STATE OF WEST VIRGINIA EX REL. SCOTT PHALEN v. CRAIG ROBERTS, Superintendent, South Central Regional Jail
No. 20-1023
Supreme Court of Appeals of West Virginia
June 16, 2021
January 2021 Term. FILED released at 3:00 p.m. EDYTHE NASH GAISER, CLERK
Petition for a Writ of Habeas Corpus Original Jurisdiction WRIT GRANTED
Submitted: April 14, 2021 Filed: June 16, 2021
John Sullivan, Esq. Ronni Sheets, Esq. Kanawha County Public Defender Office Charleston, West Virginia Counsel for Petitioner
Patrick Morrisey, Esq. West Virginia Attorney General Briana J. Marino, Esq. Andrea Nease Proper, Esq. Assistant Attorneys General Counsel for Respondent
JUSTICE HUTCHISON delivered the Opinion of the Court.
CHIEF JUSTICE JENKINS dissents and reserves the right to file a dissenting opinion.
JUSTICE ARMSTEAD dissents and reserves the right to file a dissenting opinion.
- “‘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).” Syl. Pt. 1, State ex rel. Crupe v. Yardley, 213 W. Va. 335, 582 S.E.2d 782 (2003).
- “‘The constitutionality of a statute is a question of law which this Court reviews de novo.’ Syl. Pt. 1, State v. Rutherford, 223 W. Va. 1, 672 S.E.2d 137 (2008).” Syl. Pt. 2, State v. James, 227 W. Va. 407, 710 S.E.2d 98 (2011).
- “‘Where the language of a statute is plain and unambiguous, there is no basis for application of rules of statutory construction; but courts must apply the statute according to the legislative intent plainly expressed therein.’ Syllabus Point 1, Dunlap v. State Compensation Director, 149 W. Va. 266, 140 S.E.2d 448 (1965).” Syl. Pt. 7, State v. Mills, 243 W. Va. 328, 844 S.E.2d 99 (2020).
- “‘Where the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation.’ Syllabus Point 2, Crockett v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 (1970).”
- “It is not for this Court arbitrarily to read into a statute that which it does not say. Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted.” Syl. Pt. 11, Brooke B. v. Ray C., 230 W.Va. 355, 738 S.E.2d 21 (2013).
West Virginia Code § 62-12-13(b)(1)(A) does not exclude from parole eligibility inmates who are incarcerated for violating the conditions of their supervised release pursuant toWest Virginia Code § 62-12-26 .- “Under Ex post facto principles of the United States and West Virginia Constitutions, a law passed after the commission of an offense which increases the punishment, lengthens the sentence or operates to the detriment of the accused, cannot be applied to him.” Syl. Pt. 1, Adkins v. Bordenkircher, 164 W. Va. 292, 262 S.E.2d 885 (1980).
- In order to avoid the constitutional prohibition against ex post facto laws,
West Virginia Code § 15A-4-17(a) [2021] shall not be applied to those inmates who committed the underlying crimes for which they are incarcerated pursuant toWest Virginia Code § 62-12-26 prior to April 30, 2021, the effective date of the statute, regardless of any contrary language contained therein.
HUTCHISON, Justice:
West Virginia law provides that any inmate may be paroled after serving one-fourth of a definite term sentence.
I. Factual and Procedural Background
The relevant facts of this case are gleaned from representations made in the parties’ briefs and the scant appendix record. In 2011, petitioner was indicted by a Kanawha County Grand Jury on the offenses of first-degree sexual assault, first-degree sexual abuse, sexual abuse by a parent, and incest. The indictment alleged that petitioner‘s crimes occurred “on or about December 20, 2010.” He pled guilty to one count of first-degree sexual abuse, and, on February 14, 2012, he was sentenced to one to five years in prison, pursuant to
of supervised release [is] an inherent part of the sentencing scheme for certain offenses enumerated in
of his or her definite term sentence[.]” After serving one fourth of his definite ten-year term, petitioner appeared before the Parole Board, which determined that petitioner should be released on parole.3 Petitioner was released on parole on June 29, 2020.
issuance of “an order of arrest for inmates who have been released from the custody of the [now DOCR] due to[,] [inter alia,] a clerical error[] [or] mistake”).6
On December 23, 2020, petitioner filed a petition for a writ of habeas corpus with this Court seeking reinstatement to parole. Following the filing of respondent‘s summary response to the petition, we issued a rule to show cause and scheduled oral argument for April 14, 2021.
