Darrell V. McGraw, Jr.
Public Defender Corporation Attorney General
Clarksburg, West Virginia Charles Houdyschell, Jr.
Attorney for the Petitioner Assistant Attorney General
Charleston, West Virginia
Attorneys for the Respondent
JUSTICE DAVIS delivered the Opinion of the Court.
CHIEF JUSTICE MAYNARD dissents and reserves the right to file a dissenting opinion.
2. The provisions of West Virginia Code § 28-5-27 (1992) solely govern
the accumulation of 'good time' for inmates sentenced to the West Virginia State
Penitentiary. Syllabus point 3, State v. Jarvis, 199 W. Va. 635, 487 S.E.2d 293 (1997).
3. A prisoner is not entitled to good time credits while on parole. Syllabus point 11, Woodring v. Whyte, 161 W. Va. 262, 242 S.E.2d 238 (1978).
4. A parole revocation hearing, being a critical proceeding at which the
accused parolee's liberty is in jeopardy, must be conducted within the protections afforded
by the state and federal constitutions. Syllabus point 1, Dobbs v. Wallace, 157 W. Va.
405, 201 S.E.2d 914 (1974).
5. A parolee is entitled to receive good time credit, in accordance with
W. Va. Code § 28-5-27 (1984) (Repl. Vol. 1999), when: (1) a parolee is detained pending
a final parole revocation hearing; (2) the West Virginia Parole Board fails to conduct said
hearing within the time limits contained in 7A W. Va. C.S.R. §§ 92-1-11.1(b) and 92-1-
11.2(b) (1983); (3) no applicable exceptions apply to enlarge the enumerated time limits;
and (4) the parolee's conduct while detained warrants good time credit. Such good time
credit is limited to that period of the parolee's detention necessitated by the Parole Board's
In this original jurisdiction proceeding, the petitioner herein, Robert Valentine [hereinafter Valentine], requests this Court to issue a writ of habeas corpus to secure his release from incarceration from the respondent herein, Ron Watkins, Sheriff of Marion County [hereinafter Sheriff Watkins].See footnote 1 1 Specifically, Valentine challenges the calculation of his discharge date, September 6, 2000, and contends that he should have been granted good time credit for his detention pending the West Virginia Parole Board's [hereinafter Parole Board] review of his parole status, which review was necessitated by his February 3-4, 1999, parole violations. Upon a review of the parties' arguments and the pertinent authorities, we grant as moulded the requested writ of habeas corpus. Having concluded that the Parole Board failed to conduct Valentine's parole revocation hearing within the time allowed for such a proceeding, we find that he is entitled to good time credit for that period of his detention necessitated by the Parole Board's delay.
Following his incarceration for the minimum term of his robbery sentence,
Valentine was released on parole on June 29, 1993.See footnote 5
As a result of an undisclosed parole
violation and his status as an absconder, Valentine, who was returned to custody on
September 23, 1994, was charged with 7 months and 1 day good time not earned and 22
days for absconding, which time was added to his minimum discharge date. Therefore,
Valentine's new minimum discharge date was calculated as being May 17, 2000.
On February 3, 1999, Valentine was again released on parole and again
violated the conditions thereof. Pending the Parole Board's review of his parole status,
Valentine was detained in the Marion County Jail.See footnote 6
The Parole Board held a final
revocation hearing on March 25, 1999, and issued its recommendation on April 14, 1999.See footnote 7
In rendering its decision, the Parole Board evaluated the four parole violations, with which
Valentine had been charged and to which he had pleaded guilty, and the circumstances
surrounding these charges:
Charge #1: You did violate Special Condition #5.4 of your Parole Agreement governing your release on parole in that on 2-3-99 you did not adhere to your 8:00 p.m. to 6:00 a.m. curfew.
Mitigation: Parolee [Valentine], through counsel, admitted the curfew violation occurring on the same day he was released from prison for the past four and one-half (4 1/2) years. Parolee indicated that he spent the night with his girlfriend.
. . . .
Charge #2: You did violate Special Condition #5.3 of your Parole Agreement governing your release on parole in that on 2-4-99 you did consume alcohol.
Mitigation: Parolee admitted consumption of beer.
. . . .
Charge #3: You did violate Rule a of the WV Rules and Regulations governing your release on parole in that you failed to report in person to your parole officer on 2-4-99 as directed.
Dismissed by this hearing member.
Charge #4: You did violate Rule e of the WV Rules and
Regulations governing your release on parole in that you failed
to maintain behavior that does not threaten the safety of
yourself or others in that on 2-4-99 you fled the custody of
your Parole Officer Deanna Lindsey, and Fairmont City Police
Officer Brian Schuck.
