State of West Virginia ex rel. Scott Phalen v. Craig Roberts ( 2021 )

FILED
June 16, 2021
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2021 Term
_______________
No. 20-1023
_______________
STATE OF WEST VIRGINIA EX REL.
SCOTT PHALEN,
Petitioner
v.
CRAIG ROBERTS, Superintendent,
South Central Regional Jail,
Respondent
________________________________________________________
Petition for a Writ of Habeas Corpus
Original Jurisdiction
CORRECTED WRIT GRANTED
________________________________________________________
Submitted: April 30, 2021
Filed: June 16, 2021
John Sullivan, Esq. Patrick Morrisey, Esq.
Ronni Sheets, Esq. West Virginia Attorney General
Kanawha County Public Briana J. Marino, Esq.
Defender Office Andrea Nease Proper, Esq.
Charleston, West Virginia Assistant Attorneys General
Counsel for Petitioner 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.
SYLLABUS BY THE COURT
1. “‘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).
2. “‘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).
3. “‘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).
4. “‘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).”
5. “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).
i
6. 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 to West Virginia Code § 62-12-26.
7. “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.3d 885
(1980).
8. 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 to West Virginia
Code § 62-12-26 prior to April 30, 2021, the effective date of the statute, regardless of any
contrary language contained therein.
ii
HUTCHISON, Justice:
West Virginia law provides that any inmate may be paroled after serving one-
fourth of a definite term sentence. W. Va. Code § 62-12-13(b)(1)(A) [2021]. After serving
one-fourth of his ten-year definite term sentence for violating conditions of his supervised
release, Petitioner Scott Phalen was released on parole. However, he was arrested and
reincarcerated six months later because the Division of Corrections and Rehabilitation
(“DOCR”) determined that he had been released in error based upon an internal policy that
inmates who are incarcerated for violating the conditions of their supervised release are
neither eligible for parole pursuant to West Virginia Code § 62-12-13 nor entitled to receive
commutation from their sentences for good conduct (also referred to as “good time”)
pursuant to West Virginia Code § 15A-4-17. Petitioner seeks an original jurisdiction writ
of habeas corpus to direct Respondent Craig Roberts, Superintendent, South Central
Regional Jail, to restore him to parole. See W. Va. Const. Art. VIII, § 3; W. Va. Code § 53-
4-1 [1923].
Upon careful consideration of the parties’ briefs and oral arguments, the
appendix record, and the pertinent legal authority, including 2021 legislation enacted
following the filing of the instant petition that purports to preclude petitioner from being
granted good time after a certain date, and for the reasons set forth below, we grant
petitioner’s request for habeas relief as moulded.
1
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 West Virginia Code § 61-8B-7 [2006] (the first-degree sexual abuse
statute) followed by fifteen years of extended supervised release, pursuant to West Virginia
Code § 62-12-26(a). See Syl. Pt. 11, in part, State v. James, 227 W. Va. 407, 710 S.E.2d
1
98 (2011) (“The imposition of the legislatively mandated additional punishment of a period
West Virginia Code § 62-12-26 has been amended since petitioner committed the
1
underlying offense but neither party contends that any amendments to the statute would
materially impact or are otherwise relevant to petitioner’s request for habeas relief. For
ease of reference, therefore, we cite to the statute that is now in effect. West Virginia Code
§ 62-12-26(a) [2020] provides, in pertinent part, as follows:
(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.
2
of supervised release [is] an inherent part of the sentencing scheme for certain offenses
enumerated in West Virginia Code § 62-12-26.”). Petitioner discharged his prison sentence
on December 2, 2013, and then commenced the period of supervised release. See W. Va.
Code § 62-12-26(d) (“The period of supervised release imposed by the provisions of this
section shall begin upon the expiration of any period of probation, the expiration of any
sentence of incarceration or the expiration of any period of parole supervision imposed or
required of the person so convicted, whichever expires later.”).
