STATE of West Virginia ex rel. Robert VALENTINE, Petitioner, v. Ron WATKINS, Sheriff of Marion County, Respondent.
No. 27444.
Supreme Court of Appeals of West Virginia.
Decided July 14, 2000.
537 S.E.2d 647
DAVIS, Justice
Submitted June 6, 2000.
pose sanctions for an improper certification, which, in effect, allows the circuit court to impose sanctions for violations of the discovery rules:
If without substantial justification a certification is made in violation of the rule, the court, upon motion or upon its own initiative, may impose upon the person who made the certification, the party on whose behalf the request, response, or objection is made, or both, an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney‘s fee.
Furthermore, Rules 11 and 37 of the
V.
CONCLUSION
Based upon the foregoing, we conclude: (1) the provisions of
- Consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law;
- Not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and
- Not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation.
If a request, response, or objection is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the party making the request, response or objection and a party shall not be obligated to take any action with respect to it until it is signed.
If without substantial justification a certification is made in violation of the rule, the court, upon motion or upon its own initiative, may impose upon the person who made the certification, the party on whose behalf the request, response, or objection is made, or both, an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney‘s fee.
West Virginia Rules of Civil Procedure is used as a discovery device, it is subject to all the provisions of the discovery rules; (3) when a party seeks to use
Certified questions answered.
Darrell V. McGraw, Jr., Attorney General, Charles Houdyschell, Jr., Assistant Attorney General, Charleston, West Virginia, Attorneys for the Respondent.
DAVIS, Justice:
In this original jurisdiction proceeding, the petitioner herein, Robert Valentine [hereinafter “Valentine“], requests this Court to issue a writ of habeas corpus to secure his release from incarceration from the respondent herein, Ron Watkins, Sheriff of Marion County [hereinafter “Sheriff Watkins“].1
I.
FACTUAL HISTORY
The facts underlying Valentine‘s petition for habeas corpus relief commence with his conviction of unaggravated robbery2 on June 3, 1988, and his resultant sentence therefor of 5-18 years in the West Virginia State Penitentiary.3 At the time of his incarceration, Valentine‘s minimum discharge date was estimated to be June 3, 1997, provided he earned good time credit while in prison.4 Since his initial imprisonment, however, officials with the West Virginia Division of Corrections [hereinafter “D.O.C.“] have calculated that Valentine has lost a total of 830 days of good time credit during his incarceration, which time had to be added back to his minimum discharge date. With this adjustment, Valentine‘s minimum discharge date would have been September 23, 1999.
Following his incarceration for the minimum term of his robbery sentence, Valentine was released on parole on June 29, 1993.5 As a result of an undisclosed parole violation and his status as an absconder, Valentine, who was returned to custody on September 23, 1994, was charged with 7 months and 1 day good time not earned and 22 days for absconding, which time was added to his minimum discharge date. Therefore, Valentine‘s new minimum discharge date was calculated as being May 17, 2000.
On February 3, 1999, Valentine was again released on parole and again violated the conditions thereof. Pending the Parole Board‘s review of his parole status, Valentine
Charge # 1: You did violate Special Condition # 5.4 of your Parole Agreement governing your release on parole in that on 2-3-99 you did not adhere to your 8:00 p.m. to 6:00 a.m. curfew.
Mitigation: Parolee [Valentine], through counsel, admitted the curfew violation occurring on the same day he was released from prison for the past four and one-half (4 1/2) years. Parolee indicated that he spent the night with his girlfriend.
....
Charge # 2: You did violate Special Condition # 5.3 of your Parole Agreement governing your release on parole in that on 2-4-99 you did consume alcohol.
Mitigation: Parolee admitted consumption of beer.
....
Charge # 3: You did violate Rule a of the WV Rules and Regulations governing your release on parole in that you failed to report in person to your parole officer on 2-4-99 as directed.
Dismissed by this hearing member.
Charge # 4: You did violate Rule e of the WV Rules and Regulations governing your release on parole in that you failed to maintain behavior that does not threaten the safety of yourself or others in that on 2-4-99 you fled the custody of your Parole Officer Deanna Lindsey, and Fairmont City Police Officer Brian Schuck.
Mitigation: Parolee admitted fleeing custody....
Based upon this information and additional evidence presented at the hearing, the presiding Parole Board hearing member found, as follows:
Recommendation: The fact that the Parolee violated the same day of his release is on its face, ridiculous. Moreover, subject previously violated parole in 1994. His new minimum discharge date appears to be 5/17/2000. It is doubtful that basic incarceration for another year will offer a cure for his alcoholism, even though the offer of reincarceration on Substance Abuse Unit 19 at PCC is possible and offer [sic] promise. What we see here is misconduct by an alcoholic more than criminal behavior. I believe the testimony of Echols Lambert is important.8 I also believe that Officer Lindsey had little choice but to institute revocation. In this matter, I choose to blunder on the side of mercy. Reluctantly, I recommend reinstatement of parole for Parolee Valentine predicated on an approved out-of-state home plan.
