Mark A. Sorsaia
Assistant Prosecuting Attorney
of Putnam County
Winfield, West Virginia
Attorney for the Relator
Gregory J. Campbell
Charleston, West Virginia
Attorney for Respondent
Mark J. McClelland
JUSTICE MILLER delivered the Opinion of the Court.
JUSTICE NEELY dissents and reserves the right to file a dissenting opinion.
The offense of first degree sexual assault under W. Va.
Code, 61-8B-3(a)(2) (1984), involves violence to a person and is,
therefore, subject to the provisions of W. Va. Code, 62-1C-1(b)
(1983), with regard to post-conviction bail.
This is an original proceeding in prohibition. On July
21, 1992, we issued a rule, returnable on September 2, 1992. This
proceeding represents the second time in recent months that these
parties have appeared before this Court. The relator asks us to
order the respondent, the Honorable Clarence L. Watt, Judge of the
Circuit Court of Putnam County, to revoke the post-conviction bail
of Mark J. McClelland.
In March of 1990, Mr. McClelland was convicted of nine
counts of sexual assault in the first degree involving his five-year-old stepdaughter and his seven-year-old stepson. Mr.
McClelland subsequently filed a motion for a new trial on the basis
of newly discovered evidence. In November of 1991, the trial court
granted that motion, and Mr. McClelland was freed on post-conviction bail.
Thereafter, the State sought a writ of prohibition in
this Court to prevent the new trial. We granted the writ, holding
that there was insufficient evidence to warrant a new trial and
that the trial court had exceeded its legitimate powers in granting
the motion. State ex rel. Spaulding v. Watt, ___ W. Va. ___, ___
S.E.2d ___ (No. 20853 7/10/92).See footnote 1
The State subsequently brought a motion before the circuit court to revoke bail on the ground that W. Va. Code, 62-1C-1(b) (1983), precludes a circuit court from granting post-conviction bail where the crime involves "the use of violence to a person."See footnote 2 A hearing was held on July 17, 1992, at which time the motion was denied. The State then brought this original proceeding in prohibition to compel the trial court to revoke Mr. McClelland's post-conviction bail.
Mr. McClelland argues that the circuit court was not
precluded from granting him bail because he was not convicted of a
crime involving violence to a person. In particular, Mr.
McClelland was convicted of first degree sexual assault pursuant to
W. Va. Code, 61-8B-3(a)(2) (1984), which provides:
"(a) A person is guilty of sexual assault in the first degree when:
* * *
"(2) Such person, being fourteen
years old or more, engages in sexual
intercourse or sexual intrusion with another
person who is eleven years old or less."
Unlike the crime of first degree sexual assault defined in W. Va.
Code, 61-8B-3(a)(1) (1984),See footnote 3 the offenses of which Mr. McClelland
was convicted do not require proof of forcible compulsion.
Instead, the gist of the crime is the child's presumed incapacity
to consent to sexual intercourse or sexual intrusion.See footnote 4 However,
both offenses are felonies which carry a penalty of imprisonment in
the penitentiary for a term of not less than fifteen nor more than
twenty-five years. W. Va. Code, 61-8B-3(b) (1984).See footnote 5
Mr. McClelland asserts that because the State prosecuted
him under W. Va. Code, 61-8B-3(a)(2) (1984), and was not required
to show forcible compulsion or physical violence in the commission
of the offense, he has not been convicted of a crime of violence to
a person. The State contends that even if there was no physical
injury to the victim, the very nature of the crime of sexual
assault against young children results in severe emotional and
psychological damage which constitutes violence.