While this case was pending, during the 2021 Legislative session, Senate Bill 713 (“S.B. 713”) was introduced to amend the good time statute,
October 21, 2020,” is entitled to the good time awarded or earned. See
Senate Bill 713 was passed by the Legislature on April 7, 2021, and approved by the Governor twelve days later. The Legislature made S.B. 713 effective on April 30, 2021. In light of this new legislation, which respondent states is simply a codification of the DOCR‘s “stance” in Policy Directive 151.06,8 this Court directed the parties to file supplemental briefs addressing the impact of S.B.
Oral argument was conducted on April 14, 2021, and the ordered supplemental briefing was filed thereafter. As discussed in more detail below, respondent avers that pursuant to S.B. 713, petitioner falls squarely within the category of inmates
excluded from receiving good time because he is incarcerated for violating the conditions of his supervised release pursuant to
II. Standard for Issuance of a Writ of Habeas Corpus
This case is before us on petitioner‘s original petition for a writ of habeas corpus. Pursuant to
Furthermore, we have explained that, 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).” Syl. Pt. 1, State ex rel. Crupe v. Yardley, 213 W. Va. 335, 582 S.E.2d 782 (2003). Accord 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.”).
In determining whether a writ shall issue, we are also asked to determine whether a certain provision of S.B. 713 violates the constitutional prohibition against ex post facto laws. “‘The constitutionality of a statute is a question of law which this Court reviews de novo.’ Syl. Pt. 1, State v. Rutherford, 223 W. Va. 1, 672 S.E.2d 137 (2008).” Syl. Pt. 2, State v. James, 227 W. Va. 407, 710 S.E.2d 98 (2011). With these standards and considerations in mind, we proceed to examine the petition before us.
III. Discussion
Our determination of whether petitioner should be granted habeas relief rests on the resolution of two questions: first, whether petitioner, as an inmate incarcerated for violating the conditions of his supervised release, was eligible for parole when he was released on June 29, 2020; and second, whether S.B. 713 may be applied to petitioner to exclude him from being awarded or earning good time after October 20, 2020.9
While each question requires its own analysis, we observe, as a threshold matter, that respondent relies on the same underlying argument with respect to both – that, pursuant to this Court‘s decision in State v. Hargus, the term of incarceration that petitioner is currently serving is not a “sentence” but, rather, is a “sanction” that was imposed upon him by the sentencing court for violating the conditions of his supervised release. As such, respondent argues, petitioner does not fall within the purview of either the parole eligibility or good time statute because each requires that the inmate be serving a “sentence” in order for the statute to apply. According to respondent, the DOCR policy directives that were issued following petitioner‘s release on parole and that precipitated his arrest and reincarceration followed from
excluded both from being eligible for parole and from being granted commutation from his “sanction” for good conduct by the plain and unambiguous language of the relevant statutes, which only apply to an inmate who is serving a “sentence.” We disagree.
At issue in Hargus was “the constitutionality of the portion of
In determining that the challenged statutory provision did not violate the defendants’ constitutional right to due process, we looked to Johnson v. United States, 529 U.S. 694 (2000), which addressed a similar federal statute, and observed that the United States Supreme Court “attributed post-revocation penalties to the defendant‘s original
or modify, reduce, or enlarge the conditions of supervised release”; “[r]evoke a term of supervised release and require the defendant to serve in prison all or part of the term of supervised release”; or “[o]rder the defendant to remain at his or her place of residence during nonworking hours”).
conviction and not to a violation of the conditions of supervised release.” Hargus, 232 W. Va. at 741, 753 S.E.2d at 899. Quoting Johnson, we explained that although violations of the conditions of supervised release
“often lead to reimprisonment, the violative conduct need not be criminal and need only be found by a judge under a preponderance of the evidence standard, not by a jury beyond a reasonable doubt. Where the acts of violation are criminal in their own right, they may be the basis for separate prosecution, which would raise an issue of double jeopardy if the revocation of supervised release were also punishment for the same offense. Treating postrevocation sanctions as part of the penalty for the initial offense, however (as most courts have done), avoids these difficulties.”
Hargus, 232 W. Va. at 741, 753 S.E.2d at 899 (quoting Johnson, 529 U.S. at 700). We thus “construe[d] a revocation proceeding under
conviction. It is not an additional penalty resulting from the defendant‘s initial conviction.” Id. at 743, 753 S.E.2d at 901 (emphasis added).13 See United States v. Ketter, 908 F.3d 61, 65 (4th Cir. 2018) (“‘[T]he term of supervised release, the revocation of that term, and any additional term of imprisonment imposed for violating the terms of the supervised release are all part of the original sentence.‘” (internal citations omitted)).
