George J. Conseza, Esq.|
William O. Merriman, Esq.
Conseza, Underwood & Merriman
Parkersburg, West Virginia
Attorneys for Appellant
Darrell V. McGraw, Jr.|
Dawn E. Warfield
Deputy Attorney General
Charleston, West Virginia
Attorneys for Appellee
1. Where the issue on an appeal from the circuit court is clearly a question
of law or involving an interpretation of a statute, we apply a de novo standard of review.
Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).
2. 'A statutory provision which is clear and unambiguous and plainly
expresses the legislative intent will not be interpreted by the courts but will be given full
force and effect.' Syllabus point 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951).
Syllabus point 1, Sowa v. Huffman, 191 W. Va. 105, 443 S.E.2d 262 (1994).
3. 'The word shall, in the absence of language in the statute showing
a contrary intent on the part of the legislature, should be afforded a mandatory connotation.'
Point 2 Syllabus, Terry v. Sencindiver, 153 W. Va. 651[, 171 S.E.2d 480 (1969) ]. Syllabus
point 3, Bounds v. State Workmen's Compensation Comm'r, 153 W. Va. 670, 172 S.E.2d 379
4. Where a criminal defendant has been placed on probation after successfully completing 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 under W. 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.
This case involves a determination of whether West Virginia's Youthful
Offender Act (the Act), W. Va. Code §§ 25-4-1 to -12, permits a trial court to increase a
defendant's original sentence upon the revocation of probation. Valid policy arguments
favoring flexibility in this area notwithstanding, we conclude that the Act expressly
forecloses such action.
Richards successfully completed the program at Anthony, and upon return to
the circuit court in February 1998, was placed on three years probation. However, less than
five months into the probationary period, the State filed a revocation petition alleging seven
violations of the conditions of his probation.See footnote 1
The circuit court revoked Richards' probation
on October 30, 1998, and sentenced him to two concurrent 25-year terms.See footnote 2
challenges the lower court's decision to increase his original sentence.
Richards contends that this provision prohibits a court from increasing a defendant's original sentence in the event probation is revoked.See footnote 4 4 We agree with Richards that the circuit court's final sentencing action violated § 25-4-6.
Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review. Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995). Thus, because this case turns exclusively upon an interpretation of the legal requirements of § 25-4-6, we undertake plenary review of the circuit court's action.
As we stated in Syllabus point one of Sowa v. Huffman, 191 W. Va. 105, 443
S.E.2d 262 (1994), '[a] statutory provision which is clear and unambiguous and plainly
expresses the legislative intent will not be interpreted by the courts but will be given full
force and effect. Syl. pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951). In
this case, the language of § 25-4-6 clearly precludes a court from imposing a harsher
sentence based upon conduct postdating the defendant's commitment to the youthful offender
program. The use of the word shall makes the statute's requirement mandatory rather than
directory. See Syl. pt. 3, Bounds v. State Workmen's Compensation Comm'r, 153 W. Va.
670, 172 S.E.2d 379 (1970) ('The word shall, in the absence of language in the statute
showing a contrary intent on the part of the legislature, should be afforded a mandatory
connotation.') (quoting Syl. pt. 2, Terry v. Sencindiver, 153 W. Va. 651, 171 S.E.2d 480
(1969)); Syl. pt. 1, Nelson v. West Virginia Pub. Employees Ins. Bd., 171 W. Va. 445, 300
S.E.2d 86 (1982).
We confronted a similar question in State v. Patterson, 170 W. Va. 721, 296
S.E.2d 684 (1982). In Patterson, the defendant pleaded guilty to shoplifting, and was
sentenced to one-to-ten years imprisonment. Sentence was later suspended and the defendant
committed to the youthful offender program pursuant to the Act. Like Richards in the
present case, the defendant in Patterson successfully completed the program and was placed
on probation; however, after he later pleaded guilty to shoplifting and petit larceny, probation
was revoked and the original sentence executed. This Court subsequently upheld the circuit
court's refusal to once again sentence the defendant as a youthful offender, stating that
W. Va. Code, 25-4-6, does not allow a trial court discretion to impose any less than the
original sentence when a male defendant, who has served at a youth correctional facility,
violates his probation agreement. Syllabus, Patterson, supra. See also State v. Martin, 196
W. Va. 376, 472 S.E.2d 822 (1996) (per curiam) (holding that mandatory imposition of
original sentence pursuant to § 25-4-6 following revocation of probation did not violate
proportionality requirement of W. Va. Const. art. III, § 5).
