STATE of West Virginia, Plaintiff Below, Appellee, v. Ryan Farnsworth SCOTT, Defendant Below, Appellant.
No. 30692.
Supreme Court of Appeals of West Virginia.
Submitted April 15, 2003. Decided May 7, 2003.
585 S.E.2d 1
STARCHER, Chief Justice.
Davis, J., filed a dissenting opinion in which Maynard, J., joined.
STARCHER, Chief Justice.
In this appeal from the Circuit Court of Wood County, a young criminal defendant contends that he was improperly sentenced on two criminal convictions. The young defendant contends that the circuit court did not properly give him credit for the days he spent in pre-sentencing custody. The young defendant argues that the circuit court‘s sentencing order improperly deprived the defendant of an early appearance before the Parole Board.
As set forth below, we agree and reverse the circuit court‘s sentencing order.1
I.
Facts & Background
On February 28, 1998, 18-year-old appellant Ryan F. Scott cashed a check for $100.00 at a convenience store in Wood County, West Virginia. The check was one of several blank, personal checks stolen from Deborah K. Hansen. The clerk cashing the check recognized the appellant, and later gave a statement to the police.
A police officer presented evidence to a magistrate that the appellant had forged Ms. Hansen‘s signature on the stolen check, and the magistrate issued a warrant for the appellant‘s arrest on the felony charge of uttering.2 The police arrested the appellant on April 24, 1998, and a magistrate required the appellant to post a $5,000.00 bond before being released from custody. The appellant spent 14 days in jail before he was able to raise the funds to post the bond, and appears to have been released on May 8, 1998.
While the record is unclear as to the exact date, at some point in May 1998 the appellant engaged in a conspiracy with two other individuals to deliver marijuana to a prisoner in the local jail. Unbeknownst to the appellant, the local police drug task force discovered the marijuana delivery. In August 1998, the grand jury met, heard evidence from the police and issued an indictment charging the appellant with four felonies: illegally transporting a controlled substance onto the grounds of a jail;3 conspiracy to transport a controlled substance onto the grounds of a jail;4 delivering a controlled substance to a jail inmate;5 and conspiracy to deliver a controlled substance to a jail inmate.
The appellant was once again arrested, and spent another two days in the local jail before posting a $10,000.00 bond. The appellant appeared before the circuit judge on the indictment and pled not guilty to the four marijuana-related charges. The circuit judge then scheduled the appellant‘s trial for January 5, 1999.
Instead of having a trial, after meetings with his attorney and the prosecutor, the appellant agreed to plead guilty to some of the charges pending against him. The appellant agreed to plead guilty to uttering,6 and agreed to plead guilty to transporting a controlled substance onto the grounds of a jail. In response, the prosecuting attorney agreed to dismiss the remaining three charges involving the marijuana.
The circuit judge accepted the appellant‘s guilty pleas in open court, and in March 1999 the appellant was taken into custody, first by the local jail, and later by the Division of Corrections (“DOC“) for diagnostic testing to determine the proper sentence for the appellant‘s crimes. After receiving a diagnostic report from the DOC, in September 1999 the circuit judge held a hearing and decided to defer sentencing the appellant to prison.
Under the law, the circuit judge could have sentenced the appellant to a prison term of one to ten years for uttering,7 and one to five years for transporting the controlled substance into the jail.8 Alternatively, because the appellant was under the age of 23, the circuit judge had the option of sending the appellant to a rehabilitation program at the “young adult offender center” managed by the DOC.9 The circuit judge chose the latter option.
The appellant was placed into the young adult offender rehabilitation рrogram at the Anthony Correctional Center near White Sulphur Springs. The appellant performed well in this program, graduating at the top of his class and receiving the honor of valedictorian. He was released from custody and returned home to Wood County on April 26, 2000. The circuit judge then entered an order placing the appellant on probation for a term of two years, and certain conditions were imposed.
Because of these repeated violations by the appellant of the conditions of his probation, the appellant‘s probation officer filed a motion with the circuit judge to revoke the appellant‘s probation. The appellant was arrested and placed in jail, and subsequently admitted to the circuit judge that he had violated the terms and conditions of his probation. By this time, the appellant had spent a total of 567 days in incarceration.
On February 14, 2001, the circuit judge refused a request by the appellant that he again be released on probation. Instead, the circuit judge entered an order imposing a sentence of one to ten years in the West Virginia Penitentiary for the offense of uttering, and one to five years for the offense of transporting a controlled substance onto the grounds of a jail. The circuit judge also ordered that the two sentences were to run consecutively, back-to-back (as opposed to concurrently, or at the same time)—a total sentence of two-to-fifteen years.
