State of West Virginia v. Steven Wayne Funt

FILED

August 30, 2022

EDYTHE NASH GAISER, CLERK

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

SUPREME COURT OF APPEALS OF WEST VIRGINIA

State of West Virginia,

Plaintiff Below, Respondent

vs.) No. 21-0676 (Morgan County CC-33-2016-F-6)

Steven W. Funt,

Defendant Below, Petitioner

MEMORANDUM DECISION

Petitioner Steven W. Funt, a self-represented litigant, appeals the Circuit Court of Morgan

County’s July 23, 2021, order denying his motion for correction of sentence filed pursuant to Rule

35(a) of the West Virginia Rules of Criminal Procedure. Respondent State of West Virginia, by

counsel Patrick Morrisey and William E. Longwell, filed a response in support of the circuit court’s

order to which petitioner submitted a reply.

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 is appropriate under Rule 21 of the Rules of Appellate Procedure.

On January 5, 2016, the grand jury indicted petitioner on two felony counts of breaking

and entering; one count of misdemeanor petit larceny; one count of misdemeanor entering without

breaking of automobile; one misdemeanor count of destruction of property; one count of felony

grand larceny; and two counts of misdemeanor possession of a controlled substance. Petitioner’s

criminal trial began on August 3, 2016, and the jury found him guilty of one count of the felony

offense breaking and entering and one count of petit larceny on August 4, 2016. Petitioner was

acquitted on the remaining charges. The State then filed a recidivist information, which petitioner’s

counsel moved to dismiss based upon the assertion that a life sentence would amount to cruel and

unusual punishment. Petitioner’s motion to dismiss was denied, and the recidivist action proceeded

to trial on October 6, 2016. At the conclusion of the recidivist trial, petitioner was found to be the

same person previously convicted of the felony offenses of unlawful assault/escape in Morgan

County Case No. 97-F-41; attempted possession of a controlled substance with intent to distribute

in Morgan County Case No. 03-F-44; and grand larceny in Morgan County Case No. 06-F-35.

Thereafter, petitioner’s counsel filed a renewed motion to dismiss the recidivist information, which

was denied by the circuit court. The court sentenced petitioner to life in prison with eligibility for

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parole after fifteen years by order entered on November 15, 2016. Petitioner appealed his

conviction to this Court, and his conviction was affirmed by memorandum decision in State v.

Funt, No. 16-1169, 2017 WL 4772889 (W. Va. Oct. 23, 2017) (memorandum decision) (“Funt I”).

Petitioner filed a petition for a writ of habeas corpus before the circuit court, asserting

ineffective assistance of counsel, violations of his Sixth Amendment rights, improper comments

by the trial judge, improper comments by the prosecutor, and disproportionality of his sentence.

In a lengthy, detailed order denying petitioner’s petition for a writ of habeas corpus, the circuit

court addressed each of these allegations and found them to be without merit. The circuit court

denied petitioner’s petition for a writ of habeas corpus by order entered on January 26, 2021.

Petitioner appealed that denial to this Court, and this Court affirmed that denial by memorandum

decision in Funt v. Ames, No. 21-0157, 2022 WL 1164979 (W. Va. Apr. 20, 2022) (memorandum

decision) (“Funt II”).

While petitioner’s appeal of the denial of his habeas petition was pending before this Court,

petitioner, acting as a self-represented litigant, filed a Rule 35(a) motion to set aside his recidivist

sentence on June 7, 2021, more than four years after the imposition of his November 15, 2016,

sentence. In that motion, petitioner requested that he be resentenced upon his conviction for

breaking and entering to a term of imprisonment of one to ten years in a state correctional facility

without enhancement for having been previously convicted and sentenced for felony offenses.

