State Ex Rel. Carper v. West Virginia Parole Board

trickery in a defendant’s decision to relin- 509 S.E.2d 864 tеstify. quish right the constitutional In a George STATE of West ex rel. sense, evidentiary real the issue of innocence CARPER, Petitioner, a direct concern in Neuman. guilt or is not Thus, presumption we hold that a rebuttable represented by legal that a exists defendant WEST VIRGINIA PAROLE BOARD, Respondent. counsel has been informed of the constitu- right testify. tional aWhen defendant is No. 25184. counsel, a Neuman vio- represented by legal Appeals Court of lation is harmless error the absence of Virginia. legal that a evidence defendant’s counsel right failed to inform to testi- him/her Submitted Oct. 1998. fy, or that the defendant was coerced or Decided Nov. 1998. relinquishing right testify. misled into Dissenting Opinion of Chief Justice Davis represents a defendant When him/herself 14, 1998. Dec. trial, a Neuman violation is harmless error where it is shown that the defendant was in right testify

fact aware of and that his/her

the defendant was coerced or into misled

relinquishing right testify. Applying

this test to the instant we that Mr. find represented by legal

Salmons was fact nothing

counsel. There is the record to presumption legal

rebut counsel right

failed to inform Mr. Salmons

testify. The record fails to disclose facts

showing suggesting that Mr. was Salmons giving up right

coerced or misled into

testify. In view of the test

case, we find that the Neuman violation was harmless error. Davis, C.J., dissenting opinion. issued

III.

CONCLUSION foregoing,

In view of the we find no error

in the conviction and sentence in this case.

Therefore, the decision of the Circuit Court County

of Kanawha is affirmed.

Affirmed. Carper,

George Pro se. McGraw, Jr., Esq., Attorney Darrell V. Cardinal, General, Esq., Assistant Chad M. Charleston, General, Attorney Respon- dent.

STARCHER, Justice: In the instant we review retroac- statutory a 1997 amend- tive periods increased time authorizing ment parole hearings for serv- between imprisonment with the ing “life” terms of parole. possibility of We conclude facially application does not vio- against prohibition late the constitutional narrowly laws, if amendment is basis, appro- case-by-case on a with safeguards. priate I. Background

Facts and Virginia Legislature en- In 1997 the West law, an to our acted amendment W.Va.Code, 62-12-13, respon- allows the (“the a court in order to sustain constitution Board Parole dent West Board”) ality, ‍‌​​​​‌‌‌​​​​‌​‌​‌​‌‌‌​‌‌‌‌​‌‌​​​​‌​​​​​​​‌​​​​‌​‍any doubt must be resolved to decrease the constitutionality legisla favor of the serving hearings who sen- 3, Syllabus, enactment’ Point possibili- tive Willis imprisonment of life tences O’Brien, [153 178] 151 W.Va. 628 S.E.2d ty parole. nent ^[1997] As state correctional In the case of a part: (effective amended, July W.Va.Code, 62-12-13(a)(5) person 10,1997) center, it shall be the sentenced to states perti- W.Va. Syllabus Point Haden v. Calco [ W.Va. ].” 524, 170 Syllabus Point 3, Donley Awning S.E.2d 362 & Window Bracken, State (1969). ex rel. Corp., board, duty person as such soon III. eligible, to consider the advisabili- becomes (Emphasis may board: ity the denial board shall at least once shall be ty life eligible, which reconsideration and review and review the case of such of his or her release on any sentence. reconsider and review consideration, Provided, however, That the board time within three by added.) at least three members of the parole parole be of person serving every parole. years following year parole denied, reconsider inmate so If, eligibil- that the to the Board’s review of his sentence violates termine that the tutionality er’s above-quoted language from ex annual 12-13(a)(5) post pro facto The parole se of the Board’s ^[1997] pleadings petitioner challenges principles.2 review.1 petitioner Discussion of the 1997 amendment him, by denying him Treating application has stated a claim liberality, we W.Va.Code, the consti petition of the 62- de an recognized pa This Court has petitioner George Carper began The serv- hearings role a substantial interest sub mercy ing a life with sentence 1978. On ject legal protection. See Vance v. Hol 11, 1998, February petitionеr was denied (1987) land, 177 W.Va. S.E.2d parole. petitioner The Board informed the curiam). (per Accordingly, legal provisions that the next Board would review his affecting “parole eligibility ... scruti [are] eligibility years, February in 2 of 2000. nized under the Ex Post Facto Ad Clause.” petitioner pro pleading filed a se in this Bordenkircher, 292, 296, kins v. 164 W.Va. challenging Court the Board’s action as viola- S.E.2d post provisions. tive of constitutional ex facto pleading Adkins, We treated his as a writ of manda- In we held that were by respon- mus and made it returnable good have time their entitled to credits on dent Board. sentences calculated at the rate established