In the sentencing ordеr, the circuit judge gave the appellant credit for the 567 days previously spent in the local jail or the DOC‘s custody. However, the circuit judge split the credit for those days unevenly between the two sentences. The appellant was given 565 days credit towards the uttering charge, and only two days credit towards the transporting charge.
The appellant now appeals the circuit judge‘s sentencing order.
II.
Standard of Review
At the outset, we establish a “standard of review” to guide our deliberations regarding the parties’ arguments. The parties’ arguments ask us to interpret a section of the Youthful Offender Act,
At issue is a “penal” statute, a law that imposes “a penalty, fine or punishment for certain offenses of a public nature or wrongs committed against the state.” Black‘s Law Dictionary 1020 (5th Ed.1979). This Court has repeatedly stated that penal statutes are construed against the State and in favor of a defendant. For example, in Syllabus Point 3 of State ex rel. Carson v. Wood, 154 W.Va. 397, 175 S.E.2d 482 (1970), we stated that “[p]enal statutes must be strictly construed against the State and in favor of the defendant.” See also, Syllabus Point 1, Myers v. Murensky, 162 W.Va. 5, 245 S.E.2d 920 (1978) (“Ambiguous penal statutes must be strictly construed against the State and in favor of the defendant.“); Syllabus Point 2, State v. Riley, 158 W.Va. 823, 215 S.E.2d 460 (1975) (“Penal statutes are strictly construed against the state and favorably for the defendant.“). “It is a general rule that a penal statute will not be extended by construction, but must be limited to cases clearly within its language and spirit.” Syllabus Point 1, State v. Larkin, 107 W.Va. 580, 149 S.E. 667 (1929).
With these standards in mind, we consider the parties’ arguments.
III.
Discussion
The parties dispute whether and how, under
We begin by fully setting out the parties’ arguments (arguments that are, frankly, comparable to a convoluted mathematics word problem). The appellant contends that the circuit judge erred by crediting virtually all of the appellant‘s time spent in incarceration against the appellant‘s uttering charge. The appellant argues that this division of time violates the Youthful Offender Act,
In the event the offender‘s probation is subsequently revoked, the judge shall impose the sentence the young adult offender would have originally received had the offender not been committed to the center and subsequently placed on probation. The court shall, however, give the offender credit on his or her sentence for the time spent in the center.
The appellant contends that under this statute, had he not been committed to the Anthony Correctional Center, he would have originally received a sentence of two-to-fifteen years in the penitentiary. The appellant states he would have been eligible to appear before the Parole Board after spending two years—or 730 days—in custody, to state his case.
The appellant, however, argues that the court‘s order actually mandated that the appellant spend more than two years in custody before being eligible to appear before the Parole Board. The circuit court‘s order essentially required that he first spend 565 days in custody for uttering, and then spend another 365 days (2 days credit plus an additional 363 days) in custody for transporting—a total of 930 days—before being eligible to appear before the Parole Board. The appellant therefore contends that by requiring the appellant to spend 200 additional days in custody before being eligible to see the Parole Board, the circuit court actually imposed a sentence greater than the sentence the appellant would have received if he had avoided the young adult offender program and gone directly to prison.
The State responds, however, that the appellant‘s sentence is lawful because it is identical to what the appellant would have received had he not participated in the young adult offender program. The Act only requires a judge to “impose the sentence the young adult offender would have originally received had the offender not been committed to the center[.]”
The State suggests that the appellant‘s argument over where the credit for time served should be applied has already been answered by this Court—and suggests the credit should be applied to the end of the sentence, not the beginning. The State argues that in the case of consecutive sentences, “[t]he maximum terms of the consecutive sentences ... must first be added together to determine the inmate‘s maximum dischаrge date. It is from this maximum discharge date that all presentence and good time deductions must be made in order to establish the inmate‘s minimum discharge date.” Echard v. Holland, 177 W.Va. 138, 143, 351 S.E.2d 51, 56-57 (1986). In other words, the State argues that the circuit judge properly gave the appellant credit for his 567 days spent in custody, but all of those days credited apply toward the aggregate of all terms imposed. The time credited reduces the appellant‘s maximum discharge date (fifteen years), not the appellant‘s minimum discharge date (two years). As a bureaucratic mechanism, for ease in calculation, the State suggests that the cir-
At oral argument, the parties disputed whether it is the circuit judge at the time of sentencing, or the Parole Board while a defendant is serving his or her sentences, that is empowered to apply a defendant‘s credit for time spent in incarceration toward the length of the defendant‘s sentence. We can quickly dispense with this dispute by noting that our research reveals that the Legislature places the duty to apportion credit for time served on the sentencing judge, in the sentencing order.