West Virginia Code § 62-12-26(h)(3) provides that if a circuit court “finds
by clear and convincing evidence that the defendant violated a condition of supervised
release,” then the circuit court may revoke the defendant’s release and “require the
defendant to serve in prison all or part of the term of supervised release.” The circuit court
found that petitioner violated the conditions of his supervised release and, on June 9, 2017,
2
ordered that petitioner “be sentenced to confinement . . . for a determinate term of ten (10)
years” for the violation.
West Virginia Code § 62-12-13(b)(1)(A) [2021] provides that “[a]ny inmate
of a state correctional institution is eligible for parole if he or she . . . has served one fourth
West Virginia Code § 62-12-26(b) sets forth certain prohibited conduct for “[a]ny
2
person required to be on supervised release[.]” Further, West Virginia Code § 62-12-26(f)
provides that “[a] defendant sentenced to a period of supervised release shall be subject to
any or all of the conditions applicable to a person placed upon probation pursuant to the
provisions of § 62-12-9 . . . .” The parties do not explain, nor does the appendix record
reveal, in what way petitioner violated the conditions of his supervised release.
3
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.
In November of 2020, five months after petitioner’s release on parole, the
DOCR created new internal policy directives establishing that, among others, “sex
offenders and child/abuse neglect offenders” are neither eligible for parole nor shall receive
day-for-day good time for incarceration imposed for revocation of supervised release. On
4 5
December 7, 2020, the DOCR issued a warrant for petitioner’s arrest because, pursuant to
this new DOCR policy, petitioner had been released from custody on June 29, 2020, due
to a “clerical error” or “mistake.” See W. Va. Code § 62-8-8(a) [2007] (authorizing the
Like the supervised release statute (West Virginia Code § 62-12-26), the parole
3
eligibility statute, West Virginia Code § 62-12-13, has been amended numerous times since
petitioner committed the underlying offense of first-degree sexual abuse. Since the
commission of petitioner’s offense, the statute has consistently provided that an inmate is
eligible for parole after serving “one fourth of his or her definite term sentence[.]” The
parties do not contend that any of the amendments made to the statute since petitioner’s
crimes were committed are relevant to petitioner’s request for habeas relief. Therefore, for
ease of reference, we cite to the current version of the statute in this opinion.
See W. Va. Code § 15A-4-17(c) (providing that inmates “shall be granted one day
4
[of] good time for each day he or she is incarcerated”).
We note that while the DOCR policy precluding good time for incarceration
5
imposed pursuant to revocation of supervised release was a written policy (“Policy
Directive 151.06”), the similar policy concerning parole eligibility was not reduced to
writing. Further, very little explanation is given for the enactment of these policy directives
except for respondent’s general statement that, upon the establishment of the DOCR in July
of 2018, see generally West Virginia Code §§ 15A-3-1 through -18, the DOCR
Commissioner conducted a widescale review of good time and parole eligibility among the
prison population. The underlying reason for the review, however, is unclear.
4
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, West Virginia Code §
15A-4-17, in relevant part, to exclude inmates committed, pursuant to West Virginia Code
§ 62-12-26, for violating the conditions of their supervised release from being granted good
time except that “an inmate who had good time calculated into his or her release prior to
The December 7, 2020, arrest warrant did not identify the “clerical error” or
6
“mistake” that precipitated petitioner’s release from custody in June of 2020. And, before
this Court, respondent has given conflicting reasons for the issuance of the warrant. In his
initial summary response to petitioner’s petition for a writ of habeas corpus, respondent
states that the “clerical error” or “mistake” upon which the arrest warrant was issued was
that petitioner was not eligible for parole pursuant to the recently issued DOCR policy.
However, in his later-filed supplemental response to petitioner’s petition, respondent
states, without acknowledging the earlier justification given, that petitioner was released
on parole in error based upon the DOCR policy relative to good time. See Discussion infra.
5
October 21, 2020,” is entitled to the good time awarded or earned. See W. Va. Code § 15A-
4-17(a) [2021]. 7
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, this Court directed the parties to file
8
supplemental briefs addressing the impact of S.B. 713 on the issues raised in petitioner’s
habeas petition.
