STATE v. FULLER

No. 16-0153.

STATE OF WEST VIRGINIA, Respondent, v. BELINDA ANN FULLER, Petitioner.

Supreme Court of Appeals of West Virginia.

Filed: May 17, 2017.


Attorney(s) appearing for the Case

Russell S. Cook, Esq. , Cabell Co. Public Defender Office, Huntington, West Virginia, Counsel for the Petitioner.

Patrick Morrisey, Esq. , Attorney General, Shannon Frederick Kiser, Esq. , Assistant Attorney General, Josiah M. Kollmeyer , Rule 10 Student Attorney, Charleston, West Virginia, Counsel for the Respondent.

JUSTICE WALKER dissents and reserves the right to file a dissenting Opinion.


Justice KETCHUM.

Petitioner Belinda Ann Fuller ("Defendant Fuller") appeals an order of the Circuit Court of Cabell County denying her motion to dismiss an indictment charging her with a felony crime—third offense of soliciting an act of prostitution in violation of W.Va. Code § 61-8-5(b) [1943]. Under W.Va. Code § 61-8-5(b), it is a misdemeanor crime to be convicted of the first or second offense of soliciting, inducing, enticing, procuring, aiding, abetting, or participating in an act of prostitution. Additionally, W.Va. Code § 61-8-5(b) provides that the third or subsequent violation of the statute is a felony offense (hereinafter "third offense") that only applies "to the pimp, panderer, solicitor, operator or any person benefiting financially or otherwise from the earnings of a prostitute."

Defendant Fuller argued that the third offense provision of W.Va. Code § 61-8-5(b) does not apply to an alleged prostitute; rather, it is intended to apply only to "third parties who derive a financial benefit from the earnings of an alleged prostitute." The circuit court rejected this argument, finding that a prostitute who benefits financially from her own act of prostitution is included in the category of offenders who may be charged with a third offense under W.Va. Code § 61-8-5(b). Following entry of the circuit court's order, Defendant Fuller filed the instant appeal.

After thorough review, we find that the third offense provision contained in W.Va. Code § 61-8-5(b) is ambiguous. Due to this ambiguity, the rule of lenity applies, requiring this Court to strictly construe W.Va. Code § 61-8-5(b) against the State and in favor of Defendant Fuller. We echo Justice Cleckley's well-reasoned statement explaining why this Court applies the rule of lenity when faced with an ambiguous criminal statute:

We find this is a reasonable course to take when such substantial interests are at stake. The judiciary should be hesitant to impose such restrictions when it is not clear this is the Legislature's unequivocal desire.

State v. Sears, 196 W.Va. 71, 82, n.21, 468 S.E.2d 324, 335, n.21 (1996) (emphasis added).

Because the third offense provision contained in W.Va. Code § 61-8-5(b) is ambiguous, we reverse the circuit court's February 3, 2016, order denying Defendant Fuller's motion to dismiss the indictment charging her with a felony offense.1

I.

FACTUAL AND PROCEDURAL BACKGROUND

The facts of this matter are undisputed. On February 4, 2015, Defendant Fuller got into a vehicle with an undercover police officer and agreed to perform an act of prostitution in exchange for twenty dollars. The police officer arrested Defendant Fuller. Prior to her February 2015 arrest, Defendant Fuller had twice been convicted of soliciting for prostitution.2

On May 4, 2015, a grand jury indicted Defendant Fuller on a single felony count of "3rd Offense Solicitation of an Act of Prostitution" in violation of W.Va. Code § 61-8-5(b). The indictment provides that Defendant Fuller "unlawfully and feloniously . . . offer[ed] to perform an act of prostitution [on the undercover police officer], namely oral sex for the payment of Twenty Dollars[.]"

Counsel for Defendant Fuller filed a motion to dismiss the indictment, arguing that she did not fall within the category of persons who may be charged with a third offense under W.Va. Code § 61-8-5(b). Instead, counsel argued that the third offense provision "really applies to owners of houses, pimps, those people who are really deriving benefits directly from what prostitutes do." The circuit court held a hearing on this motion and rejected Defendant Fuller's argument, concluding: "I think the clear meaning of it [the third offense provision] is the benefits financially [language] would apply to the individual performing the acts for which she would have been paid, unless there is evidence that she was not financially benefiting from it."3 Following entry of the circuit court's order, Defendant Fuller filed the instant appeal.