by the statute in effect at the timе of the prisoner’s commission of a offense. We rec- II. ognized general rule established Standard Review superseding that “a federal courts law or constitutionality change “When administrative rule cannot the condi- questioned every parole eligibility statute is to the reasonable con tions of detriment imprisoned running struction of the statute must be resorted to an offender without afoul petitioner argues permissive argument language 1. The also that the is meritless. The "may" statutory proviso word exception in the at the end of proviso is clear and constitutes an quoted may section—"the board reconsider required prison- annual eligibility аny and review time within generally. ers years following three the denial of of a person serving a life not autho- sentence” —does III, post 2. Ex laws are barred under Article facto length rize the Board to increase the of time Virginia Section 4 of the West Constitution and up years between prisoners serving reviews to to 3 I, Section 10 of the United States Article Constitu- possibility terms of life with the tion. parole. at noted in State v. R.H. that the the Ex Post Facto Clause.” 164 W.Va. We (citations 296-297, post prohibition at 887 omit- S.E.2d ex extends to alter facto ted). ation, procedural, even one labeled “which consequences, relation to the offense or its Adkins, Syllabus Point 1 of party of a alters situation to his disadvan Court stated: tage.” 166 at at 584. W.Va. principles post Under facto general further stated that these obser We United States and West Constitu- provide vations a standard which tions, passed a law after commission of guided courts are to be in their determina punishment, an offense which increases statutory changes may ap tion of which lengthens operates the sentence or to the plied retroactively to an accused. what Just accused, ap- cannot be detriment procedure alterations of will be held to be of plied to him. transgress sufficient moment the constitu R.H., 280, 288-90, State W.Va. prohibition tional cannot be embraced within this Court 273 S.E.2d 583-84 general proposition. in a a formula or stated recognized the States Su classic United degree. The distinction is one of 166 W.Va. preme definition of an ex 273 S.E.2d at 5843 law as set forth the United States Su respect legal changes With that retroac- Bull, preme Court Calder v. tively prisoner’s parole eligibility, affect a we (3 Dall.) (1798): 390, 386, 648, 1 L.Ed. 650 Adkins, supra, in stated that: (1) every law that makes an action done law, passing and which before Marrero, 653, In v. 417 662- Warden U.S. criminal, done, was innocent when 63, 2532, 2538, 383, 94 41 L.Ed.2d 392 (2) action; every punishes such law that (1974), Supreme strongly im- Court crime, greater aggravates a or makes it plied that a law which altered the condi- (3) committed; every than it law was when parole eligibility to the detriment tions of changes punishment, a inflicts post of an inmate would contravene the ex greater punishment than the law annexed prohibition: facto (4) committed; every the crime when “[Ojnly prisoner an unusual could be evidence, legal law that alters the rules of expected that he not suf- to think was testimony and receives less or different penalty he eli- fering a when was denied required than the law at the commission of parole. offense, gibility for For the confined order to convict the offend- legal prisoner, parole with its er. —even change proceed- recognized problems procedural in a criminal 3. Court has inher A attempting changes ''pro post principle ent such to label as ex facto does not violate the Const, respect Ill, cedural” or to their "substantive” § and in found in the W.Va. art. ‍‌​​​​‌‌‌​​​​‌​‌​‌​‌‌‌​‌‌‌‌​‌‌​​​​‌​​​​​​​‌​​​​‌​‍4 Const, to criminal defendants. I, procedur- § art. 10 unless the the U.S. SWCC, 583, 591, In Pnakovich v. 163 W.Va. 259 change a crime so al alters the definition of 127, S.E.2d 131 we stated: currently punished a was that what is crime practice, very changes In few criminal stat- [to committed; deprives the an innocent act when perceived merely procedural utes] are to be which existed when the accused of a defense right because of the nаture of the which the committed; punish- crime was or increases procedural criminal statute alters. change If the ment for the crime after it was committed. perceived deny is'not the accused a Hensler, 81, 83, 415 In State v. 187 W.Va. laws at the defense available under the time curiam), (1992) (per we stated 887 offense, operates only in a his limited further: disadvantage, then unsubstantial manner to his the Supreme Court and this [T]he United provision may applied retroactively. recognized principle on Court have that the may Thus it be seen that limitations on retroac- against post prohibition ex which the facto severe, legislation particularly tive criminal concept of is a fundamental action is based while those in the civil area turn pro- liberty in the due constitutional embodied amount of substantial reliance. respective cess Constitutions. clauses Syllabus We 7 of State ex stated in Point rel. Bedell, 460 S.E.2d 636 Collins v. (1995): 194 W.Va. other, step fenses when less onerous revocation long a toward re- constraints —is procedures in effect. were freedom. gaining lost Mathis,