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
7
The statute governing good time was formerly codified at West Virginia Code §
28-5-27. The relevant good time provision in effect at the time petitioner’s crime was
committed was West Virginia Code § 28-5-27(a) [1984]. It provided:
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.
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, West Virginia Code § 15A-
4-17. Regardless, we note that neither West Virginia Code § 28-5-27(a) [1984] nor West
Virginia Code § 15A-4-17(a) [2018] excluded from its application inmates incarcerated for
violating the conditions of their supervised release. See Discussion infra.
See n. 5, supra.
8
6
excluded from receiving good time because he is incarcerated for violating the conditions
of his supervised release pursuant to West Virginia Code § 62-12-26. Thus, applying S.B.
713 to petitioner’s term of incarceration, and giving him credit for good time received prior
to October 21, 2020, as the statute provides, respondent states that S.B. 713 changes
petitioner’s minimum discharge date from May 1, 2027, to November 10, 2023. For his
part, petitioner argues that the retroactive application of S.B. 713 to his sentence precluding
him from being granted good time after October 20, 2020, violates constitutional ex post
facto principles and, insofar as it applies to inmates whose underlying offenses were
committed prior to the effective date of the statute, it is unconstitutional.
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 West Virginia Code § 53-4A-7(c) of the Post-Conviction Habeas
Corpus statute, “we are given broad powers in fashioning the form of relief accorded in a
habeas corpus proceeding.” State ex rel. McMannis v. Mohn, 163 W. Va. 129, 141, 254
S.E.2d 805, 811 (1979).
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)
7
(“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
This Court previously upheld West Virginia Code § 62-12-26 as constitutional
9
upon several challenges including cruel and unusual punishment, procedural due process,
and double jeopardy grounds. See State v. James, 227 W.Va. 407, 710 S.E.2d 98 (2011).
8
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 Hargus – specifically, he argues that, “[f]or a period of
10
incarceration to be a ‘sentence,’ a new case, with a new crime, new indictment, new plea
or trial by jury, and new final disposition would have to occur.” In contrast, respondent
argues, “a ‘sanction’ is an enforcement penalty for the violation of the terms and conditions
of the sentence already imposed for a previously adjudicated crime.” Respondent contends
that petitioner’s current term of incarceration falls into the latter category and, thus, he is
11
Although respondent contends that “many” of this Court’s opinions have
10
“acknowledged the distinctions between a ‘sanction’ and a ‘sentence[,]’” he fails to cite to
any case other than Hargus for this proposition.
Respondent also attributes the DOCR’s policy directives to the supervised release
11
statute itself. In a strained and very convoluted argument, respondent appears to contend
that because West Virginia Code § 62-12-26 gives the sentencing court wide discretion in
deciding whether to modify or revoke a term of supervised release and order the offender
to be incarcerated, the statute “provides for sanctions.” See W. Va. Code §§ 62-12-26(h)(2)
through (4) (providing that “[t]he court may” under certain conditions, “[e]xtend a period
of supervised release if less than the maximum authorized period was previously imposed
Continued . . .
9
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 W. Va. Code
§ 62-12-26 that permits the revocation of supervised release and additional incarceration
when a sex offender violates a condition of supervised release.” Id. at 739, 753 S.E.2d at
897. The Hargus defendants argued that West Virginia Code § 62-12-26(g)(3) (now § 62-
12-(h)(3)) violated their right to procedural due process because, under the statute, a
defendant’s supervised release can be revoked and he or she can be ordered to serve an
additional term of incarceration if a court finds a violation by clear and convincing
evidence. The defendants argued that a jury should be required to find guilt of a violation
beyond a reasonable doubt, “which is required for a finding of guilt in a criminal trial.” Id.
at 741, 753 S.E.2d at 899.
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”).
10
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 W. Va. Code § 62-12-26(g)(3) to be a
continuation of the prosecution of the original offense and not a new prosecution of
additional offenses.” Id. at 742, 753 S.E.2d at 900. 12
Also in Hargus, we rejected the defendants’ argument that the extended
supervision statute violates double jeopardy principles, reiterating that “a post-revocation
sanction simply is a continuation of the legal consequences of a defendant’s original crime.