Whenever any person is convicted of an offense in a court of this State having jurisdiction thereof, and sentenced to confinement in jail or the penitentiary of this State ... such person may, in the discretion of the court ... be given credit on any sentence imposed by such court ... for the term of confinement spent in jail awaiting such trial and conviction.
While
The Double Jeopardy and Equal Protection Clauses of the West Virginia Constitution require that time spent in jail before conviction shall be credited against all terms of incarceration to a correctional facility imposed in a criminal case as a punishment upon conviction when the underlying offense is bailable.
The rule espoused in McClain was an expansion on our holding in Martin v. Leverette, 161 W.Va. 547, 244 S.E.2d 39 (1978), clarifying that time spent in jail must constitutionally be credited against any subsequent sentence. We stated, in Syllabus Point 1 of Martin v. Leverette:
The Double Jeopardy and Equal Protection Clauses of the West Virginia Constitution require that credit for time spent in jail, either pre-trial or post-trial, shall be credited on an indeterminate sentence wherе the underlying offense is bailable.
In sum, the circuit judge gives a criminal defendant credit for prior time spent in jail and thereby establishes the first eligibility date for the Parole Board to consider granting the defendant release on parole.
The State argues that parole is not a right, and that eligibility for parole does not guarantee the defendant‘s release from prison. We agree with this argument. As we stated in State v. Lindsey, 160 W.Va. 284, 291, 233 S.E.2d 734, 738-39 (1977), “One convicted of a crime and sentenced to the penitentiary is never entitled to parole.” See also, Wanstreet v. Bordenkircher, 166 W.Va. 523, 536, 276 S.E.2d 205, 213 (1981) (“[T]here is no automatic right to parole once the prisoner crosses the threshold of eligibility.“). “The decision to grant or deny parole is a discretionary evaluation by the [parole] board based on a prisoner‘s record and its expertise.” Tasker v. Mohn, 165 W.Va. 55, 67, 267 S.E.2d 183, 190 (1980). The State therefore seems to take the position that the circuit judge‘s order, by requiring the appellant to spend an additional 200 days in custody before being eligible to appear before the Parole Board, affected no substantial right of the appellant. We disagree.
The appellant in the instant case is not arguing he has a right to parole; instead, he argues that he has a right under the Youthful Offender Act to timely appear before the Parole Board and state his case. Our cases have concluded that the Parolе Board has a constitutional obligation to grant each prisoner eligible for parole “a timely and meaningful hearing, based on objective standards, followed by a decision sufficiently explained to allow a prisoner of ordinary intelligence to understand the basis of the Board‘s deci-
In several cases applying the statute under consideration in this case,
Where a criminal defendant has been placed on probation after successfully comрleting a program of rehabilitation under the Youthful Offenders Act,
W.Va.Code §§ 25-4-1 to-12 , and such probation is subsequently revoked, the circuit court has no discretion underW.Va.Code § 25-4-6 to impose anything other than the sentence that the defendant would have originally received had he or she not been committed to a youthful offender center and subsequently placed on probation.
Likewise, we made clear in the Syllabus to State v. Patterson, 170 W.Va. 721, 296 S.E.2d 684 (1982) that under
W.Va.Code, 25-4-6 , does not allow a trial court discretion to impose any less than the original sentence when a male10 defendant, who has served at a youth correctional facility, violates his probation agreement.
(Footnote added.)
Pulling these various points of law together, when
We therefore hold that where a criminal defendant has been placed on probation after successfully completing a program of rehabilitation at a young adult offender center under the Youthful Offenders Act,
The circuit judge‘s order in the instant case credited the appellant for his time spent in incarceration, all 567 days, but did so in a manner that altered his date of eligibility for parole. The circuit judge‘s order increased by 200 days the amount of time the appellant was required to spend in custody before being eligible to see the Parole Board compared to the amount of time the appellant would have spent in custody had he not been committed to a youthful offender center and subsequently placed on probation. The circuit judge‘s order thеrefore violates the spirit of
Conclusion
The circuit judge‘s sentencing order is reversed, and this case is remanded for the circuit judge to correct the sentencing order to comply with this opinion.11
Reversed and Remanded.
Justice DAVIS dissents and reserves the right to file a dissenting opinion.
Justice MAYNARD dissents and reserves the right to file a dissenting opinion.
DAVIS, J., dissenting.
Mr. Scott argues that all of his presentence credit for time served should have been apportioned between the two consecutive sentences imposed by the circuit court.1 He further asserts that the time served credit should be deducted from the minimum terms of incarceration. The majority has agreed with Mr. Scott and, by way of footnote 11 of the opinion, has suggested that the circuit court “allocate 365 days toward the first uttering count, and the remaining 202 days toward the transporting count.” For the reasons outlined below, I dissent from the majority‘s disposition of this issue.
