One of the most common questions that people facing criminal charges in Wheeling ask is how does the law differentiate a misdemeanor from a felony? One might hear that the crime they stand accused of is considered a misdemeanor, from which the penalties that may result are often viewed as the proverbial “slap on the wrist.” Yet it is difficult to classify some types of criminal activity as being exclusively considered felonies and misdemeanors. The reason for this has to do with the concept of aggravating circumstances. 

The Cornell Law School defines “aggravating circumstances” as being factors that may increase the perceived severity of an act. Some common aggravating factors that it cites include: 

  • Heinousness of a crime
  • Lack of remorse
  • Prior criminal convictions

When considering aggravating circumstances, the assumption often is that their presence should impact the potential sentence one accused of a crime might face. This may lead to scenarios where a crime normally considered a misdemeanor might be viewed as a felony. 

The legal definition of “assault’ in West Virginia illustrates this point perfectly. Per Section 61-2-9 of the West Virginia Code, a person convicted of assault would typically face a misdemeanor charge. However, the law goes on to say that in cases of assault, a previous domestic violence offense is viewed as being an aggravating factor. If one accused of assault has a previous domestic assault conviction on their record (regardless of whether the current offense is against the same person), then that person is subject to the subsequent offenses provision of the state’s domestic assault laws (which ultimately results in felony charges). 

Other scenarios that the state views as being influenced by aggravating are similarly spelt out. Aggravating factors should also not be confused with mitigating factors, which can lessen the supposed seriousness of a crime.