The reasoning of Patterson applies in the present case: In the event probation
is revoked following a defendant's successful completion of the youthful offender program,
a circuit court has no discretion under § 25-4-6 to do anything but impose the sentence that
was, or otherwise would have been, originally handed down. While our previous cases
involving this subject have dealt only with the circumstance of where a defendant seeks a
lesser sentence than originally imposed, the rigid command of § 25-4-6 applies with equal
force in the present context. At the very least, the statute removes as a permissible
sentencing factor conduct that follows a defendant's successful completion of the youthful
offender program and placement on probation.See footnote 5
The State advances sound policy arguments justifying the circuit court's action
in the present case, asserting that if a defendant is made aware that his imposed but
suspended sentence may be increased should he violate the terms and conditions of his
probation, he will be less likely to violate these terms than if he knows that a probation
violation will result only in incarceration for the term of the suspended sentence. As the
Oregon Supreme Court similarly observed, [t]he possibility of an increased punishment is
a deterrent to violation of probation. It is in the best interest of all the probationer, law
enforcement agencies, and the public that probationers do not violate the terms of probation.
State v. Holmes, 287 Or. 613, 619, 601 P.2d 1213, 1215 (1979); see also Smith v. State,
261 Ind. 510, 514-15, 307 N.E.2d 281, 283 (1974) ([I]f courts are to be encouraged to give
suspended sentences, they must be given the latitude allowed within the plain wording of the
statute to insure that a defendant accepting the terms of probation will do so with full
realization of the gravity of the consequences of the violation of that probation.). However
compelling this argument may be, the wording of § 25-4-6 simply does not support it.See footnote 6
We have previously indicated that [t]he plain meaning of legislation should
be conclusive, except in the rare cases in which the literal application of a statute will
produce a result demonstrably at odds with the intentions of the drafters. Hutchison v. City
of Huntington, 198 W. Va. 139, 150, 479 S.E.2d 649, 660 (1996) (citation and internal
quotation marks omitted). Although it would be reasonable to speculate that the
Legislature's primary intent in wording § 25-4-6 as it did was merely to ensure that
predictable repercussions would ensue following a defendant's violation of probation, our
literal interpretation of the statute in this instance does not produce such illogical or absurd
consequences so as to compel some alternative construction. '[C]ourts must presume that
a legislature says in a statute what it means and means in a statute what it says there.'
Martin v. Randolph County Bd. of Educ., 195 W. Va. 297, 312, 465 S.E.2d 399, 414 (1995)
(quoting Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S. Ct. 1146, 1149,
117 L. Ed. 2d 391, 397 (1992)). As we have stressed on numerous occasions, [i]t is not the
province of the courts to make or supervise legislation, and a statute may not, under the guise
of interpretation, be modified, revised, amended, distorted, remodeled, or rewritten[.] State
v. General Daniel Morgan Post No. 548, V.F.W., 144 W. Va. 137, 145, 107 S.E.2d 353, 358
(1959) (citation omitted). See also Syl. pt. 3, in part, West Virginia Health Care Cost Review
Auth. v. Boone Mem. Hosp., 196 W. Va. 326, 472 S.E.2d 411 (1996) (If the language of an
enactment is clear and within the constitutional authority of the lawmaking body which
passed it, courts must read the relevant law according to its unvarnished meaning, without
any judicial embroidery.).
Consequently, we hold that where a criminal defendant has been placed on
probation after successfully completing a program of rehabilitation under the Youthful
Offenders Act, and such probation is subsequently revoked, the circuit court has no discretion
under § 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. The circuit court's action in increasing Richards' sentence
upon the revocation of his probation was therefore erroneous.
The judge of any court with original criminal jurisdiction
may suspend the imposition of sentence of any male youth
convicted of or pleading guilty to a criminal offense, other than an
offense punishable by life imprisonment, who has attained his
sixteenth birthday but has not reached his twenty-first birthday at
the time of the commission of the crime, and commit him to the
custody of the West Virginia commissioner of public institutions
to be assigned to a center. The period of confinement in the center
shall be for a period of six months, or longer if it is deemed
advisable by the center superintendent, but in any event such period
of confinement shall not exceed two years. If, in the opinion of the
superintendent, such male offender proves to be an unfit person to
remain in such a center, he shall be returned to the court which
committed him to be dealt with further according to law. In such
event, the court may place him on probation or sentence him for the
crime for which he has been convicted. In his discretion, the judge
may allow the defendant credit on his sentence for time he has
spent in the center.
When, in the opinion of the superintendent, any boy has
satisfactorily completed the center training program, such male
offender shall be returned to the jurisdiction of the court which
originally committed him. He shall be eligible for probation for the
offense with which he is charged, and the judge of the court shall
immediately place him on probation. In the event his probation is
subsequently revoked by the judge, he shall be given the sentence
he would have originally received had he not been committed to
the center and subsequently placed on probation. The court shall,
however, give the defendant credit on his sentence for the time he
spent in the center.
Any male youth between the ages of ten and eighteen
committed by the judge of any court of competent jurisdiction for
any of the causes, and in the manner prescribed in article five,
chapter forty-nine of this code, may, if such youth is or has attained
the age of sixteen, be placed in a center or transferred from the
industrial school or like facility to a center and back to such facility
by the commissioner of public institutions, if he deems it proper for
the youth's detention and rehabilitation.
This section was effectively rewritten during the recent legislative session, see 1999 W. Va. Acts ch. 64, and now provides, in relevant part, that [i]n 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 recent amendments to § 25-12-6 did not substantially alter the language at issue in this case.