II.

STANDARD OF REVIEW

This appeal involves an interpretation of the third offense provision contained in W.Va. Code § 61-8-5(b). Thus, our standard of review is set forth in Syllabus Point 1 of Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995): "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." With our standard of review in mind, we turn to the parties' arguments.

III.

ANALYSIS

The issue is whether Defendant Fuller may be charged with a third offense under W.Va. Code § 61-8-5(b). Our analysis begins with an examination of W.Va. Code § 61-8-5(b). It provides:

Any person who shall engage in prostitution, lewdness, or assignation, or who shall solicit, induce, entice, or procure another to commit an act of prostitution, lewdness, or assignation; or who shall reside in, enter, or remain in any house, place, building, hotel, tourist camp, or other structure, or enter or remain in any vehicle, trailer, or other conveyance for the purpose of prostitution, lewdness, or assignation; or who shall aid, abet, or participate in the doing of any of the acts herein prohibited, shall, upon conviction for the first offense under this section, be punished by imprisonment in the county jail for a period of not less than sixty days nor more than six months, and by a fine of not less than fifty dollars and not to exceed one hundred dollars; and upon conviction for the second offense under this section, be punished by imprisonment in the county jail for a period of not less than six months nor more than one year, and by a fine of not less than one hundred dollars and not to exceed two hundred fifty dollars, and upon conviction for any subsequent offense under this section shall be punished by imprisonment in the penitentiary for not less than one year nor more than three years. The subsequent offense provision shall apply only to the pimp, panderer, solicitor, operator or any person benefiting financially or otherwise from the earnings of a prostitute.

(Emphasis added).

In examining whether Defendant Fuller may be charged with a felony third offense under W.Va. Code § 61-8-5(b), we begin with a review of our rules of statutory construction. This Court has held that in deciding the meaning of a statutory provision, "[w]e look first to the statute's language. If the text, given its plain meaning, answers the interpretive question, the language must prevail and further inquiry is foreclosed." Appalachian Power Co. v. State Tax Dep't of West Virginia, 195 W.Va. 573, 587, 466 S.E.2d 424, 438 (1995); see also Syllabus Point 2, Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384 (1970) ("Where the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation."); and Syllabus Point 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951) ("A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.").

Additionally, this Court has held that "[a] statute is open to construction only where the language used requires interpretation because of ambiguity which renders it susceptible of two or more constructions or of such doubtful or obscure meaning that reasonable minds might be uncertain or disagree as to its meaning." Sizemore v. State Farm Gen. Ins. Co., 202 W.Va. 591, 596, 505 S.E.2d 654, 659 (1998) (internal quotations and citation omitted). With these rules of statutory construction in mind, we turn to W.Va. Code § 61-8-5(b).

West Virginia Code § 61-8-5(b) sets forth three categories of offenses and corresponding penalties for those offenses. The first two offenses in W.Va. Code § 61-8-5(b) are misdemeanors. It is undisputed that a prostitute who offers to commit an act of prostitution may be charged pursuant to the first and second offenses set forth in W.Va. Code § 61-8-5(b). The first two offenses set forth in W.Va. Code § 61-8-5(b) expressly apply to:

Any person who shall engage in prostitution, lewdness, or assignation, or who shall solicit, induce, entice, or procure another to commit an act of prostitution, lewdness, or assignation; or who shall reside in, enter, or remain in any house, place, building, hotel, tourist camp, or other structure, or enter or remain in any vehicle, trailer, or other conveyance for the purpose of prostitution, lewdness, or assignation; or who shall aid, abet, or participate in the doing of any of the acts herein prohibited[.]

Clearly, the language "any person who shall engage in prostitution. . . or participate in the doing of any of the acts herein prohibited" applies to a prostitute.

By contrast, the third offense provision of W.Va. Code § 61-8-5(b) is a felony offense. The third offense provides that it "shall only apply to the pimp, panderer, solicitor, operator or any person benefiting financially or otherwise from the earnings of a prostitute." (Emphasis added).