Mitigation: Parolee admitted fleeing custody. . . .
Based upon this information and additional evidence presented at the hearing, the presiding Parole Board hearing member found, as follows:
Recommendation: The fact that the Parolee violated the same day of his release is on its face, ridiculous. Moreover, subject previously violated parole in 1994. His new minimum discharge date appears to be 5/17/2000. It is doubtful that basic incarceration for another year will offer a cure for his alcoholism, even though the offer of reincarceration on Substance Abuse Unit 19 at PCC is possible and offer [sic] promise. What we see here is misconduct by an alcoholic more than criminal behavior. I believe the testimony of Echols Lambert is important.[See footnote 8 8 ] I also believe that Officer Lindsey had little choice but to institute revocation. In this matter, I choose to blunder on the side of mercy. Reluctantly, I recommend reinstatement of parole for Parolee Valentine predicated on an approved out-of-state home plan.
Upon the Parole Board's reinstatement of his parole, Valentine was required,
as a condition of his parole, to complete an inpatient substance abuse treatment program.See footnote 9
Following the completion of this program, Valentine was re-released on parole. The exact
date of his release, however, is disputed by the parties. Valentine contends that he was
not released until June 24, 1999, while the D.O.C. states that he was released on June 18,
1999. Thereafter, on September 3, 1999, Valentine was determined to have re-violated
the conditions of his parole, and, on September 9, 1999, was again committed to custody.
As a result of the ultimate revocation of his second parole, Valentine was charged with 3
months and 15 days good time not earned and 6 days for his absconder status. When these
figures were added to his prior discharge date, the D.O.C. determined Valentine to be
eligible for release on September 6, 2000.
Upon learning of his amended discharge date, Valentine petitioned this Court
for a writ of habeas corpus. On December 29, 1999, we granted Valentine's petition and
issued a rule to show cause.
With respect to the instant petition, W. Va. Code § 53-4A-1(a) (1967) (Repl.
Vol. 1994) explains to whom a post-conviction writ of habeas corpus is available.
Any person convicted of a crime and incarcerated under sentence of imprisonment therefor who contends that there was such a denial or infringement of his rights as to render the conviction or sentence void under the Constitution of the United States or the Constitution of this State, or both, or that the court was without jurisdiction to impose the sentence, or that the sentence exceeds the maximum authorized by law, or that the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under the common-law or any statutory provision of this State, may, without paying a filing fee, file a petition for writ of habeas corpus ad subjiciendum, and prosecute the same, seeking release from such illegal imprisonment, correction of the sentence, the setting aside of the plea, conviction and sentence, or other relief, if and only if such contention or contentions and the grounds in fact or law relied upon in support thereof have not been previously and finally adjudicated or waived in the proceedings which resulted in the conviction and sentence, or in a proceeding or proceedings on a prior petition or petitions filed under the provisions of this article, or in any other proceeding or proceedings which the petitioner has instituted to secure relief from such conviction or sentence. . . .
When considering whether such a petition requesting post-conviction habeas corpus relief has stated grounds warranting the issuance of the writ, courts typically are afforded broad discretion. See W. Va. Code § 53-4A-3 (1971) (Repl. Vol. 1994); W. Va. Code § 53-4A-7 (1967) (Repl. Vol. 1994). See also Ravnell v. Coiner, 320 F. Supp. 1117, 1124 (N.D. W. Va. 1970) (The decision as to whether to grant relief, deny relief, or to hold an evidentiary hearing on factual issues, if any exist, is a matter of discretion with the courts of West Virginia. (citing W. Va. Code §§ 53-4A-3 and 53-4A-7)); State ex rel. McMannis v. Mohn, 163 W. Va. 129, 141, 254 S.E.2d 805, 811 (1979) (The case is before us on an original petition for writ of habeas corpus, and under W. Va. 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. (footnote omitted) (citations omitted)); Perdue v. Coiner, 156 W. Va. 467, 469-70, 194 S.E.2d 657, 659 (1973) ([T]he statute [W. Va. Code § 53-4A-3] contemplates the exercise of discretion by the court . . . .). Having set forth the standard for issuing the requested writ, we turn now to consider the parties' contentions.
