*1 say I am authorized to Justice joins in opinion.
McGRAW Virginia,
STATE of West Plaintiff
Below, Appellee, RICHARDS,
Michael Defendant Von
Below, Appellant.
No. 26349.
Supreme of Appeals Court Virginia.
Submitted Oct. 1999.
Decided Dec. 1999.
Concurring Opinion of Chief Justice Jan.
Starcher *2 upon the revocation original
dant’s policy arguments favor- of Valid notwithstanding, ing flexibility in this area expressly that the Act forecloses we conclude action. such I. AND
FACTUAL PROCEDURAL
BACKGROUND pleaded guilty to two Michael Richards robbery under Va. aggravated counts W. of (1961), sentenced in Code 61-2-12 18-year to two October 1996 concurrent January imprisonment. terms of of sen- filed a motion for reduction Richards 35(b), P. pursuant W. Va. R.Crim. seeking placement either youthful program as authorized circuit court set the Act. The sentence, original and aside Richards’ or- Anthony to the dered that he be committed for offenders Correctional Center (1975). pursuant Va.Code 25-4-6 to W. successfully pro- completed the Richards gram Anthony, and return to the at February 1998, was circuit court However, years probation. three less than probationary period, five into the months alleging petition a revocation sev- State filed of his en violations of conditions Cosenza, George Esq., William Mer- J. O. court revoked Richards’ Cosenza, tion.1 The circuit riman, Esq., Underwood & Merri- 30,1998, probation on and sentenced Attorneys October man, Virginia, West Parkersburg, 25-year him to concurrent terms.2 Rich- Appellant. for challenges court’s deci- ards now the lower General, McGraw, Jr., Attorney Darrell V. original his sion to increase sentence. General, Attorney Warfield, Deputy Dawn E. Charleston, Attorneys Ap- Virginia, II.
pellee. MeGRAW, DISCUSSION Justice: Act forth a The Youthful Offenders sets a determination of This case involves proce- comprehensive and set substantive Virginia’s Youthful Offender whether West (the “Act”), governing §§ dural rules Va.Code Act W. age
-12,
adult-jurisdiction
under the
a defen-
offenders
permits
trial court to increase
(1)
designated by
halfway
his
petition alleged
out
at
house
that Richards
was
1.
curfew;
(2)
company
was in the
after
individual he
officer.
had
instructed not to associ-
officer;
with; (3)
ate
consumed
lied to his
25-year
ap-
term
court chose the
The circuit
alcohol; (5)
marijuana;
was
used
parently
it was
maximum sentence
non-compliance
due to
removed
misbehavior
under
co-defendant could receive
Richards’
treatment
that he was
from substance-abuse
plea agreement.
his
required
complete
probation;
as a condition
refused to attend an additional treatment
discretionary
quently
twenty
grants
placed on
Va.Code
one. The Act
W.
(1975).3
authority
suspend
circuit courts to
to the
Richards contends
place
qualifying
prohibits
provision
a court from increas-
in a
rehabilitation at a
defendant
ing a defendant’s
sentence in the
*3
youthful-offender
Following
center.
success-
probation
agree
event
is revoked.4 We
completion
program,
ful
of the
the circuit Richards that
the circuit court’s final sen-
mandatory
place the
obligation
has a
to
court
§
tencing action violated
25-4-6.
probation. At all
defendant on
times rele-
appeal
“Where the issue on an
from
case,
specified
Act
that in the
vant to this
the
clearly
revoked,
question
the circuit court is
of law
subsequently
the
probation
event
is
statute,
involving
interpretation
or
an
of a
given
we
defendant “shall be
the sentence he
a de novo
apply
Syl. pt.
of
originally
have
received had he not
standard
review.”
would
A.L.,
1,
Chrystal R.M. v.
Charlie
been committed to the center and subse-
194 W.Va.
amendment,
facility by
3.Prior
to its
W. Va.Code
back to such
commissioner of
recent
the
institutions,
provided
§
public
proper
as follows:
if he deems it
for the
youth’s detention and rehabilitation.
judge
any
original
The
of
court with
criminal
added.)