W. Va. Code, 62-1C-1(b), precludes the trial court from
granting post-conviction bail "where the offense is punishable by
life imprisonment or . . . [where] the offense was committed or
attempted to be committed with the use, presentment or brandishing
of a firearm or other deadly weapon, or by the use of violence to
a person[.]" (Emphasis added). This provision allows this Court
to review, by summary petition, the denial of bail in the circuit
court under the foregoing restrictions.See footnote 6
In State v. Steele, 173 W. Va. 248, 314 S.E.2d 412
(1984), we discussed the procedure for obtaining post-conviction
bail in this Court under W. Va. Code, 62-1C-1(b). We recognized
that under the statute the trial court was prohibited from granting
post-conviction bail in the enumerated circumstances. However, we
did not address the meaning of the phrase "by the use of violence
to a person" in Steele or in any subsequent case.
It appears that our post-conviction bail statute is
unique. Statutes in other jurisdictions which preclude bail in
certain circumstances fall into three general categories. One
category of statute provides a list of specific crimes for which
post-conviction bail is not authorized.See footnote 7 The second type of
statute conditions an award of post-conviction bail upon the length
of the sentence imposed.See footnote 8 Finally, there is a hybrid statute
which determines whether bail is authorized by looking at both a
list of specific crimes and the severity of the sentence imposed.See footnote 9
See generally Annot., 28 A.L.R. 4th 227 (1984) (right of defendant
to bail pending appeal).
Perhaps as a result of the specificity of bail statutes
in other jurisdictions, we have not encountered a case which
discusses the meaning of "violence to a person" in the context of
post-conviction bail exclusions. However, the California courts
have addressed a similar issue in the context of a sentence
enhancement statute. In People v. Hetherington, 154 Cal. App. 3d
1132, 201 Cal. Rptr. 756 (1984), the court considered a statute
which provided for an enhanced sentence upon conviction of a
"violent felony." The statute defined the term "violent felony" as
including sexual acts against children under the age of fourteen.
The defendant was convicted under the portion of the child
molestation statute which did not require proof of forcible
In determining whether this was a violent felony for
purposes of the enhancement statute, the court in Hetherington
initially focused on the interplay between these statutes. The
court held that the legislature had expressly stated in the
enhancement statute that "'these specified crimes merit special
consideration when imposing a sentence to display society's
condemnation for such extraordinary crimes of violence against the
person.' (Italics added.)" 154 Cal. App. 3d at 1139-40, 201 Cal.
Rptr. at 760. The court then analyzed the phrase "violence against
the person" to determine whether the enhancement statute applied
only to crimes involving physical violence:
"We consider it significant that the statute refers simply to 'violence' rather than to 'physical violence,' 'physical injury' or 'bodily harm.' The statute's unadorned language indicates the Legislature intended to impose increased punishment . . . not only for certain felonies which are 'violent' in a physical sense but also for other selected felonies which cause extraordinary psychological or emotional harm." 154 Cal. App. 3d at 1140, 201 Cal. Rptr. at 760.
See also People v. Stephenson, 160 Cal. App. 3d 7, 206 Cal. Rptr.
444 (1984) (child molestation a violent felony).
There is, we believe, sound logic to this reasoning. As
in Hetherington, the word "violence" in our post-conviction bail
statute is not limited by the adjective "physical." There can be
no dispute that even in the absence of any significant physical
trauma, sexual assaults on young children result in severe
emotional and psychological harm.
Furthermore, we cannot ignore the severe penalty attached
to the offense of first degree sexual assault as defined in W. Va.
Code, 61-8B-3(a)(2) (1984). The fact that the penalty is the same
as that imposed for sexual assault by forcible compulsion
demonstrates the legislature's view of the seriousness of the
In summary, we decline to resolve the question presented
here solely on the ground that physical violence is not an element
of the crimes of which Mr. McClelland was convicted. The fact that
the State elected to prosecute first degree sexual assault under
W. Va. Code, 61-8B-3(a)(2) (1984), based on the age of the children
rather than upon a theory of forcible compulsion, does not mean
that the children were not the victims of violence.