The provisions of West Virginia Code § 28-5-27 (1992) solely govern the accumulation of 'good time' for inmates sentenced to the West Virginia State Penitentiary. Syl. pt. 3, State v. Jarvis, 199 W. Va. 635, 487 S.E.2d 293 (1997). Good time credit contemplates a reduction of or commutation from . . . sentence for good conduct. W. Va. Code § 28-5-27(a) (1984) (Repl. Vol. 1999). 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 [§ 25-4-1 et seq.], chapter twenty-five of th[e West Virginia] code are eligible to receive good time credit, id., provided they abide by the disciplinary rules in effect for the particular institution in which they are housed. See W. Va. Code § 28-5-27(f). When an individual has earned good time, he/she typically receives one day good time for each day he or she is incarcerated. W. Va. Code § 28-5-27(c). In certain circumstances, however, extra good time [may be allowed] for inmates who perform exceptional work or service. W. Va. Code § 28-5-27(i).
Because the governing law is a legislative enactment, the intent of the
Legislature in establishing good time is essential to its understanding and application.
Good time is designed to advance the goal of improved prison discipline. Woods v.
Whyte, 162 W. Va. 157, 160, 247 S.E.2d 830, 832 (1978) (citation omitted) (footnote
omitted). More specifically, [t]he purpose of awarding good time credit is to encourage
not only rehabilitative efforts on the part of the inmate by encouraging the industrious and
orderly, but also to aid prison discipline by rewarding the obedient. Woodring v. Whyte,
161 W. Va. 262, 275, 242 S.E.2d 238, 246 (1978). For this reason, then, it is well-
accepted that the governing statute, W. Va. Code § 28-5-27, do[es] not contemplate good
time credit for parolees. Syl. pt. 2, in part, Woods, 162 W. Va. 157, 247 S.E.2d 830.
Thus, the brief answer to Mr. Valentine's query is no: [a] prisoner is not
entitled to good time credits while on parole. Syl. pt. 11, Woodring, 161 W. Va. 262,
242 S.E.2d 238. In fact, such an allowance is expressly prohibited by W. Va. Code § 28-
5-27(c): No inmate may be granted any good time for time served either on parole or
bond or in any other status whereby he or she is not physically incarcerated.
Despite this definite statement of the prohibition of awarding good time credit
to parolees, good time credit nevertheless remains a substantive right. Syl. pt. 7, in
part, Woodring, 161 W. Va. 262, 242 S.E.2d 238. Cf. Syl. pt. 8, in part, id.
(Commutation of time for good conduct is a right created by the Legislature. It is not
recognized as a fundamental right or a part of a constitutional freedom.). Likewise, the
context within which Valentine seeks credit for his good behavior, i.e., a parole revocation
proceeding, also warrants special treatment. A parole revocation hearing, being a critical
proceeding at which the accused parolee's liberty is in jeopardy, must be conducted within
the protections afforded by the state and federal constitutions. Syl. pt. 1, Dobbs v.
Wallace, 157 W. Va. 405, 201 S.E.2d 914 (1974). Among the duties of the Parole Board
in ensuring that an individual's rights are not unconstitutionally trammeled are its
obligations to obey legislation and . . . [to] act in a way which is not unreasonable,
capricious, or arbitrary. Syl. pt. 3, in part, State ex rel. Eads v. Duncil, 196 W. Va.
604, 474 S.E.2d 534 (1996). Accord Brewer v. Boles, 261 F. Supp. 920, 921 (N.D.
W. Va. 1967) (recognizing that '[t]he Board of Parole must obey applicable legislation
but otherwise it is only required to perform its functions fairly, under fair procedures[; i]t
may not act unreasonably, capriciously or arbitrarily' (quoting Jones v. Rivers, 338 F.2d
862, 874 (4th Cir. 1964))).
Of particular relevance to the proceedings underlying the instant petition is
the Parole Board's responsibility to provide a parolee [who] is under arrest for violation
of the conditions of his[/her] parole . . . a prompt and summary hearing . . . . W. Va.
Code § 62-12-19 (1981) (Repl. Vol. 1997).See footnote 11
The word 'prompt,' in this instance,
contemplates a hearing within a reasonable time. 47 Op. Att'y Gen. 16, 18 (W. Va.
1956). Pursuant to the corresponding regulations,
the Board shall convene a revocation hearing only if it receives the aforementioned report[See footnote 12 12 ] and transcript[See footnote 13 13 ] no later than the thirty-fifth (35) day after either the date on which the parolee received written notice of the charges or the date on which the parolee was incarcerated, whichever occurred sooner. However, the running of the thirty-five (35) day period shall be stopped by:
(1) Any continuance which is sought and obtained by counsel for the parolee before the preliminary revocation hearing, or
(2) The pendency of any criminal charge which is also the basis of any charge of a violation of parole conditions. This subsection shall not be applied to stop the running of the thirty-five (35) day period for any other charge, or
(3) The absence of the parolee from the boundaries of this State for whatever reason, or
(4) The escape or absconding of the parolee [sic] custody of a jail or the supervision of the Department.[See footnote 14 14 ]
The Department shall make a written statement to the
Board explaining the facts and circumstances of any of the four
(4) aforementioned causes for stopping the running of the
thirty-five (35) day period.
