concluding that the petitioner’s consecutive sentences of life, with mercy, for kidnapping; one year for domestic battery; five years for wanton endangerment; and not less than one nor more than fifteen years for daytime burglary were not subject to appellate review as they were within statutory limits and the petitioner identified no impermissible factor
How later courts described this case
- concluding that the petitioner’s consecutive sentences of life, with mercy, for kidnapping; one year for domestic battery; five years for wanton endangerment; and not less than one nor more than fifteen years for daytime burglary were not subject to appellate review as they were within statutory limits and the petitioner identified no impermissible factor
- finding that petitioner’s sentence is not subject to appellate review “because the sentence imposed for each conviction is within the statutory limit and [petitioner] has identified no impermissible factor upon which his sentence is based.”
- observing that had defendant “moved for the trial court to re-instruct or re-read the jury on the law of wanton endangerment in light of the jury’s confusion over the law, the court would have had a duty to do so”
- stating that “[t]he facts of this case alone are such that it gives one pause to dissent to the majority opinion”
Written by the judges who cited it.
The opinion
BENJAMIN, Justice,
concurring:
(Filed July 30, 2008)
I agree with the majority opinion but write separately to address the issue raised in the dissenting opinion.
According to the dissent, the majority opinion is inconsistent with the United States Supreme Court’s rulings in Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004). This simply is not true. As this Court explained in State v. Haught, 218 W.Va. 462 , 624 S.E.2d 899 (2005), Ap-prendi and Blakely stand for the principle that any fact other than a prior conviction that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. In contrast, our lddnaping statute does not provide for the enhancement of a defendant’s sentence beyond the statutory maximum based on additional facts found by the trial judge, but rather provides for the possible reduction of a defendant’s sentence based on the trial judge’s additional findings. Because Apprendi and Blakely are not applicable to the instant facts, those cases were properly omitted from the discussion in the majority opinion.
*512 Thus, for the reason stated above, I concur with the majority opinion.