(Emphasis
jurisdiction may suspend
the
of sen-
effectively
during
any
youth
plead-
This section was
rewritten
of
convicted of or
male
session,
offense,
legislative
the recent
see
W.
ing guilly
Va.
to a criminal
other than an
64,
provides,
part,
punishable by
imprisonment,
Acts ch.
who
and now
in relevant
offense
life
birthday
probation
event the
"[i]n
has attained his sixteenth
but has not
the
offender’s
is
revoked,
twenty-first birthday
subsequently
judge
impose
of
reached his
at the time
the
shall
the
crime,
young
the
the commission of the
and commit him
adult offender would have
custody
Virginia
originally
to the
of the West
commis-
received had
not been
the offender
public
assigned
subsequently placed
center
sioner of
institutions to be
to
committed to the
period
§
center. The
of confinement
the cen-
on
recent amendments
25-
in
months,
period
substantially
language
ter shall be for a
of six
or
12-6 did not
alter the
at
longer
by the
in
if it is deemed advisable
center
issue
this case.
superintendent,
any
period
but in
event such
of
If,
years.
not exceed
confinement shall
4.Richards
contends that the circuit court’s ac-
(1955),
opinion
superintendent,
§
the
of the
such male
tion also violates W. Va.Code 62-12-10
proves
person
part
an
states
be
unfit
remain
which
relevant
that when a defen-
center,
in such a
he shall be returned to the
dant violates the terms of
"the court
judge
imposi-
suspension
court which committed him to be dealt with
revoke the
event,
sentence,
according
impose
further
In such
the
tion or execution of
sentence if
law'.
may place
imposed,
court
him on
or sentence
none has been
and order that sentence
points
for
he
He
to the
him
the crime for which
has been con-
be executed.”
United States
discretion,
judge
Supreme
v. United
victed.
In his
the
allow
Court's decision
Roberts
264,
113,
States, 320
64 S.Ct.
construction.
must
that
legislature says
a
in a statute what it means
CONCLUSION
”
says
and means in a statute
it
what
there.’
Educ.,
stated,
judgment
For the reasons
Randolph County
Martin v.
Bd. of
County
hereby
W.Va.
414 the Circuit Court of Wood
is
(1995) (quoting
remanded,
Connecticut Nat’l Bank v.
reversed and
and the circuit court
suspension
The State also cites several
from
cases
other
or the
jurisdictions
support
argument
of its
that
impose any
might originally
sentence which
have
permit
25-4-6 can be construed to
Commonwealth,
imposed”);
been
Hord. v.
upon
of a harsher sentence
revocation of
(statute
(Ky.1970)
providing
S.W.2d 530
that
However,
markedly
tion.
these cases involved
upon
"may
revocation
trial court
statutory language,
clearly
different
autho-
impose any
might
sentence which
have been
Turner,
People
Ill.App.3d
rize such action:
449,
conviction”);
imposed
Appli-
at the time of
In re
599 N.E.2d
is sentence defendant Richards but his that violated directed to his aggravated robbery on were non-violent. the two offenses imprisonment, 18-year to be terms course, judge. I Of am not the concurrently. served sentencing judge And the is entitled to sub- my impression But stantial deference. with and remanded directions. Reversed put that the have defendant should participate did not SCOTT Justice months, so, jail for 6 again or and tried ease. decision in this probation. STONE, sitting by B. Judge ROBERT discretion, has Where as this temporary assignment. ease, long, long prison imposing sentences years generally like 18 should be reserved Justice, STARCHER, concurring: Chief people dangerous who are so that we 6, 2000) (Filed Jan. protected need from them. Our West Virginia taxpayers, ought not be required to fully majority’s legal I rea- agree with unnecessarily house non-violent offenders at separately I I soning. But write $20,000per year. Perhaps a cost of this was understanding why have hard time it made Richards, the case with Michael Von but it young sense defendant to 18 to sentence way doesn’t seem that to me from the record. taxpayers’ years expense. at the prison judge originally thought that Mi- The trial good enough
chael Richards was risk Von Anthony qualify to be sent Center. comply that he
There showed could
Unfortunately, the defendant did do not well