Recently, Lynce (1997), L.Ed.2d 63 117 S.Ct. parole eligibility previ- repealer of “[A] post Supreme Court United States ously imprisoned offenders available prohibit retroac- principles to Florida’s facto clearly present ques- the serious would еarly release tive credits. cancellation ... of tion under the ex clause However, deciding years Lynce, ‘greater imposed or more whether Morales, Dep’t Corrections California prescribed than was punishment severe supra, time of the ... offense.’[”] law at the (1995), Supreme de- L.Ed.2d v s¡s >¡< # # clined to strike down California statute retroactively changed Comm’n, Rodriguez In U.S. Parole [v. prisoners. very limited class of review Cir.1979) (7th ], empha- the court F.2d 170 im- that it immaterial that the sized was the statute allowed the prisoned might not received offender have (a grant years board “setoffs” of “setoff’ was, eligibility. It parole at the time of his the time is a term to describe until used rather, prisoner satisfy right of the given that is next conditions, eligibility and thus earn the prisoner) parole to a board when it denies right parole, fitness to demonstrate prisoners who group a small had been which affected to could not be in- convicted of more than one offense that disadvantage. the inmate’s multiple-homi- These taking volved a life. Adkins, cide had been sentenced under 296-97, supra, 164 W.Va. omitted). (citations requiring laws an annual review. S.E.2d at 887 Snow, (11th 922 F.2d Akins v. Court Morales found Cir.1991), appeals of application a federal court struck the retroactive California rule Georgia parole 3-year-setoff multiple-homicide down а board as violative for statute post principles. “only speculative of ex The rule that most prisoners created the facto allowed the parole possibility producing the board increase of the and attenuated length parole of hearings increasing time to 8 the prohibited between of measure of effect years change ap- a from the annual review ... punishment was covered crimes [and] for by parole that was in prescribed plies only prisoners board rules whom to a class for of place prisoner parole when the committed his of- quite release on is likelihood of 509-10, fense. at at remote.” 514 U.S. added). (emphasis at 597 L.Ed.2d Akins, court that a the federal stated key prisoner issue a com noted that the was whether who Court also California previous finding mitted an when a rule was that was no required offense statute a there “deprived opportunity in effect of an parole prison- was for likelihood of for an individual a denial, parole prior year parole to the alteration of er within after that existed parole prisoner receiving F.2d at rules.” 922 1562. But see that a an extended setoff Georgia Jones v. Bd. review right State Pardons had to ask for of Paroles, (11th period. 1149 n. 8 at 508- 59 F.3d Cir. end of their setoff U.S. 1995) 1602-03, 09, 513, (questioning viability continued of 115 S.Ct. Akins, tions v. 1597, 131 Kеllogg in light Morales, L.Ed.2d 588 v. of Shoemaker, California (1995), Dep’t see F.3d 503 infra.) of 115 S.Ct. Correc (6th plies L.Ed.2d at case, W.Va.Code, Unlike to the entire the statute 599. 62— population at issue 12—13(a)(5) in the of prisoners ^[1997] Morales ap- Cir.1995), serving appeals state are a life a federal court of found this who sentence (approximately possibility parole that new of and more onerous Ohio revo- with Nothing in the procedures persons). cation be record of could not applied of suggests instant case “likelihood who had committed of- pre-Morales, “quite writing panel for a unanimous of this class is for members parole” Morales, Indeed, it is cer- suрra. prohibited had the retroactive remote.” (if not significant number changes that a tain South Carolina law under majority) ly, the 1997 some prisoner a does 12— 13(a)(5) the Board articulate reasons our time be statute longer than proviso added ^[1997] the members released on contain contains no provisions allowing a parole. Additional- year W.Va.Code, requirement class will at setoff. Nor giving 62- Morales post have found that Moreover, “speculative” disadvantages facto respect principles). permit some to their they the retroactive jurists were eligibility who have reading on imposition Morales applied release brоadly. Singletary, too See Calamia given to ask for who is such setoff prisoner (Fla.1996) date, (upholding if hearing earlier condi- So.2d 1337 retroactive a review at an credits), change. tions cancellation of release vacated remanded, apply Morales deci- specifically How to (Fla. (1997), rev’d L.Ed.2d 473 694 So.2d 733 changes, arising law in cases sion 1997) (on remand from the United States post clause of the United under the ‍‌​​​​‌‌‌​​​​‌​‌​‌​‌‌‌​‌‌‌‌​‌‌​​​​‌​​​​​​​‌​​​​‌​‍ex facto opinion Court after issuance of the Constitution, is somewhat unclear. Mathis, supra.)4 Lynce Gunn, 107 F.3d 227 example, For Roller v. Cir.1997) (Roller (4th II), majority of a certainly Morales, appre We understand and panel,