According to the circuit court’s July 23, 2021, order denying petitioner’s Rule 35(a) motion,

petitioner essentially made two arguments: (1) the sentencing judge was confused about

petitioner’s breaking and entering offense because, during oral argument regarding West

Virginia’s recidivist jurisprudence, the court referred to “third strike” cases involving third offense

shoplifting, DUI, and fleeing with reckless disregard and (2) that the amendments to West

Virginia’s recidivist statute enacted after petitioner was sentenced were procedural, not

substantive, and should be retroactively applied in petitioner’s case. In addressing petitioner’s

arguments, the circuit court noted that it had carefully considered petitioner’s legal arguments, this

Court’s 2017 memorandum decision in petitioner’s direct appeal, and applicable caselaw.

With regard to the sentencing judge’s alleged confusion regarding petitioner’s triggering

conviction, the circuit court found that the transcripts of counsels’ oral arguments show that the

sentencing judge fully engaged in the issue of the legality of imposing a life sentence where there

has been a third strike, even if that third strike was for a breaking and entering conviction. The

court and petitioner’s counsel properly discussed caselaw and its application to petitioner’s case.

In addressing the Rule 35(a) motion, the court concluded that there is no evidence whatsoever to

suggest that the sentencing judge was somehow confused by the issues at hand and quoted this

Court’s 2017 memorandum decision addressing this issue. The circuit court stated that it could not

“overrule” this Court’s memorandum decision in Funt I.

In addressing petitioner’s second argument, regarding the retroactive application of a

change in statutory law, the circuit court set forth the recidivist statute before and after the 2020

amendment, noting that petitioner correctly argued that under the 2020 version the offense of

breaking and entering was not included in the list of qualifying offenses. It went on to find that it

was a fair inference that “the omission of breaking and entering from the list of qualifying offenses

indicates that breaking and entering is not a qualifying offense.[] But merely establishing that

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breaking and entering is no longer a qualifying offense does not resolve whether the 2020 revisions

to the recidivist statute are retroactive.” The court further determined that

[t]he amended recidivist statute simply reflects the Legislature’s judgment as to

which crimes are qualifying offenses. That such judgment may change from time

to time militates in favor of looking to the Legislature to state whether such change

is intended to have retroactive application. The Legislature is presumed to know

the law, and the law of West Virginia requires an express statement of retroactivity.

Here, given the Legislature’s silence on the issue of retroactivity, the argument for

finality is even stronger than Edwards v. Vannoy[, 141 S.Ct. 1547, 1554-55 (2021).]

The circuit court, therefore, denied petitioner’s Rule 35(a) motion, and petitioner appeals from that

order.

In reviewing the findings of fact and conclusions of law of a circuit court

concerning an order on a motion made under Rule 35 of the West Virginia Rules

of Criminal Procedure, we apply a three-pronged standard of review. We review

the decision on the Rule 35 motion under an abuse of discretion standard; the

underlying facts are reviewed under a clearly erroneous standard; and questions of

law and interpretations of statutes and rules are subject to a de novo review.

Syl. Pt. 1, State v. Head, 198 W. Va. 298, 480 S.E.2d 507 (1996).

On appeal, petitioner sets forth two assignments of error, though the same analysis is

generally applicable to both: 1) the circuit court incorrectly applied the law and 2) the circuit court

should have retroactively applied the 2020 amendments to the recidivist statute. As this Court set

forth in Funt II,

the amendments to West Virginia § 61-11-18 are inapplicable to petitioner, and the

circuit court did not abuse its discretion or otherwise err in finding that petitioner’s

proportionality challenge to his recidivist life sentence has been previously, fully,

and finally adjudicated so it cannot be relitigated now. While petitioner is correct

that the crime for which he was convicted, breaking and entering, as defined by

West Virginia Code § 61-3-12, is not included in the list of qualifying crimes in the

amended recidivist statute, there is no support for petitioner’s contention that it

should be retroactively applied. See Martinez, 239 W. Va. at 613, 803 S.E.2d at

583, Syl. Pt. 2 (citations omitted) (“The presumption is that a statute is intended to

operate prospectively, and not retrospectively, unless it appears, by clear, strong

and imperative words or by necessary implication, that the Legislature intended to

give the statute retroactive force and effect.”). Respondent asserts that the

amendment to the recidivist statute contains no such language. Further, this Court

has recognized the inapplicability of the amendments to the recidivist statute in

recent proportionality challenges where the sentences predated the amendments.