Defendant Fuller argues that the third offense provision does not apply to an alleged prostitute; rather, it only applies to "third parties who derive a financial benefit from the earnings of an alleged prostitute." Defendant Fuller asserts that unlike the first two offenses contained in the statute that clearly and unequivocally apply to a prostitute, the third offense provision does not contain any language stating that it expressly applies to a prostitute. Instead, the third offense provision only applies to those third parties (pimps, panderers, solicitors, and operators) who benefit from the earnings of a prostitute. Had the Legislature intended a prostitute to be subject to the third offense provision, counsel for Defendant Fuller argues, it could have added three words to the end of the statute ". . . including a prostitute." Finally, Defendant Fuller asserts that the first two offenses set forth in the statute demonstrate that when the Legislature intended to subject a prostitute to liability under this statute, it did so expressly, i.e. "any person who shall engage in prostitution."

The State asserts that the third offense provision "states that any person receiving a financial benefit from a prostitute's earnings may be sentenced under the subsequent offense provision." According to the State, "any person" who benefits financially from the earnings of a prostitute means just that—any person. Thus, the State argues that the third offense provision is not ambiguous and that a prostitute who financially benefits from her own act of prostitution may be charged pursuant to the third offense provision.

We find that the third offense provision in W.Va. Code § 61-8-5(b) is reasonably susceptible to differing constructions and that "reasonable minds might be uncertain or disagree as to its intended meaning." Sizemore, 202 W.Va. at 596, 505 S.E.2d at 659. Therefore, we find that the third offense provision contained in W.Va. Code § 61-8-5(b) is ambiguous.

When faced with an ambiguous statute, this Court has observed "[a] statute that is ambiguous must be construed before it can be applied." Syllabus Point 1, Farley v. Buckalew, 186 W.Va. 693, 414 S.E.2d 454 (1992). "The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." Syllabus Point 1, Smith v. State Workmen's Comp. Comm'r, 159 W.Va. 108, 219 S.E.2d 361 (1975). "A statute is ambiguous when the statute's language connotes doubtfulness, doubleness of meaning or indistinctness or uncertainty of an expression[.]" United Services Auto Ass'n v. Lucas, 233 W.Va. 68, 73, 754 S.E.2d 754, 759 (2014) (internal citation and quotation omitted). Similarly, this Court has held that "the initial step in such interpretative inquiry [of a statute] is to ascertain legislative intent." Syllabus Point 1, in part, Ohio County Comm'n v. Manchin, 171 W.Va. 552, 301 S.E.2d 183 (1983). Also, "[w]hen a statute's language is ambiguous, a court often must venture into extratextual territory in order to distill an appropriate construction. Absent explicatory legislative history for an ambiguous statute . . . this Court is obligated to consider the . . . overarching design of the statute." State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 777, 461 S.E.2d 516, 523 (1995).

Moreover, "[i]n construing an ambiguous criminal statute, the rule of lenity applies which requires that penal statutes must be strictly construed against the State and in favor of the defendant." Syllabus Point 5, State ex rel. Morgan v. Trent, 195 W.Va. 257, 465 S.E.2d 257 (1995). The rule of lenity "serves to ensure both that there is fair warning of the boundaries of criminal conduct and that legislatures, not courts, define criminal liability." Crandon v. United States, 494 U.S. 152, 158, (1990). In Syllabus Point 1 of State v. Flinn, 158 W.Va. 111, 208 S.E.2d 538 (1974), we held that "[a] criminal statute must be set out with sufficient definiteness to give a person of ordinary intelligence fair notice that his contemplated conduct is prohibited by statute and to provide adequate standards for adjudication."

In ascertaining the legislative intent behind W.Va. Code § 61-8-5(b), we find that the legislative history of the statute's adoption in 1943 does not address the specific meaning or purpose of the third offense provision. Prior to 1943, W.Va. Code § 61-8-5 did not expressly punish a woman for engaging in prostitution. Under the version of the statute that existed prior to 1943, a woman could be prosecuted for prostitution only if she engaged in prostitution in a "house of ill fame." This can be seen in the case of State v. Pyles, 86 W.Va. 636, 104 S.E. 100 (1920).

The defendant in Pyles appealed following her conviction of "guilt of keeping and maintaining a certain house of ill fame." Id. On appeal, the defendant argued that although the evidence demonstrated that she may have engaged in prostitution, her conviction was invalid because she did not engage in prostitution in a house of ill fame as required by the statute. The Court in Pyles summarized the evidence as follows:

The accused permanently resided in the house alone, but, according to the evidence, men singly there visited her so often, in such number, and under such circumstances as, aided by her own conduct, tended very strongly to prove that she there indulged in acts of prostitution with them. But there is no proof, nor sufficiently probative evidence, that any other woman resorted to the house for purposes of prostitution.