In other words, it is part of a single sentencing scheme arising from the defendant’s original
Based upon the reasoning in Johnson, we determined that a revocation hearing
12
“does not require a finding of guilt by a jury beyond a reasonable doubt” and “the fact that
a defendant’s supervised release may be revoked and additional incarceration imposed
based upon the circuit court’s finding by clear and convincing evidence that a defendant
violated the terms of his supervised release does not violate due process principles.”
Hargus, 232 W. Va at 742, 753 S.E.2d at 900.
11
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,
Thus, in syllabus point seven of Hargus, we held that West Virginia Code § 62-
13
12-26(g)(3), “which provides for additional sanctions including incarceration, upon
revocation of a criminal defendant’s period of supervised release,” does not violate the
prohibition against double jeopardy. Id. at 743, 753 S.E.2d at 901.
12
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 West Virginia
Code § 62-12-26, was eligible for parole when he was released on June 29, 2020, and,
further, whether S.B. 713 may be applied to him so as to exclude him from being granted
good time after October 20, 2020. We will consider each in turn.
Furthermore, since Hargus, we have applied various aspects of that decision to
14
other cases and, in so doing, have consistently considered the offenders’ post-revocation
incarcerations as “sentences.” See State v. David T., No. 19-0778, 2020 WL 6482740 (W.
Va., Nov. 4, 2020) (memorandum decision); State v. Payne, No. 17-0195, 2018 WL
1444287 (W. Va., March 23, 2018) (memorandum decision); State v. Winning, No. 17-
0921, 2018 WL 4944416 (W. Va., Oct. 12, 2018) (memorandum decision); State v. Parker-
Boling, No. 16-1193, 2017 WL 5629689 (W.Va., Nov. 22, 2017) (memorandum decision);
State v. Roger G., No. 14-1200, 2015 WL 5125486 (W. Va., Aug. 31, 2015) (memorandum
decision).
13
Parole Eligibility
An inmate’s eligibility for parole is governed by West Virginia Code § 62-
12-13. The parties focus specifically on whether petitioner meets the requirements of West
Virginia Code § 62-12-13(b)(1)(A), which states:
(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 that he is “[a]ny inmate” who “has served one fourth of his definite term
sentence,” and that, following a hearing before the Parole Board, he was properly granted
parole in June 2020. He contends that West Virginia Code § 62-12-13(b)(1)(A) is clear and
unambiguous in that it encompasses “any” inmate and does not except from its application
inmates who are incarcerated for violating the conditions of their extended supervised
release. We agree.
16
West Virginia Code § 62-12-13 includes additional requirements for parole
15
eligibility that are not alleged to be at issue in petitioner’s case.
In that respondent’s entire argument hinges on “whether [p]etitioner’s current term
16
of incarceration is defined as a ‘sentence’ or a ‘sanction,’” he effectively concedes that, if
petitioner is determined to be serving a “sentence,” he is eligible for parole under West
Virginia Code § 62-12-13(b)(1)(A).
14
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 West Virginia Code § 62-12-13(b)(1)(A) to be free
from ambiguity. “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).
In plain language, West Virginia Code § 62-12-13(b)(1)(A) provides that
“any inmate . . . is eligible for parole if he or she . . . has served one-fourth of his or her
definite term sentence.” This provision does not exclude inmates who are serving sentences
for violating the conditions of their supervised release pursuant to West Virginia Code §
62-12-26. We have often said that “[i]t 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).
15
Accordingly, we hold that 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 to West Virginia Code § 62-12-26. Therefore, petitioner
was eligible for parole pursuant to West Virginia Code § 62-12-13(b)(1)(A) when, after
serving one fourth of his definite ten year sentence, he was released on parole on June 29,
2020. To the extent the subsequently issued warrant for his arrest was based upon a
17
determination that petitioner was ineligible for parole, the warrant was issued in error. See
n. 6.
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 West Virginia Code § 15-4-17, which now provides:
(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
As previously noted, whether petitioner satisfied the other statutory requirements
17
for parole is not at issue in this habeas petition.