See State v. Plante, 19-0109, 2020 WL 6806375, at *1 n.1 (W. Va. Nov. 19,

2020)(memorandum decision); State v. Ingram, No. 19-0016, 2020 WL 6798906

at *1, n.2 (W. Va. Nov. 19, 2020)(memorandum decision). Therefore, we find that

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petitioner is not entitled to relief on this ground.

Funt II, at *4.

In addition, as we stated in Funt I,

Contrary to petitioner’s argument, the record on appeal indicates that the circuit

court explicitly considered the proportionality of petitioner’s lifetime recidivist

sentence after petitioner filed his recidivist pretrial motions. The court heard the

parties’ arguments on the issue, requested additional briefing, and ultimately denied

petitioner’s pre-trial motion. The circuit court noted on the record that this Court

“upheld the imposition of the life recidivism after three felonies on property

crimes.” Following petitioner’s current recidivist conviction, he renewed his

previous motion at a posttrial hearing and the circuit court again denied petitioner’s

motion on the record and by order entered on November 22, 2016. . . . This Court

has articulated a test for application of the life recidivist statute:

The appropriateness of a life recidivist sentence under our

constitutional proportionality provision found in Article III, Section

5, will be analyzed as follows: We give initial emphasis to the nature

of the final offense which triggers the recidivist life sentence,

although consideration is also given to the other underlying

convictions. The primary analysis of these offenses is to determine

if they involve actual or threatened violence to the person since

crimes of this nature have traditionally carried the more serious

penalties and therefore justify application of the recidivist statute.”

Syl. Pt. 7, State v. Beck, 167 W.Va. 830, 286 S.E.2d 234 (1981). Petitioner’s most

recent offense, and the one triggering the recidivist life sentence, was breaking and

entering. He was previously convicted twice for grand larceny. Both of these crimes

are crimes that justify the application of the recidivist statute. Further, as to the

underlying offenses involved in this case, we have already upheld the imposition

of a life sentence under the recidivist statute in cases where the underlying felonies

were grand larceny and breaking and entering. See State v. Oxier, 179 W.Va. 431,

369 S.E.2d 866 (1988) (imposition of a life sentence upheld where defendant's most

recent conviction was for breaking and entering and the underlying felonies

consisted of two breaking and entering convictions and a grand larceny

conviction); see also [State v.] Vance, 164 W.Va. [216,] 223-225, 262 S.E.2d

[423,] 428 [1980]. Therefore, we find that petitioner’s most recent convictions for

breaking and entering and grand larceny were crimes that involved the threat of

harm or violence. Thus, the circuit court’s imposition of a recidivist life sentence

pursuant to West Virginia Code § 61-11-18 did not violate the proportionality

doctrine as prohibited by the West Virginia Constitution.

Funt I, at *3.

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We find no reason to disturb our earlier conclusions on these issues, and the circuit court

did not err in denying petitioner relief on these grounds. 1

Affirmed.

ISSUED: August 30, 2022

CONCURRED IN BY:

Chief Justice John A. Hutchison

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice William R. Wooton

Justice Haley C. Bunn

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We further find petitioner’s reliance upon United States v. Lancaster, 997 F.3d 171, 176

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(4 Cir. 2021), unavailing. While petitioner correctly quotes a portion of Lancaster, petitioner

ignores the language immediately before and after that quote. The Lancaster Court declined to

apply the career-offender enhancement under the federal sentencing guidelines based upon the

following finding: “with no basis to apply the career-offender enhancement or to apply relevant

drug quantities — as those were never calculated — the district court was left, when considering

Lancaster’s First Step Act motion, with gaps that needed to be filled to calculate an appropriate

Guidelines range.” Id. at 176.

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