Pyles, 86 W.Va. at 636-37, 104 S.E. at 100. The Court held that the evidence was insufficient to sustain the conviction. The following rationale was provided:

Our statute does not define a house of ill fame, wherefore it is necessary to go to the common law for its definition. Under the common law, a house kept by one woman, who there indulges in prostitution with numerous men, and not resorted to by any other lewd woman for the like purpose, is not a house of ill fame. . . . [T]he reason for the holding is that the house must possess an element of danger to the public peace, and it does not exist unless there is a tendency to bring together crowds or assemblages of dissolute, debauched, and quarrelsome persons. The common-law penalty had, for its principal purpose, preservation of the peace, not maintenance of morality. Morality was encouraged and vindicated by the spiritual tribunals, and the common law ordinarily left an unmixed question of morality or offense against morality within their cognizance. * * * As the evidence wholly fails to make out a case, in view of this legal proposition, the judgment will have to be reversed[.]

86 W.Va. at 637-38, 104 S.E. at 100 (international citations omitted).

The Court's decision in Pyles demonstrates that prior to 1943 the Legislature did not seek to punish a woman for engaging in prostitution per se. Instead, the Legislature sought to punish engaging in prostitution in a house of ill fame. This historical background on the statute as it existed prior to 1943 may explain the ambiguity in the fact that W.Va. Code § 61-8-5(b) only imposes misdemeanor, rather than felony, offenses against a person engaging in prostitution.

Compounding the ambiguity of W.Va. Code § 61-8-5(b) is the fact that the Legislature enacted separate statutes for punishing panderers and pimps. The pandering offense is set forth in W.Va. Code § 61-8-7 [1986]. It provides, in part:

Any person who shall procure an inmate for a house of prostitution, or who, by promises, threats, violence, or by any device or scheme, shall cause, induce, persuade or encourage a person to become an inmate of a house of prostitution, or shall procure a place as inmate in a house of prostitution for a person . . . shall be guilty of pandering, and, upon a first conviction for an offense under this section, shall be punished by imprisonment in the county jail for a period of not less than six months nor more than one year . . ., and upon conviction for any subsequent offense . . . shall be punished by imprisonment in the penitentiary for a period of not less than one nor more than five years.

The pimping offense is set forth in W.Va. Code § 61-8-8 [1986]. It provides, in part:

Any person who, knowing another person to be a prostitute, shall live or derive support or maintenance, in whole or in part, from the earnings or proceeds of the prostitution of such prostitute . . . shall be guilty of pimping, and, upon the first conviction for such offense, shall be punished by imprisonment in the county jail for a period of not less than six months nor more than one year, and by a fine of not less than one hundred nor more than five hundred dollars; and, upon a conviction for any subsequent offense hereunder, shall be punished by imprisonment in the penitentiary for a period of not less than one nor more than three years.

Even though the Legislature enacted these separate statutes for panderers and pimps, under W.Va. Code § 61-8-5(b) panderers and pimps can also be punished when a prostitute engages in prostitution after a second conviction. This discrepancy does not make sense, but that is the effect of a literal application of W.Va. Code § 61-8-5(b), W.Va. Code § 61-8-7, and W.Va. Code § 61-8-8.

We next examine the overarching design of W.Va. Code § 61-8-5(b). The statute contains three offenses and corresponding penalties for those offenses. The first two offenses in the statute are misdemeanors which are expressly applicable to a prostitute. West Virginia Code § 61-8-5(b) makes it abundantly clear that "any person who shall engage in prostitution" may be charged pursuant to these first two misdemeanor offenses. The third offense provision in W.Va. Code § 61-8-5(b) is a felony offense and is restricted "only to the pimp, panderer, solicitor, operator or any person benefiting financially or otherwise from the earnings of a prostitute." (Emphasis added).