three-judge applying held argument of ciate the force of the the State changes in application of parole laws in the instant to the Carolina’s did not violate South post statutory .proviso clause. See also Hill v. that petition the ex effect that facto Cir.1995) Jackson, (4th (relying 64 F.3d 163 narrowly Carper challenges er can be uphold change Morales to a retroactive on fashion, constitutionally acceptable and in a Virginia.) frequency narrowly reduc tailored mechanism for Jones, supra, 59 F.3d at 1149 n. 8. See also truly “pointless” parole hearings prison for those individual life-term II, However, Judge in Roller Senior K.K. certainly ers who the Board detеrmines ap- persuasively argued dissent that Hall year after a going paroled within changes plying Carolina the South denial, extraordinary absent circums violate the federal ex did indeed course, duty our to tances.5 And of is clause, they because likeli- “decreas[e] constitutionally accept in a construe statutes degree to parole hood of release on a that possible. Syllabus if all Point able fashion 107 offends the Ex Post Facto Clause.” F.3d Bracken, 3, 383, (In Donley v. 192 W.Va. 452 Cavanaugh, 984 F.2d at 240. Roller v. Cir.1993) (1994). (4th (Roller Hall, I), Judge S.E.2d 699 120 up years, uncertainty juris to even with post ex from annual review to 3 4. This in federal facto regard prudence, a our safеguards require and due for historic we in case to that protections position post ex must be muster, that presses the constitu- meet constitutional facto strictly prohibit legislation applied to that retro tionally permissible limit. (see punishment actively for crimes Ad enhances Bordenkircher, supra), v. lead us to decline kins to many prisoners serving terms 5. It is true that life express approval cases like wholesale Roll parole possibility of have committed with the Jackson, II, supra, supra, Hill v. and Jones v. er precisely But it our treat heinous offenses. is Paroles, supra— Georgia Bd. and State Pardons of legal persons system's that tests our ment оf such uncritically to cases that seem take an tolerant exacting of commitment to an standard fairness. clearly approach disadvantageous broad to and (while serving Home Winston As Churchill provi changes parole eligibility in Secretary) of in 1910: treatment "[T]he said exemplified approach, as sions. A stricter stored-up Snow, Shoemaker, crime and criminals measure supra, Kellogg Akins pra, v. su v. nation, sign proof Cavanaugh, supra, strength a and v. and Senior of are the Roller II, Gilbert, Judge supra, is living dissent in Roller more Hall's it.” Search virtue in M. of approach Collins, this Court has Churchill, 1993), consistent with that (Harper quoted 269 of in historically to issues. taken thesе 370, (1997), Gorski, Sulli v. 47 M.J. 376 Additionally, we note that the instant van, concurring. Judge, parole retroactive increase in review 590 discussion, statutory foregoing prior effective