16
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 W. Va. Code § 62-12-18 (“The period of parole shall be the maximum of any sentence,
less deductions for good conduct and work as provided by law, for which the paroled
inmate, at the time of release, was subject to imprisonment under his or her definite or
indeterminate sentence, as the case may be.”); see also W. Va. Code § 15A-4-17(b) (“The
commutation of sentence, known as ‘good time,’ shall be deducted from the maximum
term of indeterminate sentences or from the fixed term of determinate sentences.”).
Petitioner argues that, while it is within the Legislature’s authority to exclude inmates
incarcerated pursuant to West Virginia Code § 62-12-26 from statutory sentencing
provisions, constitutional ex post facto principles prohibit the statute’s application to
inmates whose offenses were committed prior to the effective date of the statute. We
agree. 18
With regard to whether S.B. 713 applies to petitioner, respondent reiterates that
18
petitioner is serving a “sanction” for violating the conditions of his supervised release
rather than a “sentence” and that S.B. 713 “specifically removes those serving sanctions
pursuant to violations of § 62-12-26 from the application of” the good time statute. Having
already rejected respondent’s claim that petitioner is not serving a sentence, we need not
Continued . . .
17
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. See Syl. Pt.
19
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, W. Va. Const. art. III § 10.’” (quoting Syl. Pt. 2, State ex rel. Gillespie v.
Kendrick, 164 W. Va. 599, 265 S.E.2d 537 (1980)). Accordingly, legal provisions affecting
good time are scrutinized under the Ex Post Facto Clause. 20 See Lynce v. Mathis, 519 U.S.
433 (1997); Weaver v. Graham, 450 U.S. 24 (1981); see also Adkins v. Bordenkircher, 164
W. Va. 292, 262 S.E.2d 885 (1980); Hasan v. Holland, 176 W. Va. 179, 342 S.E.2d 144(1986).
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.
“‘Commutation of time for good conduct is a right created by the Legislature.’
19
Syllabus point 8, in part, Woodring v. Whyte, 161 W.Va. 262, 242 S.E.2d 238 (1978).” 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).
Ex post facto prohibitions arise out of Article I, Section 10, clause 1 of the United
20
States Constitution, “No State shall . . . pass any Bill of Attainder, ex post facto law,
or law impairing the Obligation of Contracts,” and West Virginia Constitution, Article III,
section 4, “No bill of attainder, ex post facto law, or law impairing the obligation of a
contract shall be passed.”
18
262 S.E.3d 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
19
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 West Virginia Code § 62-12-26 from being granted
Id. at 299, 262 S.E.2d at 888 (quoting Greenfield v. Scafati, 277 F. Supp. 644, 646
21
(D. Mass 1967), aff’d, 390 U.S. 713 (1968) (internal citation omitted)).
20
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, 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 to West Virginia Code § 62-12-26 prior to April 30, 2021, the effective date of
the statute, regardless of any contrary language contained therein. In light of this holding,
we conclude that S.B. 713, West Virginia Code § 15A-4-17, as amended, may not be
applied to petitioner, whose underlying offense was committed in 2010, to preclude him
from being granted commutation from his sentence for good conduct in accordance with
that statute. 22
In recognition that “[t]he legislature has the primary right to define crimes and
22
their punishments subject only to certain constitutional limitations[,]” syl. pt. 1, State ex
rel. Atkinson v. Wilson, 175 W. Va. 352, 332 S.E.2d 807 (1984), and barring some other
challenge to S.B. 713, inmates who are incarcerated pursuant to West Virginia Code § 62-
Continued . . .
21
IV. Conclusion
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.
The Clerk is hereby directed to issue the mandate contemporaneously herewith.
Writ granted.
12-26 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
West Virginia Code § 15A-4-17. See Adkins, 164 W. Va. at 300 n.8, 262 S.E.2d at 889 n.8
(“As to those petitioners and others who are incarcerated on or after May 1, 1978 [i.e., the
effective date of the newly enacted good time statute], for offenses committed on or after
that date, the provisions of the new good time credit statute will apply.”).
22