Reading the second half of the third offense provision in isolation ("or any person benefiting financially or otherwise from the earnings of a prostitute") supports the State's argument that the phrase "any person" includes a prostitute financially benefiting from her own act of prostitution. However, unlike the first two misdemeanor offenses contained in the statute, the third offense provision does not state that it applies to "any person who shall engage in prostitution." Instead, the clear focus of the third offense provision is "only" on those third parties who financially benefit from the earnings of a prostitute, including a pimp, panderer, solicitor, and operator. Defendant Fuller makes a compelling argument that the Legislature clearly and unequivocally included a prostitute under the first two misdemeanor offenses contained in the statute, but did not explicitly include a prostitute under the felony third offense provision. Because the Legislature did not clearly and unequivocally include a prostitute under the felony third offense provision, Defendant Fuller asserts that W.Va. Code § 61-8-5(b) does not "set out with sufficient definiteness to give a person of ordinary intelligence fair notice that [her] contemplated conduct is prohibited by statute[.]" Flinn, 158 W.Va. 111, 208 S.E.2d 538.

Based on our review, we conclude that the third offense provision is susceptible to differing constructions and that reasonable minds might disagree as to its intended meaning. In light of this conclusion, we apply the rule of lenity which requires that penal statutes must be strictly construed against the State and in favor of the defendant. Syllabus Point 5, State ex rel. Morgan v. Trent, 195 W.Va. 257, 465 S.E.2d 257. Construing the statute in favor of Defendant Fuller, we find that the first two misdemeanor offenses set forth in W.Va. Code § 61-8-5(b) expressly apply to a prostitute. However, the felony third offense provision does not expressly apply to a prostitute; rather, it expressly applies to third parties benefiting financially from the earnings of a prostitute, i.e. a pimp, panderer, solicitor, or operator. Thus, we find that the third offense provision of W.Va. Code § 61-8-5(b) contains an ambiguity and pursuant to the rule of lenity, we resolve this ambiguity in Defendant Fuller's favor.

Based on the foregoing, we hold that under the first and second offenses contained in W.Va. Code § 61-8-5(b), it is a misdemeanor crime for any person to engage in an act of prostitution. The third or subsequent felony offense provision contained in W.Va. Code § 61-8-5(b) does not apply to a person who engages in an act of prostitution. Instead, the third or subsequent felony offense provision only applies to third parties who financially benefit from the earnings of a prostitute, such as a pimp, panderer, solicitor, or operator. Applying this holding to the present case, we find that Defendant Fuller's alleged conduct does not subject her to culpability pursuant to the third offense provision of W.Va. Code § 61-8-5(b). Thus, the circuit court erred by denying her motion to dismiss the indictment.

IV.

CONCLUSION

The circuit court's February 3, 2016, order is reversed. We remand this case to the circuit court for entry of an order dismissing the indictment against Defendant Fuller.

Reversed and Remanded.

LOUGHRY, Chief Justice, dissenting, joined by Justice Walker:

Ignoring clear statutory language and engaging in a convoluted analysis, the majority of this Court has gone out of its way to manufacture a non-existent ambiguity in the prostitution statute, West Virginia Code § 61-8-5(b) (2014). Moreover, even under the majority's misguided analysis, there is no justification for an outright dismissal of the petitioner's indictment. Because the majority has imprudently overstepped its judicial authority and reversed a valid conviction, I am compelled to dissent.

A plain reading of West Virginia Code § 61-8-5 reveals that the statute was designed to criminalize the conduct of all persons engaged in the prohibited enterprise of prostitution. Subsection (a) applies to persons who establish, maintain, or operate a house or other place for the purpose of prostitution. Id. Subsection (b) criminalizes the conduct of prostitution:

Any person who shall engage in prostitution, lewdness, or assignation, or who shall solicit, induce, entice, or procure another to commit an act of prostitution, lewdness, or assignation; or who shall reside in, enter, or remain in any house, place, building, hotel, tourist camp, or other structure, or enter or remain in any vehicle, trailer, or other conveyance for the purpose of prostitution, lewdness, or assignation; or who shall aid, abet, or participate in the doing of any of the acts herein prohibited, shall, upon conviction . . . be punished[.]