We find respondent‘s interpretation of Hargus to be sorely misguided. It is abundantly clear that Hargus made no distinction between a “sentence” and a “sanction” but, instead, used those terms interchangeably and without bestowing any special significance upon either of them with respect to post-revocation incarceration, parole eligibility, good time, or otherwise. As further support that respondent completely misapprehends our holdings in that case, he fails to recognize that Hargus proceeded to examine the defendants’ individual “post-revocation sentences” to determine whether they violated the disproportionality principle that is implicit in the cruel and unusual punishment clause of the state and federal constitutions. See id. at 743, 745, 753 S.E.2d at 901, 903 (noting that “Mr. Hargus violated a condition of his supervised release [, and] . . . [a]s a result, [he] was sentenced to a post-revocation period of incarceration of five years” and,
similarly, that after Mr. Lester knowingly violated a condition of his supervised release, it was revoked, “and he was sentenced to two years of incarceration” (emphasis added)).14
Clearly, respondent‘s attempt to characterize post-revocation incarceration as anything other than a “sentence” is not supported by our decision in Hargus or elsewhere in the law and cannot stand. As a result, to the extent that the DOCR policy directives are premised upon this faulty interpretation of Hargus as justification for petitioner‘s arrest and reincarceration, they are unenforceable.
We now proceed to consider whether petitioner, as an inmate who is serving a sentence for violating the conditions of his supervised release pursuant to
Parole Eligibility
An inmate‘s eligibility for parole is governed by
(b) Any inmate of a state correctional institution is eligible for parole if he or she:
(1)(A) Has served the minimum term of his or her indeterminate sentence or has served one fourth of his or her definite term sentence, as the case may be[.]
(Emphasis added).15
Petitioner argues that he satisfied the statute‘s objective criteria for parole eligibility in
Initially, we observe that the “[t]he primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.” Syl. Pt. 1, Smith v. State Workmen‘s Comp. Comm‘r, 159 W. Va. 108, 219 S.E.2d 361 (1975). However, “‘[w]here the language of a statute is plain and unambiguous, there is no basis for application of rules of statutory construction; but courts must apply the statute according to the legislative intent plainly expressed therein.’ Syllabus Point 1, Dunlap v. State Compensation Director, 149 W. Va. 266, 140 S.E.2d 448 (1965).” Syl. Pt. 7, State v. Mills, 243 W. Va. 328, 844 S.E.2d 99 (2020). We find
In plain language,
Accordingly, we hold that
Senate Bill 713 and Good Time
We now address whether S.B. 713, which became effective on April 30, 2021, may be applied to exclude petitioner from being granted good time. S.B. 713 amended
(a) All adult inmates placed in the custody of the Commissioner of the Division of Corrections and Rehabilitation pursuant to a term of court-ordered incarceration for a misdemeanor or felony, except those committed pursuant to § 25-4-1 et seq. and § 62-12-26 of this code, shall be granted commutation from their sentences for good conduct in accordance with this section: Provided, That nothing in this section shall be considered to recalculate the “good time” of inmates currently serving a sentence or of giving back good time to inmates who have previously lost good time earned for a disciplinary violation: Provided, however, That as of the effective date of the amendments to this section enacted during the regular
session of the Legislature, 2021, an inmate who had good time calculated into his or her release date prior to October 21, 2020, is entitled to the benefit of the good time awarded or earned before that date, unless the good time was lost due to a disciplinary violation.
(Emphasis added).
Petitioner argues that, even if he is reinstated to parole, S.B. 713, if applied to him, would operate to increase his sentence by extending his maximum discharge date. See
This Court has recognized that the commutation from a prison sentence for good conduct is a substantial statutory right that is subject to legal protection.19 See Syl. Pt. 5, State ex rel. Williams v. Dep‘t of Mil. Affs. & Pub. Safety, Div. of Corr., 212 W. Va. 407, 573 S.E.2d 1 (2002) (“Good time credit is a valuable liberty interest protected by the due process clause,
It is well understood that “[u]nder Ex post facto principles of the United States and West Virginia Constitutions, a law passed after the commission of an offense which increases the punishment, lengthens the sentence or operates to the detriment of the accused, cannot be applied to him.” Syl. Pt. 1, Adkins v. Bordenkircher, 164 W. Va. 292,
revisit the argument here. And, because respondent relies exclusively on this argument, he does not address whether S.B. 713 violates constitutional ex post facto principles.