(Footnote added).
Upon the Parole Board‘s reinstatement of his parole, Valentine was required, as a condition of his parole, to complete an inpatient substance abuse treatment program.9 Following the completion of this program, Valentine was re-released on parole. The exact date of his release, however, is disputed by the parties. Valentine contends that he was not released until June 24, 1999, while the D.O.C. states that he was released on June 18, 1999. Thereafter, on September 3, 1999, Valentine was determined to have re-violated the conditions of his parole, and, on September 9, 1999, was again committed to custody. As a result of the ultimate revocation of his
Upon learning of his amended discharge date, Valentine petitioned this Court for a writ of habeas corpus. On December 29, 1999, we granted Valentine‘s petition and issued a rule to show cause.
II.
STANDARD FOR ISSUANCE OF WRIT
Procedurally, this case comes before us on Valentine‘s petition for post-conviction habeas corpus relief. Generally, “Habeas Corpus is a suit wherein probable cause therefor being shown, a writ is issued which challenges the right of one to hold another in custody or restraint.” Syl. pt. 4, Click v. Click, 98 W.Va. 419, 127 S.E. 194 (1925). Accord Syl. pt. 4, State ex rel. Roach v. Dietrick, 185 W.Va. 23, 404 S.E.2d 415 (1991) (“‘A writ of habeas corpus ad subjiciendum will lie to effect the release of one imprisoned in the State Penitentiary without authority of law.’ Syllabus Point 1, State ex rel. Vandal v. Adams, 145 W.Va. 566, 115 S.E.2d 489 (1960).“); Tasker v. Griffith, 160 W.Va. 739, 742, 238 S.E.2d 229, 231 (1977) (“Habeas corpus lies to test the legality of the restraint under which a person is detained.“); Syl. pt. 1, State ex rel. Tune v. Thompson, 151 W.Va. 282, 151 S.E.2d 732 (1966) (“The sole issue presented in a habeas corpus proceeding by a prisoner is whether he is restrained of his liberty by due process of law.“).
With respect to the instant petition,
Any person convicted of a crime and incarcerated under sentence of imprisonment therefor who contends that there was such a denial or infringement of his rights as to render the conviction or sentence void under the Constitution of the United States or the Constitution of this State, or both, or that the court was without jurisdiction to impose the sentence, or that the sentence exceeds the maximum authorized by law, or that the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under the common-law or any statutory provision of this State, may, without paying a filing fee, file a petition for writ of habeas corpus ad subjiciendum, and prosecute the same, seeking release from such illegal imprisonment, correction of the sentence, the setting aside of the plea, conviction and sentence, or other relief, if and only if such contention or contentions and the grounds in fact or law relied upon in support thereof have not been previously and finally adjudicated or waived in the proceedings which resulted in the conviction and sentence, or in a proceeding or proceedings on a prior petition or petitions filed under the provisions of this article, or in any other proceeding or proceedings which the petitioner has instituted to secure relief from such conviction or sentence....
When considering whether such a petition requesting post-conviction habeas corpus relief has stated grounds warranting the issuance of the writ, courts typically are afforded broad discretion. See
III.
DISCUSSION
The issue presented for our resolution in the instant proceeding is whether an individual, who has been charged with violating the conditions of his/her parole and who is detained in a county jail pending a parole revocation proceeding, is entitled to receive good time credit for the period of his/her detention. Inherent in this query also is the presumption that said individual‘s parole status ultimately is revoked, thus requiring him/her to serve further time in a correctional facility, which term of confinement may be reduced by such good time credit.10
“The provisions of
Because the governing law is a legislative enactment, the intent of the Legislature in establishing good time is essential to its understanding and application. Good time “is designed to advance the goal of improved prison discipline.” Woods v. Whyte, 162 W.Va. 157, 160, 247 S.E.2d 830, 832 (1978) (citation omitted) (footnote omitted). More specifically, “[t]he purpose of awarding good time credit is to encourage not only rehabilitative efforts on the part of the inmate by encouraging the industrious and orderly, but also to aid prison discipline by rewarding the obedient.” Woodring v. Whyte, 161 W.Va. 262, 275, 242 S.E.2d 238, 246 (1978). For this reason, then, it is well-accepted that the governing statute,
Thus, the brief answer to Mr. Valentine‘s query is no: “[a] prisoner is not entitled to good time credits while on parole.” Syl. pt. 11, Woodring, 161 W.Va. 262, 242 S.E.2d 238. In fact, such an allowance is expressly prohibited by
Despite this definite statement of the prohibition of awarding good time credit to parolees, good time credit nevertheless remains “a substantive right.” Syl. pt. 7, in part, Woodring, 161 W.Va. 262, 242 S.E.2d 238. Cf. Syl. pt. 8, in part, id. (“Commutation of time for good conduct is a right created by the Legislature. It is not recognized as a fundamental right or a part of a constitutional freedom.“). Likewise, the context within which Valentine seeks credit for his good behavior, i.e., a parole revocation proceeding, also warrants special treatment. “A parole revocation hearing, being a critical proceeding at which the accused parolee‘s liberty is in jeopardy, must be conducted within the protections afforded by the state and federal constitutions.” Syl. pt. 1, Dobbs v. Wallace, 157 W.Va. 405, 201 S.E.2d 914 (1974).