W.Va. Code § 61-8-5(b), in part. Thus, subsection (b) applies whether the misconduct is committed by a person who sells a sex act, purchases or "procures" a sex act, solicits an act of prostitution, induces or arranges for another person to commit prostitution, or aids and abets prostitution. Id. The Legislature then mandated that persons with multiple convictions for acts committed in violation of this statute are to receive increased penalties:

[The person] shall, upon conviction for the first offense under this section, be punished by imprisonment in the county jail for a period of not less than sixty days nor more than six months, and by a fine of not less than fifty dollars and not to exceed one hundred dollars; and upon conviction for the second offense under this section, be punished by imprisonment in the county jail for a period of not less than six months nor more than one year, and by a fine of not less than one hundred dollars and not to exceed two hundred fifty dollars, and upon conviction for any subsequent offense under this section shall be punished by imprisonment in the penitentiary for not less than one year nor more than three years. The subsequent offense provision shall apply only to the pimp, panderer, solicitor, operator or any person benefit[t]ing financially or otherwise from the earnings of a prostitute.

Id. (emphasis added).

The penalty provisions are patent and wholly lacking in ambiguity. After a second conviction, a "conviction for any subsequent offense under this section shall be punished" with the increased penalty of one to three years in prison when committed by "any person benefit[t]ing financially or otherwise from the earnings of a prostitute." Id. Because the petitioner is a person who benefits financially from her own earnings as a prostitute, and because this is her third instance of being convicted for an offense prohibited by West Virginia Code § 61-8-5(b), a straightforward application of the law requires this Court to affirm her conviction and sentence. Contrary to the petitioner's argument, there is nothing in this statute to limit the subsequent offense enhancement only to "third parties" who derive a financial benefit. Rather, the plain language in subsection (b) applies the penalty enhancement to "any person" deriving a financial or other benefit from the earnings of prostitution. There is no ambiguity or double meaning here. "Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation." Syl. Pt. 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968); see also Syl. Pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951) ("A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect."). Because the statutory language is not ambiguous, the rule of lenity does not apply. See Syl. Pt. 5, State ex rel. Morgan v. Trent, 195 W.Va. 257, 465 S.E.2d 257 (1995) (holding that rule of lenity applies when courts construe ambiguous criminal statutes).

To find that the subsequent offense provision is subject to different interpretations, the majority focuses upon the absence of the word "prostitute" in the list "pimp, panderer, solicitor, and operator" in the last sentence of subsection (b). This skewed analysis blatantly ignores two key provisions in the law. First, the statute directs that a person convicted of "any subsequent offense under this section" is subject to the enhancement, and prostitution is an offense expressly set forth in this section of the Code. See W.Va. Code § 61-8-5(b) (emphasis added). Second, immediately after specifying pimp, panderer, solicitor, and operator, the Legislature included "or any person benefit[t]ing financially or otherwise from the earnings of a prostitute" within the purview of the penalty enhancement. Id. (emphasis added). It was unnecessary for the Legislature to repeat the word "prostitute" in the last sentence of subsection (b) because a person committing prostitution necessarily will benefit financially or otherwise from his or her own earnings. This Court is not at liberty to selectively ignore words in a statute under the guise of statutory construction. "[S]ignificance and effect must, if possible, be given to every section, clause, word or part of the statute." Syl. Pt. 2, in part, State v. McDaniel, 238 W.Va. 61, 792 S.E.2d 72 (2016) (citation omitted); see also Jackson v. Belcher, 232 W.Va. 513, 518, 753 S.E.2d 11, 16 (2013) (recognizing that "to fulfill a statute's legislative intent, it is necessary to give effect to every word and part of a statute"); Syl. Pt. 11, in part, Brooke B. v. Ray, 230 W.Va. 355, 738 S.E.2d 21 (2013) (stating that courts may not "eliminate through judicial interpretation words that were purposely included").

Moreover, the subsequent offense provision unquestionably applies to "solicitors" of prostitution; the word "solicitor" is expressly delineated in the last sentence of subsection (b). See W.Va. Code § 61-8-5(b). Consequently, if we were to follow the majority's tortured reasoning to its logical conclusion, this provision would enhance the sentences of people who merely solicit acts of prostitution but, paradoxically, would not enhance the sentences of people who actually consummate acts of prostitution. It simply is not reasonable to conclude that the Legislature intended such an absurd distinction. "[T]he duty of this Court [is] to avoid whenever possible a construction of a statute which leads to absurd, inconsistent, unjust or unreasonable results." State v. Kerns, 183 W.Va. 130, 135, 394 S.E.2d 532, 537 (1990); see also, Syl. Pt. 2, Newhart v. Pennybacker, 120 W.Va. 774, 200 S.E. 350 (1938) ("Where a particular construction of a statute would result in an absurdity, some other reasonable construction, which will not produce such absurdity, will be made."). Indeed, the petitioner was convicted of third offense "soliciting an act of prostitution"-not third offense "committing prostitution."1 The ambiguity fabricated by the majority regarding the application of the subsequent offense enhancement to "prostitutes" should be immaterial to this conviction. Instead, the majority chooses to shield the petitioner from punishment for being a convicted solicitor because she was also the prostitute in the proffered transaction. As the State argues in its brief, this "amounts to making actual prostitution a mitigating factor." I simply cannot concur in such a preposterous reading of the statute.

