifying and meet the Hoyle threshold under West Virginia law. The opinion cited authority treating drug distribution as involving a threat of violence or substantial victim impact, and felon-in- possession as involving a threat of violence.

The court rejected the circuit court’s reliance on the absence of injury and on an arresting officer’s silence regarding sentencing. Neither factor is legally relevant to the constitutional proportionality of a recidivist life sentence, as Appleby, Housden, and Horton show. In short, once Hoyle’s threshold is met, and absent any other viable proportionality challenge (none was presented), the sentence is not constitutionally disproportionate.

On prosecutorial discretion, the court addressed the circuit court’s observation that, in seven and a half years, this was the first recidivist filing and that prosecutors often bargain away recidivist exposure. Framing this as “arbitrary and capricious” did not save the sentencing deviation. The Supreme Court explained:

  • “Arbitrary and capricious” can be a substantive due process term in other contexts, but not as a freestanding bar to prosecutorial decisions. Prosecutorial discretion is broad and well-established in West Virginia and federal law; the decision to invoke recidivist enhancements is part of that discretion (Satterfield; Daye).
  • The constitutional check on charging selectivity is equal protection-based selective prosecution. That doctrine requires a criminal defendant to present clear evidence of discriminatory effect and discriminatory purpose (Wayte; Armstrong) on impermissible grounds (e.g., race, religion, protected speech). Mere infrequency of enforcement or plea bargaining practices, without evidence of invidious discrimination, is insufficient (Oyler).

Because the record contained no evidence of discriminatory selection on forbidden grounds, the court held the circuit court erred in declining to impose the mandatory recidivist sentence on an “arbitrary and capricious” rationale.

Finally, the court corrected a misstatement: unlike Article III, § 5 of the West Virginia Constitution, the Eighth Amendment contains no textual proportionality clause; it prohibits cruel and unusual punishments and, in non-capital cases, embodies only a narrow “gross disproportionality” principle. The parties did not rely on the federal standard, and the court decided the case under the state proportionality provision.

Impact

This opinion crystallizes two practical points of statewide importance in West Virginia criminal practice:

  • Sentencing under the recidivist statute is truly mandatory once the statutory predicates are established and the Hoyle proportionality threshold is met. Trial courts cannot impose a lesser sentence based on lack of injury, a law enforcement officer’s sentencing views (or silence), or general impressions about prosecutorial charging patterns.
  • Challenges to a prosecutor’s decision to seek a recidivist enhancement cannot succeed under an “arbitrary and capricious” or free-floating substantive due process theory. The correct—and exceedingly demanding—framework is selective prosecution under equal protection, requiring clear proof of both discriminatory effect and discriminatory purpose tied to an impermissible classification. Absent such proof, prosecutorial selectivity and plea-bargaining choices are constitutionally permissible.

The opinion also fortifies the classification of certain offenses as “violent” or involving a “threat of violence” for Hoyle purposes:

  • Fleeing with reckless indifference remains a violent felony in this context (Horton).
  • Wanton endangerment, felon in possession of a firearm, and possession with intent to distribute cocaine base all count toward the Hoyle threshold based on violence or threat-of- violence/substantial-impact principles recognized in recent West Virginia cases.

Expect prosecutors to take comfort that their charging discretion in recidivist matters is insulated from “arbitrariness” attacks. Defense challenges must be carefully framed under Hoyle proportionality or, if alleging selective enforcement, supported by robust, targeted evidence that satisfies Armstrong/Wayte.

Complex Concepts Simplified

  • Writ of prohibition: An extraordinary remedy used by an appellate court to stop a lower court from acting beyond its legitimate powers. Here, it was used because the State lacked any right to appeal the unlawful sentence and would otherwise be stuck with it.
  • Recidivist statute (W. Va. Code §§ 61-11-18 and 61-11-19): Permits enhancement to life imprisonment when a defendant convicted of a “qualifying” felony has two separate, prior, qualifying felony convictions, with proper sequencing and identity proofs made to a jury.
  • Qualifying offense: Since 2020, the Legislature has enumerated qualifying felonies. Federal or out-of-state felonies count if they contain the same or substantially similar elements to a listed West Virginia qualifying offense.
  • Proportionality (West Virginia): Article III, § 5 requires that penalties be proportioned to the character and degree of the offense. For recidivist life sentences, Hoyle sets a threshold test: at least two of the three felonies must involve violence, threat of violence, or substantial victim impact. If that threshold is not met, a life sentence is disproportionate.
  • Federal “gross disproportionality”: The Eighth Amendment does not contain a textual proportionality clause; it limits only extreme sentences that are grossly disproportionate. West Virginia’s state standard is independently grounded and often more substantive.
  • “Life with mercy”: In West Virginia usage, a life sentence “with mercy” signals eligibility for parole consideration after the statutory minimum period. The State sought a life-with- mercy outcome here.
  • Prosecutorial discretion vs. selective prosecution: Prosecutors have broad authority to decide whom to charge, what to charge, and whether to seek enhancements (including recidivist informations). You cannot defeat that decision by calling it “arbitrary and capricious.” To win a constitutional challenge, a defendant must prove selective prosecution—i.e., that the government targeted him because of an impermissible criterion (like race or protected speech) and that similarly situated others were not prosecuted.

Conclusion

The Supreme Court of Appeals’ decision reaffirms the mandatory character of West Virginia’s recidivist life sentencing scheme and provides a clear roadmap for constitutional review: apply Hoyle’s two-violent-felony threshold. Where that standard is met—as it was for Mr. McGann—recidivist life is not disproportionate even if no one was physically injured in the triggering offense and even if prosecutors have historically filed recidivist informations infrequently.

Equally significant is the court’s clarification that “arbitrary and capricious” allegations about prosecutorial decisions to seek a recidivist enhancement do not state a substantive due process claim. The correct framework is selective prosecution under equal protection—a high bar that requires clear evidence of targeted discrimination on forbidden grounds. Because the record lacked such evidence, the trial court’s refusal to impose the mandated sentence was a clear legal error warranting extraordinary relief.

Key takeaways:

  • Once a recidivist jury properly finds identity and qualifying priors, § 61-11-18(d) requires a life sentence, subject to Article III, § 5 proportionality review.
  • Hoyle governs proportionality: at least two of the three felonies must involve violence, threat of violence, or substantial victim impact; lack of actual injury is not dispositive.
  • Prosecutors’ selective use of the recidivist statute is constitutionally permissible absent a proven equal protection violation through selective prosecution.
  • Trial courts may not substitute policy disagreements about prosecutorial charging or plea-bargaining practices for the constitutional analysis required by Hoyle and Lane.

By granting prohibition and ordering imposition of the recidivist life sentence, the court strengthens doctrinal clarity on proportionality and preserves the integrity of prosecutorial discretion against non-cognizable “arbitrariness” challenges in West Virginia.

Case Details

Comments