Based on the to the date of the amendment. appropri an that we can take we determine with the reinforce vision constitutional ex grounding ales, ately deferential statute’s III, provisions of our state constitutional Section and at the same time adhere prohibiting Supreme our constitutionality, our 4, historically ruling post approach to the Court’s by requiring reasonable post facto the instant facto strict jurisprudence, by decision Mor act laws, approach consistently challenged case on Article to pro tween terms of life tion muster under the ex ty case basis curred at West 13(a)(5) of 4, Virginia parole parole ^[1997] However, provisions imprisonment time when the law must be reviews for prisoners Constitution, allowing up post to applied of whose offenses W.Va.Code, pass facto prisoners with the Article to 3 on a constitutional clause of the prescribed years possibili III, case-by- serving 62-12- Sec be oc safeguards the retroactive of annual ‍‌​​​​‌‌‌​​​​‌​‌​‌​‌‌‌​‌‌‌‌​‌‌​​​​‌​​​​​​​‌​​​​‌​‍reviews. Parole The Board of Carp prisoners petitioner may only period the statute like extend between we determine Article in а denial of er.6 clause W.Va.Code, 62-12-13(a)(5) period review III, of the West Based Section hearings up 4, to 3 under the ex the 1997 amendment to Virginia foregoing reasoning, years following be conducted ^[1997] Constitution, serving that allows with sen will be no detriment or information must receiving review year individualized determination with reasoned ly, prisoner findings due if be hearings process from such on afforded the Board the record for the requires for such period an has made extension. Additional Board’s consideration opportunity disadvantage showing why of more than prisoners such a case-specific beyond prisoner submit to the there year 1 imprisonment possibili tenсes life during any period requesting extended that a ty may granted be expiration review be period. whose relevant offenses occurred the extended power interpret process rights); state 6. "States have the con- does violate defendant's due guarantees Virginia Group stitutional in a manner different than see West also Action Citizens 299, interpreted Daley, CourLhas W.Va. United 324 S.E.2d 713 guarantees. (state comparable compels federal striking constitutional constitution limitation Hass, 1215, 714, Oregon soliciting on after sunset even if federal consti Narick, (1975).” not); L.Ed.2d 570 Peters v. tution does Trustees Board Woodruff v. 760, 13, 628 n. 270 S.E.2d 768 n. 13 Huntington Hospital, W.Va. Cabell 173 W.Va. (1980). (1984) (Article III, 319 S.E.2d stringent § 1 "more in its waiver limitation on repeatedly Court has determined rights] than con [of fundamental is the federal Virginia protec- may more West Constitution stitution”); Pushinsky v. West Board rights individual counter- tive of than its federal Examiners, Law W.Va. 266 S.E.2d See, Bonham, part. e.g., State v. 173 W.Va. (1980) (recognizing that state constitution As Justice Workman imposes stringent power more limitations on Virginia, stated in Women’sHealth Center of inquire of state to into lawful and associations 436, 442, Panepinto, Inc. v. 446 191 W.Va. speech tion); imposed by than those federal constitu 658, (1993): 664 S.E.2d 707, 672, Pauley Kelly, v. 162 W.Va. Bonham, that, this Court noted "the Unit 859, (1979) (ruling S.E.2d that education Supreme recognized ed States Court has ... right”); is a "fundamental constitutional see supreme may that a state court set its own Miller, generally Justice Thomas B. The New protections higher level constitutional at a than Virginia, Federalism West 90 W.Va.L.Rev. 51 by that accorded the ... federal constitution.” " (1987-88). principle provisions Based on the that ‘[t]he provision guarantees The of enhanced Virgi the of Constitution of the State of West instances, enjoyment liberty may, "the of life and ... and require higher nia in certain by permits safety” our state protection by constitution both standards than afforded the Constitution])]’ interpret requires guarantees us to Syllabus those Federal ley Kelly, Point Pau independent Const, precedent. v. from federal W.Va. 162 W.Va. S.E.2d Ill, Bonham, Accordingly, § 1. are ...” we art. we ruled in that this process by precedent interpreting federal state's due clause a criminal bound is- affords greater protections arising defendant the constitutional law these than federal sues of from counterpart... imposition guarantees. (holding that enhanced (Citations omitted.) following severe more sentence trial de novo sought compel Board in titioner a writ of mandamus to The actions (hereinafter course, Virginia the West Parole Board subject to regard, of the same Board”) him “the to review on an discretion/arbitrary capricious” “abuse of language annual basis with the consistent applied that is to the review standard pre-existing § W. Va.Code 62-12-13 the stat- Board’s other determinations. Tasker petition, ute’s 1997 In his amendment. the Mohn, S.E.2d 183 W.Va. petitioner Ex Post argued that the Facto to prisoners further that as We conclude prohibited application of the 1997ver- Clause Carper, ruling in petitioner than our other § sion of W. Va.Code 62-12-13 because it prospective the instant is to be case impermissibly punishment by increased his ly- allowing only the Board to conduct tri-annual parole hearings. majority opinion The cited IV. approvingly Syllabus point 1 of Adkins v. Conclusion Bordenkircher, 164 W.Va. (1980), which held: In the we have a scant instant record principles Under ex the resрect give decision