A plain reading of West Virginia Code § 61-8-5(b) indicates that the Legislature intended for the subsequent offense enhancement to apply to all persons who benefit financially or otherwise2 from the earnings of prostitution, while this enhancement is inapplicable to persons who do not benefit financially or otherwise from those earnings.3 This was a policy decision the Legislature made more than seven decades ago. When enacting additional laws in 1986 pertaining to the offenses of pandering and pimping,4 the Legislature did not modify its policy regarding the subsequent offense enhancement. "The Legislature has power to create and define crimes and fix their punishment[.]" Syl. Pt. 2, in part, State v. Woodward, 68 W.Va. 66, 69 S.E. 385 (1910). This Court should not second-guess the Legislature on matters of public policy. See Syl. Pt. 2, in part, Huffman v. Goals Coal Co., 223 W.Va. 724, 679 S.E.2d 323 (2009) ("This Court does not sit as a superlegislature, commissioned to pass upon the political, social, economic or scientific merits of statutes pertaining to proper subjects of legislation.").

In a circuitous attempt to support its tortured declaration of ambiguity, the majority quotes the more-recently enacted statutes that address only pandering and pimping.5 However, those statutes have no bearing upon the petitioner's conduct or conviction. The petitioner committed the crime of soliciting an act of prostitution, not pimping or pandering. As noted above, West Virginia Code § 61-8-5(b) encompasses the misconduct of several different participants in the crime of prostitution, including persons who commit acts of prostitution, solicitors of prostitution, aiders and abetters, etc. Persons who violate West Virginia Code § 61-8-5(b) in ways other than pimping and pandering are still subject to punishment, including the penalty enhancement for subsequent offenses if they benefit financially or otherwise from the earnings. The Legislature's enactment of new statutes addressing pimping and pandering did not alter this statutory mechanism.

In a further effort to convolute the plain legislative directive, the majority engages in a wholly irrelevant discussion of the history of the statute. The majority claims that before 1943, the Legislature criminalized houses of ill fame without seeking to punish a person for engaging in "prostitution per se." See Barnes West Virginia Code Ann. 1923 ch. 149 § 10 (prohibiting "houses of ill-fame"). Even if this statement was factually accurate, it would be of no moment. More than seventy years ago, the Legislature unquestionably criminalized a person's act of engaging in prostitution with the enactment of West Virginia Code § 61-8-5(b) ("Any person who shall engage in prostitution . . . shall, upon conviction . . . be punished[.]"). Furthermore, a review of other statutes from the time period reveals that pre-1943 enactments did criminalize certain sexual behavior by individuals. See Barnes West Virginia Code Ann. 1923 ch. 149 § 6 (prohibiting adultery and fornication); § 7 (prohibiting lewdness). Pursuant to the social standards of the time, the Legislature prohibited these acts between non-married adults regardless of whether the acts happened to be performed in exchange for financial remuneration.

Further perplexing is the relief the majority opted to grant the petitioner in this case. After concluding that the subsequent offense provision is ambiguous with regard to persons who commit prostitution, but without engaging in any discussion regarding the applicable relief that should be awarded, the majority simply orders the dismissal of the indictment. However, the statutory language that the majority finds ambiguous is a penalty enhancement provision; the challenged provision does not dictate the elements of the crimes of prostitution or soliciting an act of prostitution. Cf. Syl. Pts. 4-7, State v. Herbert, 234 W.Va. 576, 767 S.E.2d 471 (2014) (recognizing that some prior convictions merely constitute penalty enhancers, not essential elements of currently charged offense). The petitioner's solicitation of a sex act in exchange for money would be a crime whether it was her first offense or her third offense. The majority's conclusion that the subsequent offense enhancement is inapplicable does not serve to negate or nullify the petitioner's admitted criminal conduct.6 By dismissing the indictment, the majority is signaling that a person can only be convicted of prostitution two times. What, however, is the State to do if a person commits the crime of prostitution three or more times? Does the person have free reign to thereafter commit the prohibited offense with no risk of prosecution or sanction? That is decidedly not what the Legislature intended.