The disposition of this case was controlled by the prior decision of this Court in Echard v. Holland, 177 W.Va. 138, 351 S.E.2d 51 (1986). In Echard, the defendant was sentenced in Ritchie County to a term
of five to eighteen years. He was also sentenced in Wood County to a term of five to twenty-three years. The Wood County sentence was ordered to run consecutively with the Ritchie County sentence. The defendant eventually filed a habeas corpus petition in circuit court challenging how good time credit2 was awarded him while in prison. The defendant alleged that his minimum discharge date had been incorrectly calculated because good timе credit was improperly being distributed between his consecutive sentences. The circuit court disagreed and dismissed the petition. The defendant appealed.
While the particular issue in Echard involved how good time credit was awarded, to resolve the issue of defendant‘s minimum discharge date, the Echard Court had to first determine the amount of credit earned by the defendant for time served prior to imposition of his two sentences.3 After determining the amount of credit for time served by the defendant prior to imposition of his two sentences, as well as the total amount of possible good time, the Court established the following formula for determining how credit was to be distributed when consecutive sentences are imposed:
The maximum tеrms of the consecutive sentences, determinate or indeterminate, must first be added together to determine the inmate‘s maximum discharge date. It is from this maximum discharge date that
all presentence and good time deductions must be made in order to establish the inmate‘s minimum discharge date.4
Echard, 177 W.Va. at 143, 351 S.E.2d at 56-57 (emphasis added).5
Under the decision in Echard, in cases involving consecutive sentences, credit for time served prior to sentencing is to be applied to and deducted from the aggregate of the maximum terms of the sentences. The ruling in Echard is consistent with the general rule throughout the country. See Endell v. Johnson, 738 P.2d 769, 771 (Alaska Ct.App.1987) (“[C]ourts of other jurisdictions ... have uniformly held that, when consecutive sentences are imposed for two or more offenses, periods of presentence inсarceration may be credited only against the aggregate of all terms imposed.“); State v. Tauiliili, 96 Hawai‘i 195, 29 P.3d 914, 918 (2001) (“[W]hen consecutive sentences are imposed, credit for presentence imprisonment is properly granted against only the aggregate of the consecutive sentence terms.“); Stephens v. State, 735 N.E.2d 278, 284 (Ind.Ct.App.2000) (“It is well-settled that where a person incarcerated awaiting trial on more than one charge is sentenced to concurrent terms for the separate crimes, [the law] entitles him to receive credit time applied against each separate term. However, where he receives consecutive terms he is only allowed credit time against the total or aggregate of the terms.“); State v. Anderson, 520 N.W.2d 184, 187 (Minn.Ct.App.1994) (“When аpplying credit to consecutive sentences, however, credit is applied only to the first sentence, since to do otherwise would constitute ‘double credit’
and defeat the purpose of consecutive sentencing.“); Syl. pt. 2, State v. Sanchez, 2 Neb.App. 1008, 520 N.W.2d 33 (1994) (“Credit for presentence incarceration is properly granted only against the aggregate of all terms imposed.“).6
Unfortunately, the majority opinion has attempted to overrule Echard without acknowledging that fact. The majority opinion, at first blush, appears to apply only to defendants who are initially placed at a youthful offender center. A closer look reveals that the opinion is not limited to that situation. This is true because, under Syllabus point 6 of the majority opinion, a defendant placed at such a center must be awarded time served “as if the defendant had not been committed to a young adult offender center.” In other words, such a defendant must be granted time served in the same manner as any other defendant with presentence time served. However, the syllabus point fails to explain exactly how credit for time served should be awarded. This is where the Court‘s prior decision in Echard should have been applied. Instead, however, the majority opinion chose to elaborate on the application of its syllabus point in footnote 11.7 This was improper for two reasons. First, footnote 11 does not follow the rule announсed in Echard, and is, therefore, simply wrong. Second, by providing instruction to the bar that is contrary to the existing law in this state, the majority has attempted to create new law in a footnote. A footnote is not the proper place to announce new law. “‘[N]ew points of law ... will be articulated through syllabus points as required by our state constitution.’
The least of the problems caused by the majority opinion will be aрpeals challenging the manner in which circuit courts apportion presentence time served. The greater problem will arise from defendants being released far too early from prison because of the imposition of credit for time served on the minimum terms of consecutive sentences. Because the majority opinion improperly attempts to create new law in a footnote, and because the legal principles explained in that footnote are contrary to the established law of this state and inconsistent with the rule followed by courts throughout the country, I respectfully dissent. I am authorized to state that Justice Maynard joins me in this dissenting opinion.