262 S.E.2d 885 (1980). Thus, “for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.” Weaver, 450 U.S. at 29 (footnote omitted); see also Lynce, 519 U.S. at 441; Collins v. Youngblood, 497 U.S. 37, 47 (1990). As the United States Supreme Court explained more fully in Weaver,
the ex post facto prohibition[] . . . forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred. Critical to relief under the Ex Post Facto Clause is not an individual‘s right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was
prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense.
Id. at 30-31. With respect to a statutory provision concerning the earning or awarding of good time, “‘[t]he critical issue . . . [is] . . . whether the standards by which defendant‘s date of release is to be determined have been altered to his detriment. In other words, . . . whether an inmate could earn more good time under the prior good time statute than he can under the present one.‘” Hasan, 176 W. Va. at 181, 342 S.E.2d at 146 (quoting In re Stanworth, 654 P.2d 1131, 1138 (Calif. 1982)).
In Adkins, sixteen inmates sought habeas corpus relief because a newly enacted good time statute was applied to their sentences even though their underlying crimes were committed prior to the effective date of the statute (May 1, 1978). 164 W. Va. at 293-94, 262 S.E.2d at 885-86. It was undisputed that, “under the former good time
statute, as applied, a prison inmate could earn more good time credit than under the [newly enacted] good time statute, and therefore was eligible for earlier release than a similarly situated inmate classified under the new system” Id. at 294, 262 S.E.2d at 886. See id. at 299, 262 S.E.2d 888-89 (further explaining that “the potential sentences of some of the petitioners were, in effect, lengthened through the application to them of the less beneficial terms of the new good time statute. This lengthening results from applying the lower deduction rate of the new law to their sentences, thereby delaying their release date.”). Recognizing that “depriving a prisoner of the right to earn good conduct deductions . . . materially ‘alters the situation of the accused to his disadvantage[,]‘”21 we held that in order to avoid ex post facto principles, the newly enacted good time statute “must be construed to apply to those persons who committed offenses after May 1, 1978, and those presently incarcerated . . . for crimes committed prior to May 1, 1978, are entitled to good time credit as calculated under” the old statute. Id. at syl. pt. 2.
We find Adkins to be directly on point. “For purposes of assessing constitutional rights under the ex post facto clause of any penal statute intended to punish a person, the triggering date is the date of the offense.” State v. Deel, 237 W. Va. 600, 608, 788 S.E.2d 741, 749 (2016). Senate Bill 713, on its face, applies to exclude all adult inmates who are committed pursuant to
commutation from their sentences for good conduct except that, as of the effective date of the 2021 amendments (i.e., April 30, 2021), “an inmate who had good time calculated into his or her release date prior to October 21, 2020, is entitled to the benefit of the good time awarded or earned before that date, unless the good time was lost due to a disciplinary violation.” Senate Bill 713‘s effect, therefore, is to preclude all inmates who are incarcerated for violating a condition of their supervised release from receiving good time after October 20, 2020, regardless of when their underlying crimes were committed. We find this provision to be an overt violation of the prohibition against ex post facto laws.
Accordingly, we hold that, in order to avoid the constitutional prohibition against ex post facto laws,
Based upon all of the foregoing, we grant petitioner habeas relief, and direct respondent to reinstate petitioner to parole and, further, to calculate his good time based upon the statute that was in effect at the time petitioner‘s underlying crime was committed.
Writ granted.
for offenses committed on or after the effective date of the statute may be excluded from being granted commutation from their sentences for good conduct in accordance with
Notes
(a) Notwithstanding any other provision of this code to the contrary, any defendant convicted [of] . . . a felony violation of the provisions of
§ 61–8B–1 et seq. , of this code shall, as part of the sentence imposed at final disposition, be required to serve, in addition to any other penalty or condition imposed by the court, a period of supervised release of up to 50 years: Provided, That the period of supervised release imposed by the court pursuant to this section . . . shall be no less than 10 years: . . . And Provided further, That pursuant to the provisions of§ 62-12-26(h) of this code, a court may modify, terminate, or revoke any term of supervised release imposed pursuant to§ 62-12-26(h) of this code.
Id. We observe that the parties do not reference this version of the statute in their briefs, but, instead, cite to the 2018 version of the good time statute,All adult inmates now in the custody of the commissioner of corrections, or hereafter committed to the custody of the commissioner of corrections, except those committed pursuant to article four, chapter twenty-five of this code, shall be granted commutation from their sentences for good conduct in accordance with this section.