## Facts

- Mabel Lewis was convicted in the Circuit Court of Mercer County of third-offense shoplifting.
- The stolen items were groceries valued at approximately $8.83.
- Under W. Va. Code § 61-3A-3(c) (1981), a third or subsequent shoplifting conviction required an indeterminate penitentiary term of 1–10 years and a $500–$5,000 fine, regardless of the value of the goods.
- The statute expressly barred probation and, as applied, foreclosed alternative sentencing.
- The circuit court sentenced Lewis to 1–10 years’ imprisonment and a $500 fine, and declined to consider her request for alternative sentencing.

## Issues

1. Whether W. Va. Code § 61-3A-3(c) (1981), mandating penitentiary confinement and barring probation for third-offense shoplifting regardless of value, imposed cruel and unusual punishment under the Eighth Amendment and W. Va. Const. art. III, § 5 because it was disproportionate.
2. Whether a prior uncounseled misdemeanor conviction may be used to enhance a later sentence of imprisonment absent counsel or a valid waiver (reaffirmed in the court’s syllabus).

## Decision

- The court held that, prior to the 1994 amendments, W. Va. Code § 61-3A-3(c) (1981) was unconstitutional because it imposed a disproportionate punishment by expressly prohibiting probation and effectively prohibiting alternative sentencing.
- The court reversed the sentencing disposition and remanded for the circuit court to consider the alternative sentencing requested by Lewis.
- The conviction itself was not set aside; the remand concerned sentencing discretion.

## Legal Principles

- W. Va. Const. art. III, § 5 contains an express proportionality command: penalties must be proportioned to the character and degree of the offense.
- West Virginia proportionality review can apply to any criminal sentence, including legislatively mandated terms.
- In assessing proportionality under art. III, § 5, courts consider: (1) the nature of the offense, (2) legislative purpose, (3) comparison to punishments in other jurisdictions, and (4) comparison to other offenses within the same jurisdiction.
- A mandatory penitentiary sentence for a minor, nonviolent property offense may be cruel and unusual where it eliminates individualized sentencing by barring probation and alternative sanctions.
- A prior uncounseled misdemeanor conviction may not be used to enhance a later sentence of imprisonment unless the defendant had counsel or knowingly and intelligently waived counsel.

## Conclusion

West Virginia invalidated the pre-1994 mandatory, no-probation sentencing scheme for third-offense shoplifting as disproportionate cruel and unusual punishment, and required the trial court on remand to consider lawful alternative sentencing rather than impose automatic penitentiary confinement.


State v. Lewis, 447 S.E.2d 570 (W. Va. 1994)