For these reasons, we conclude that the offense of first
degree sexual assault under W. Va. Code, 61-8B-3(a)(2) (1984),
involves "violence to a person" and is, therefore, subject to the
provisions of W. Va. Code, 62-1C-1(b), with regard to post-conviction bail.
The trial court exceeded its legitimate powers in denying
the State's motion to revoke bail under the circumstances of this
case. We, therefore, grant the writ of prohibition prayed for, and
direct the respondent judge to revoke Mr. McClelland's post-conviction bail.
Footnote: 1In Syllabus Point 2 of State ex rel. Spaulding v. Watt, supra, we stated the legal basis for the writ of
"'The State may seek a writ of
prohibition in this Court in a criminal case
where the trial court has exceeded or acted
outside of its jurisdiction. Where the State
claims that the trial court abused its
legitimate powers, the State must demonstrate
that the court's action was so flagrant that
it was deprived of its right to prosecute the
case or deprived of a valid conviction. In
any event, the prohibition proceeding must
offend neither the Double Jeopardy Clause nor
the defendant's right to a speedy trial.
Furthermore, the application for a writ of
prohibition must be promptly presented.'
Syllabus point 5, State v. Lewis, [___ W. Va.
___, ___ S.E.2d ___] No. 20930 (W.Va. July 6,
Footnote: 2W. Va. Code, 62-1C-1(b), states:
"Bail may be allowed pending appeal from a conviction, except that bail shall not be granted where the offense is punishable by life imprisonment or where the court has determined from the evidence at the trial or upon a plea of guilty or nolo contendere that the offense was committed or attempted to be committed with the use, presentment or brandishing of a firearm or other deadly weapon, or by the use of violence to a person: Provided, That the denial of bail under one of these exceptions may be reviewed by summary petition to the supreme court of appeals or any justice thereof, and the petition for bail may be granted where there is a likelihood that the defendant will
prevail upon the appeal. The court or judge
allowing bail pending appeal may at any time
revoke the order admitting the defendant to
Footnote: 3W. Va. Code, 61-8B-3(a)(1) (1984), provides:
"A person is guilty of sexual
assault in the first degree when:
"(1) Such person engages in sexual intercourse or sexual intrusion with another person and, in so doing:
"(i) Inflicts serious bodily injury upon anyone; or
"(ii) Employs a deadly weapon in
the commission of the act[.]"
Footnote: 4W. Va. Code, 61-8B-2 (1984), provides:
"(a) Whether or not specifically
stated, it is an element of every offense
defined in this article that the sexual act
was committed without the consent of the
"(b) Lack of consent results from:
"(1) Forcible compulsion; or
"(2) Incapacity to consent; or
"(3) If the offense charged is sexual abuse, any circumstances in addition to the forcible compulsion or incapacity to consent in which the victim does not expressly or impliedly acquiesce in the actor's conduct.
"(c) A person is deemed incapable
of consent when such person is:
"(1) Less than sixteen years old; or
"(2) Mentally defective; or
"(3) Mentally incapacitated; or
"(4) Physically helpless."
Footnote: 5In 1991, after the date of the crimes in this case, the statute was amended to increase the penalty to imprisonment for not less than fifteen nor more than thirty-five years. See W. Va. Code, 61-8B-3(b) (1991).
Footnote: 6See note 2, supra, for the full text of W. Va. Code, 62-1C-1(b).
Footnote: 7See Fla. Stat. Ann. § 903.133 (1992 Cum. Supp.); Miss. Code Ann. § 99-35-115 (1992 Cum. Supp.); Okla. Stat. Ann. tit. 22, § 1077 (1992 Cum. Supp.).
Footnote: 8See S.C. Code Ann. § 18-1-90 (Law. Co-op. 1985).
Footnote: 9See 18 U.S.C. § 3143(b)(2) (1992 Cum. Supp.); Ga. Code Ann. § 17-6-1(g) (1992 Cum.Supp.); Tex. Crim. Proc. Ann. § 44.04(b) (1992 Cum. Supp.).