with to the Board’s Virginia United States and West Constitu- Carper 2-year deny setoff. We the Mr. tions, law passed after the commission requested mandamus insofar Mr. writ of as punishment, an offense the which increases Carper require give the asks us to Board to lengthens operates the sentence or grant him an annual review. We accused, ap- detriment cannot is required to the that the Board writ extent plied to him. make an individualized determination with reference, respect Carper’s appears of Mr. From this extension period year, majority opinion ignore the beyond 1 and to other- could not force of Thus, clarity pronounced in Adkins. principles wise act in accordance with that, majority opinion implicitly conceded opinion. enunciated in this 62-12-13(a)(5) written, § W. Va.Code would Writ Granted as Moulded. if given violate the Ex Facto Clause Post application. dispens- Instead of retroactive DAVIS, Justice, dissenting: Chief upon this implicit issue based 1998) (Filed Dec. however, finding, majority decided to do what, effect, only Legislature could presented a classic case violation do—amend to meet minimum the statute the Ex in Arti Post Facto Clause contained permitted by II, standard Morales. cle Section of West Consti majority opinion perpetuates tution. The Supreme United States contending following it is violation Any Did Amend Statute Not guidelines established the United In Morales Supreme Depart Court California concluding that Ex Upon implicitly ment Corrections applica- Post Facto Clause barred (1995) (Ste 131 L.Ed.2d 588 62-12-13(a)(5), § tion of the ma- W. Va.Code J., vens, Souter, J., dissenting). I do not jority opinion can further concluded “we authorizing any judi state read Morales as approach appropriately take an deferential to, effect, ciary body legislative repeal challenged constitutionality, statute’s Ex Facto its constitutional Post Clause. consistently act with the [and] Therefore, following analysis, based by requiring ... in Morales Court’s decision respectfully I dissent. safeguards ap- in the retroactive reasonable Majority That The Concedes Retroactive problem plication of The statute[.]” the