7A W. Va. C.S.R. § 92-1-11.1(b) (1983) (footnotes added) (emphasis added). Also governing the Parole Board's actions is the directive which mandates that [t]he revocation hearing shall in any event be held no later than thirty (30) days after the date upon which either the preliminary hearing is held or upon which a written waiver of the preliminary hearing is executed. 7A W. Va. C.S.R. § 92-1-11.2(b) (1983) (emphasis added).
While these dates certain vary, the clear import of the Legislature is that to
be prompt, a parole revocation hearing must be held within thirty to thirty-five days of
the qualifying operative criterion unless an exception operates to toll the thirty-five day
limitation. Cf. Larson v. McKenzie, 554 F.2d 131 (4th Cir. 1977) (per curiam)
(suggesting, in case of multiple convictions and sentences, that execution of parole
violator's warrant within maximum term of first underlying sentence satisfies notions of
fundamental fairness). Furthermore, it also appears that the parole revocation procedure
contemplates both a preliminary hearing and a final parole revocation hearing. In the
proceedings underlying the instant petition, however, Valentine waived his right to such
a preliminary hearing on the day that he received the notice of the charges against him,
February 11, 1999. Therefore, in the absence of a preliminary hearing, we will proceed
to consider whether the Parole Board timely conducted Valentine's final parole revocation
First, we note that none of the enumerated exceptions which, if applicable,
would toll the running of the thirty-five day period, are relevant to the facts we have before
us. See 7A W. Va. C.S.R. § 92-1-11.1(b)(1-4). The parties have presented no evidence
to indicate that any continuances were requested by counsel, nor did the conduct which
formed the basis of Valentine's parole revocation hearing result in criminal charges.
Furthermore, the parties have not alleged that Valentine either absented himself from West
Virginia or that he absconded from custody or supervision in February, 1999. See id.
Finding these exceptions to be inapplicable, we next must ascertain the time within which
the Parole Board was required to commence Valentine's revocation hearing.
Pursuant to § 92-1-11.1(b), the Parole Board was required to convene a
revocation hearing within thirty-five days of the earlier of Valentine's receipt of written
notice of the charges against him or the date of his incarceration on such charges. On
February 11, 1999, Valentine received written notice of the parole violation charges levied
against him, but he was incarcerated pending the resolution of the revocation proceedings
on February 10, 1999. Therefore, using the earlier of these dates, February 10, 1999, the
Parole Board was required to commence its final revocation hearing no later than thirty-five days hence, or by March 17, 1999.
Alternatively, § 92-1-11.2(b) directed the Parole Board to conduct the final
revocation hearing within thirty days of either the date of the preliminary hearing or the
date of the waiver of said hearing. Thirty days from Valentine's waiver of his preliminary
hearing, which waiver was executed on February 11, 1999, results in a final hearing date
of March 15, 1999.
In any event, it is quite apparent that the final revocation hearing in the
instant proceeding was untimely and that it was not prompt as contemplated by W. Va.
Code § 62-12-19. The Parole Board conducted Valentine's final revocation hearing on
March 25, 1999, a date which exceeds the § 92-1-11.1(b) criteria by eight days and which
surpasses the § 92-1-11.2(b) deadline by ten days. Given that an individual's eligibility
for good time credit is a substantive right,See footnote 15
we hold accordingly that a parolee is entitled
to receive good time credit, in accordance with W. Va. Code § 28-5-27 (1984) (Repl. Vol.
1999), when: (1) a parolee is detained pending a final parole revocation hearing; (2) the
West Virginia Parole Board fails to conduct said hearing within the time limits contained
in 7A W. Va. C.S.R. §§ 92-1-11.1(b) and 92-1-11.2(b) (1983); (3) no applicable
exceptions apply to enlarge the enumerated time limits; and (4) the parolee's conduct while
detained warrants good time credit. Such good time credit is limited to that period of the
parolee's detention necessitated by the Parole Board's delay.
Writ granted as moulded.
Lambert Echols, [Marion County] Jail Administrator, testified voluntarily on behalf of Parolee. Lambert testified that Parolee has never posed a threat to society. He further affirmed his opinion of a sincere bond between Parolee and her [sic] son. Lambert expressed his hope that the Board would consider reinstatement for Parolee.