Analogous cases demonstrate the remedy that the majority should have imposed. For example, in State v. Palmer, 210 W.Va. 372, 557 S.E.2d 779 (2001), a defendant was convicted of third offense driving while his license was previously suspended or revoked for driving under the influence of alcohol. Like the prostitution statute, the "driving while suspended or revoked for DUI" statute, West Virginia Code § 17B-4-3 (1994), included provisions enhancing the penalty to be imposed for second and subsequent convictions. On appeal, this Court concluded that the indictment had failed to adequately set forth that the defendant was charged with a subsequent offense of the crime. Palmer at 378, 557 S.E.2d at 785. Accordingly, the Court remanded the case "for purposes of resentencing the defendant in accord with the punishment for first-offense driving while suspended or revoked for DUI[.]" Id. at 379, 557 S.E.2d at 786. In State v. Hulbert, 209 W.Va. 217, 544 S.E.2d 919 (2001), a defendant appealed his conviction for, inter alia, third offense domestic assault. See W.Va. Code § 61-2-28 (1994) (specifying increased penalty upon conviction for third or subsequent offense of domestic assault or domestic battery). This Court concluded that the State failed to prove the two prior convictions at trial. Hulbert at 228, 544 S.E.2d at 930. As relief, the Court reversed the conviction for third offense domestic assault and remanded the case "for entry of a new sentencing order in connection with a conviction of first offense domestic violence." Id. Thus, when the State could not or did not prove the status element of prior offenses, the convictions and sentences in Palmer and Hulbert were reduced-not simply dismissed in toto.

The petitioner's indictment alerted her to the fact she was being charged as a repeat offender, and she acknowledged her two prior convictions as part of her conditional guilty plea to third offense soliciting. Critically, there is no challenge to the validity of the first or second offense penalty provisions set forth in West Virginia Code § 61-8-5(b). The majority's finding of ambiguity is limited solely to the language in the subsequent (i.e., third or subsequent) offense provision. As such, even under the majority's mistaken application of the rule of lenity, the petitioner's remedy should be a remand to the circuit court with directions to reduce the conviction and corresponding sentence to that of second offense soliciting an act of prostitution.

By ignoring the plain and unambiguous statutory language, the majority of this Court has exceeded its authority, inserted itself into the Legislature's bailiwick of establishing crimes and setting the correspondent penalties, and improperly overturned a valid conviction. Accordingly, I respectfully dissent.

FootNotes


1. The first iteration of this statute, W.Va. Code § 61-8-5(b), was enacted in 1882. It was last amended in 1943. This Court would welcome direction from the Legislature clarifying the third offense provision contained in W.Va. Code § 61-8-5(b).
2. These prior convictions occurred on October 20, 2012, and January 17, 2013.
3. After the circuit court's denial of the motion to dismiss, Defendant Fuller entered a conditional guilty plea to the charge contained in the indictment. The circuit court accepted the conditional guilty plea and sentenced Defendant Fuller to a term of imprisonment of one to three years. However, the circuit court suspended execution of this sentence to permit Defendant Fuller to file the instant appeal.
1. The charge of "soliciting" reflects that a sex act was not consummated; the petitioner's offer to perform a sex act in exchange for money was made to an undercover police officer who promptly arrested her.
2. An example of "benefitting . . . otherwise" could include a prostitute's acceptance of illegal drugs instead of money for the performance of a sex act.
3. Examples of people who do not "benefit financially or otherwise" from a prostitute's "earnings" would include persons who pay for sex acts, and persons who aid and abet prostitution without receiving any remuneration from the earnings. Pursuant to West Virginia Code § 61-8-5(b), these individuals are subject to an enhanced penalty under the second offense provision but not under the subsequent offense provision.
4. See W.Va. Code §§ 61-8-7, -8 (2014).
5. See supra note 4.
6. By entering a conditional guilty plea, the petitioner conceded that she committed the crime but reserved the right to challenge the applicability of the subsequent (i.e., third or subsequent) offense provision to prostitutes.

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