Application § W. Va.Code 62-12- Of this conclusion is that it is inconsistent with 13(a)(5) The Violates Ex Post Morales. Facto Clause Morales, sepa- had two In the defendant murder. Both convic- presented The to this was rate convictions for issue Court the in at a time when law straightforward uncomplicated. pe- The tions occurred and Morales, at 1604. parole hearings. 514 U.S. at S.Ct. annual required California majority purports apply mur- Mor- opinion the defendant’s last The to years after Several conviction, legislature Yet, the California the of the case before it. der ales to facts hearings. parole frequency of changed majority opinion point only the one the can argued that the retroactive The defendant un- similarity between the California statute amended statute violated application of the in Morales and W. Va.Code der consideration The Unit- Ex Post Facto Clause. the federal 62-12-13(a)(5). § Each de- law disagreed based Supreme Court ed States frequency parole hearings. creased the part very provisions that were specific Supreme The did not base its decision Court First, addressed Morales. the statute pass federal to allow California’s statute that California’s statute stat- Morales found on the mere fact that it constitutional muster applied only to “those explicitly that ed pa- retroactively decreased the ‘more have convicted of prisoners who been Supreme hearings. In the role taking one offense which involves than specific provisions in Califor- Court relied on ” Morales, at 115 S.Ct. a life.’ U.S. depart- provided that nia’s statute basis proceeding, the ma- 1603. In the instant at ing precedent previously bar- from federal jority opinion conceded that W. Va.Code Graham, ring such statutes. See Weaver 62-12-13(a)(5) prisoners applies § to all L.Ed.2d 17 U.S. sense dic- serving a life sentence. Common Marrero, (1981); Warden v. U.S. narrowly tates that tailored statute In this L.Ed.2d 383 in the Morales and the all-inclusive statute explicitly stated regard, California’s statute require different out- proceeding instant that allowed carte blanche it was not be Second, Morales, comes. the California Rather, application. it was to be explicitly provided that it ‍‌​​​​‌‌‌​​​​‌​‌​‌​‌‌‌​‌‌‌‌​‌‌​​​​‌​​​​​​​‌​​​​‌​‍had “no statute only who had been convicted of Board has prisoner effect on unless the multiple only after the Board murderers concluded, only hearing, after a not that first hearing that it conducted determined parole, but also prisoner is unsuitable for expect pris- that such was not reasonable expect ‘it is not reasonable granted parole in oners would be the follow- during granted hearing would be at a Moreover, years. the California statute ” Morales, following years.’ specific findings mandated that these be opinion in majority 1604. The 115 S.Ct. at made the statute could be retroactive- judice that W. the ease sub has conceded in- ly applied. Supreme did not The Court 62-12-13(a)(5) provides absolutely § Va.Code they vent these were included criteria — making guidance no to the Board in statute. California deny annual review. This decision to that the blаtant distinction further mandates legislature, respects, In all the California be different. outcome for the two statutes Court, Supreme crafted not the California language conditions in the statute Supreme up its deci- Court summed that convinced the United States by holding sion in Morales that California’s contrast, upheld. that it should be Ex statute did not violate the federal Post complained of in statute Facto Clause as follows: judice provides sub that “the board the case light particularized findings re- parole eligibility may reconsider and review quired under the and the broad [statute] years following any time within three Board, given the the narrow discretion person serving a life denial of by amend- class of covered 62-12-13(a)(5). § sentence.” Va.Code W. reasonably expect ment that their cannot words, which no real similari- These few bear prospects early release on would upheld in ty statute Mor- California opportunity of annual enhanced ales, majority to have been used hearings. prisoners, [stat- For these their actions are consistent conclude simply Board to avoid the ute] allows the illogical reasoning by with that ease. Such futility going through the motions of majority, my judgment, only suitability vio- reannouneing its denial clause, Ex but yearly on a lates this State’s Post Facto basis.