Among the duties of the Parole Board in ensuring that an individual‘s rights are not unconstitutionally trammeled are its obligations to “obey legislation and ... [to] act in a way which is not unreasonable, capricious, or arbitrary.” Syl. pt. 3, in part, State ex rel. Eads v. Duncil, 196 W.Va. 604, 474 S.E.2d 534 (1996). Accord Brewer v. Boles, 261 F.Supp. 920, 921 (N.D.W.Va.1967) (recognizing that “[t]he Board of Parole must obey applicable legislation but otherwise it is only required to perform its functions fairly, under fair procedures[; i]t may not act unreasonably, capriciously or arbitrarily” (quoting Jones v. Rivers, 338 F.2d 862, 874 (4th Cir.1964))).
Of particular relevance to the proceedings underlying the instant petition is the Parole Board‘s responsibility to provide “a parolee [who] is under arrest for violation of the conditions of his[/her] parole ... a prompt and summary hearing....”
the Board shall convene a revocation hearing only if it receives the aforementioned report12 and transcript13 no later than the thirty-fifth (35) day after either the date on which the parolee received written notice of the charges or the date on which the parolee was incarcerated, whichever occurred sooner. However, the running of the thirty-five (35) day period shall be stopped by:
(1) Any continuance which is sought and obtained by counsel for the parolee before the preliminary revocation hearing, or
(2) The pendency of any criminal charge which is also the basis of any charge of a violation of parole conditions. This subsection shall not be applied to stop the running of the thirty-five (35) day period for any other charge, or
(3) The absence of the parolee from the boundaries of this State for whatever reason, or
(4) The escape or absconding of the parolee [sic] custody of a jail or the supervision of the Department.14
The Department shall make a written statement to the Board explaining the facts and circumstances of any of the four (4) aforementioned causes for stopping the running of the thirty-five (35) day period.
While these dates certain vary, the clear import of the Legislature is that to be “prompt,” a parole revocation hearing must be held within thirty to thirty-five days of the qualifying operative criterion unless an exception operates to toll the thirty-five day limitation. Cf. Larson v. McKenzie, 554 F.2d 131 (4th Cir.1977)
(per curiam) (suggesting, in case of multiple convictions and sentences, that execution of parole violator‘s warrant within maximum term of first underlying sentence satisfies notions of fundamental fairness). Furthermore, it also appears that the parole revocation procedure contemplates both a preliminary hearing and a final parole revocation hearing. In the proceedings underlying the instant petition, however, Valentine waived his right to such a preliminary hearing on the day that he received the notice of the charges against him, February 11, 1999. Therefore, in the absence of a preliminary hearing, we will proceed to consider whether the Parole Board timely conducted Valentine‘s final parole revocation hearing.
First, we note that none of the enumerated exceptions which, if applicable, would toll the running of the thirty-five day period, are relevant to the facts we have before us. See
Pursuant to
Alternatively,
In any event, it is quite apparent that the final revocation hearing in the instant proceeding was untimely and that it was not “prompt” as contemplated by
IV.
CONCLUSION
Because the Parole Board failed to abide by the enumerated time limits within which to hold Valentine‘s final revocation hearing, we conclude that, if his conduct so warranted, he was entitled to receive good time credit for the additional time he was detained in the Marion County Jail as a result of the Parole Board‘s delay. Therefore, we grant as moulded the requested writ of habeas corpus
Writ granted as moulded.
MAYNARD, Chief Justice, dissenting:
I dissent because I believe the petitioner was accorded a prompt parole revocation hearing under
In the instant case, the petitioner‘s parole revocation hearing was held eight days after the expiration of the 35-day period set forth in
Second, in those instances where a parolee is incarcerated and is not given a prompt hearing, I believe the proper remedy is to seek a writ of mandamus to compel a hearing. See State ex rel. Carper v. W.Va. Parole Bd., 203 W.Va. 583, 509 S.E.2d 864 (1998) (petitioner sought a writ of mandamus to compel the state parole board to review him for parole on an annual basis). Because such a remedy exists, it is not necessary for this Court to create from whole cloth a right to good time credit when a revocation hearing is not promptly held.
Under our law, “[a] prisoner is not entitled to good time credits while on parole.” Syllabus Point 11, Woodring v. Whyte, 161 W.Va. 262, 242 S.E.2d 238 (1978). Also,
Because the petitioner received a prompt revocation hearing and is not entitled to good time credits while on parole, I would have denied the petitioner the relief which he seeks. Accordingly, I dissent.