788 S.E.2d 741
W. Va.2016Background
- Jerry Deel was convicted in 2005 for sex offenses committed in September 2001 and received concurrent prison terms; three sentences were suspended and the court ordered 10 years probation with registration and treatment conditions after release.
- Deel completed incarceration and was discharged January 24, 2015, and registered as a sex offender; probation officers noticed the sentencing order stated a 10-year probation term.
- On March 2, 2015 the circuit court held a hearing and modified Deel's sentence to five years probation followed by twenty years of intensive supervised release under West Virginia Code § 62-12-26.
- Deel did not raise an ex post facto challenge below or on appeal; both parties (and the circuit court) had believed supervised-release provisions were civil and could be applied retroactively.
- The Supreme Court of Appeals, invoking plain error review, held that supervised release under § 62-12-26 is punitive and that retroactive application to offenses committed before the statute's 2003 enactment violates the Ex Post Facto Clauses.
- The Court reversed only the supervised-release portion of Deel's March 10, 2015 sentencing order and remanded for resentencing consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether imposition of supervised release under W. Va. Code § 62-12-26 for offenses committed before the statute's effective date violates the Ex Post Facto Clauses | Deel contended (by implication through plain-error review) that retroactive imposition of supervised release is unconstitutional because it increases punishment | State argued supervised release is civil/regulatory (like registration) and may be applied retroactively; parties largely conceded civil nature | Court held supervised release is punitive; applying § 62-12-26 retroactively to offenses committed before its effective date violates federal and state ex post facto prohibitions; reversal of supervised-release term |
| Whether the petitioner waived the ex post facto claim by failing to object below | State relied on lack of objection and appellate concession to argue no error | Deel had not knowingly waived the right; no one appreciated constitutional ramifications at sentencing | Court applied the plain error doctrine sua sponte: error was plain, affected substantial rights, and warranted correction |
| Whether prior memorandum decisions holding supervised release non-punitive remain controlling | State cited earlier memorandum decisions and Hensler to treat requirements as civil | Deel (and Court) noted conflict between memorandum decisions and published precedent recognizing punitive aspects | Court disavowed conflicting memoranda to the extent they conflict with published precedent and this opinion |
| Proper remedy for unconstitutional supervised-release imposition | State urged affirmance of sentence within legal limits | Deel requested modification/remand | Court reversed only the supervised-release portion and remanded for entry of a new sentencing order conforming to this opinion |
Key Cases Cited
- Adkins v. Bordenkircher, 164 W. Va. 292, 262 S.E.2d 885 (W. Va. 1980) (defines ex post facto prohibition that laws increasing punishment after the offense cannot be applied retroactively)
- State v. James, 227 W. Va. 407, 710 S.E.2d 98 (W. Va. 2011) (recognizes supervised-release statute as punitive and an inherent part of sentencing scheme)
- Hensler v. Cross, 210 W. Va. 530, 558 S.E.2d 330 (W. Va. 2001) (holds sex-offender registration is regulatory and civil in nature)
- State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (W. Va. 1997) (standard of review for sentencing: abuse of discretion unless statutory or constitutional commands implicated)
- State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (W. Va. 1995) (plain-error doctrine and distinction between waiver and forfeiture)
- State v. McKinley, 234 W. Va. 143, 764 S.E.2d 303 (W. Va. 2014) (treatment and precedential value of memorandum decisions)