593 Morales, it would have barred Ex Post Facto Clause. the federal also defiles 62-12-13(a)(5), Warden, § as the West 112 Nev. 921 P.2d W.Va.Code See Miller Morales, (Nev.1996) Virginia not meet minimal statute does the (finding, under 882 by approved by Morales. narrow standard Ex Facto was violated federal Post Clause power to revoking board new law Morales, Second, majority contrary to the convicted of of defendants commute sentence permitted § 62-12- opinion has W. Va.Code murder). degree first 13(a)(5) retroactively pa all to be to Majority’s Amendment To W. Va.Code eligible prisoners serving life role sentences. ’ 62-12-13(a)(5) Absolutely Provides § contrast, the By primary basis Morales The Board’s No Standards To Guide precedent from was the ex deviation federal Discretion tremely prisoners subgroup narrow to ie., applied, statute multi which California’s indicated, my judgment, the I have As Mor ple The limitations of the murderers. by majority opinion is the rendered decision explained by ales were the United decision both the and state inconsistent with federal Mathis, Lynce Supreme Court guide Two me post facto clauses. factors 891, 137 L.Ed.2d 63 519 U.S. 117 S.Ct. to this conclusion. that, Lynce 1 In the stated Court First, majority opinion purportedly has Morales, inquiry under the relevant is apply to given authority W. Board “ ‘change whether the alters definition of 12—13(a)(5) case-by-case § on a Va.Code 62— by penalty conduct increases the criminal or absolutely no I idea what basis. have punishable.’” Lynce, which a crime is know, I majority by ruling. a do means such (quoting at at Mor U.S. S.Ct. however, consequences will from what the be ales, 3, 115 at n. at 1602 n. 514 U.S. S.Ct. will be such unbridled discretion. This Court 3). Lynce court’s reiterated the Morales appeals legitimate pris- from inundated with “ finding ‘there no reason to conclude that is they alleging unfairly have been dis- oners any will have effect on the amendment by the Board’s decision against criminated ’ prisoner’s actual term of confinement.” I simply review. deny them annual at Lynce, U.S. at S.Ct. majority con- understand how cannot Morales, at (quoting it allow thе Board to vinced itself that could 1604). court, Lynce According to the at basis, create, on an ad hoc whimsical reasons “ that, unequivocally concluded ‘a Morales denying allowing annual review. prisoner’s ultimate date of release would be statutory In standard existed change tim entirely by the in the unaffected which narrowed class ’ suitability hearings.” Lynce, 519 ing of solely multiple who encompass murderers (quoting Mor at at S.Ct. U.S. reasonably granted expected to be were not 1605). ales, at majority opinion parole. Neither the nor analysis, Lynce Morales the final found any guidance Virginia provides statute West stat only constitutional because California’s identifying pris- Board the class of punishment impact the actual ute had no on may deny to whom annual oners imposed upon multiple murderers who dangerous The net result review. contrast, subject to the statute. were is that this will be forced decision Court impact upon the will statute compass. again legislate without once punishment of all sentenced actual create, as come will have to the cases mercy. life us, denying approv- standards for parole reviews. We annual It is not within this Court’s Legislature. body

power of law breathe to create §

Morales-type 62-12- life into W. Va.Code

13(a)(5). majority truly If had followed statute, crowding, Ex Clause Lynce Post Facto violated held that state

1. The decision provisional early punishment. re- prisoners’ canceled increasing which prison alleviate over- credits awarded to lease

Case Details

Case Name: State Ex Rel. Carper v. West Virginia Parole Board

Court Name: West Virginia Supreme Court

Date Published: Dec 14, 1998

Citation: 509 S.E.2d 864

Docket Number: 25184

Court Abbreviation: W. Va.