Davis, Chief Justice:
Kevin Ray Middleton (hereinafter Mr. Middleton) appeals a final order from the Circuit Court of Kanawha County convicting him of and sentencing him for the crimes of sexual abuse by a parent, custodian or guardian and first degree sexual abuse. Mr. Middleton was sentenced to not less than ten nor more than twenty years imprisonment on the sexual abuse by a parent, custodian or guardian conviction and sentenced to not less than one nor more than five years imprisonment on the first degree sexual abuse conviction. The sentences were to be served consecutively. (See footnote 1) Here, Mr. Middleton assigns error to (1) the admission of an inculpatory statement he gave to the police; (2) the exclusion of evidence concerning the victim's father; and (3) failure to provide credit to both sentences for presentencing incarceration. After a careful review of the briefs and record, and after listening to the oral arguments of the parties, we affirm.
On appeal, legal conclusions made with regard to suppression determinations are reviewed de novo. Factual determinations upon which these legal conclusions are based are reviewed under the clearly erroneous standard. In addition, factual findings based, at least in part, on determinations of witness credibility are accorded great deference.
See also Syl. pt 1, State v. Lacy, 196 W. Va. 104, 468 S.E.2d 719 (1996) (When reviewing
a ruling on a motion to suppress, an appellate court should construe all facts in the light most
favorable to the State, as it was the prevailing party below. Because of the highly
fact-specific nature of a motion to suppress, particular deference is given to the findings of
the circuit court because it had the opportunity to observe the witnesses and to hear testimony
on the issues. Therefore, the circuit court's factual findings are reviewed for clear error.).
The second issue raised by Mr. Middleton involves the trial court's exclusion of testimony by a witness. We have held as a general rule that [a] trial court's evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review under an abuse of discretion standard. Syl. pt. 4, State v. Rodoussakis, 204 W. Va. 58, 511 S.E.2d 469 (1998). See also State v. Guthrie, 194 W. Va. 657, 680, 461 S.E.2d 163, 186 (1995) ([M]ost rulings of a trial court regarding the admission of evidence are reviewed under an abuse of discretion standard. . . . [A]n appellate court reviews de novo the legal analysis underlying a trial court's decision.).
The third assignment of error involves the sentence imposed by the circuit court. As a general rule, [s]entences imposed by the trial court, if within statutory limits and if not based on some unpermissible factor, are not subject to appellate review. Syl. pt. 4, State v. Goodnight, 169 W. Va. 366, 287 S.E.2d 504 (1982). However, in cases such as the one before us in which it is alleged that the circuit court has failed to impose a sentence consistent with the law, appellate review is warranted. This Court reviews a circuit court's sentencing decision under an abuse of discretion standard. See generally Syl. pt. 1, State v. Head, 198 W. Va. 298, 480 S.E.2d 507 (1996).
for the purpose of giving a polygraph test, Miranda warnings must be given to a criminal
suspect, who is in custody, prior to conducting a polygraph examination. Syl. pt. 2, State
v. DeWeese, 213 W. Va. 339, 582 S.E.2d 786 (2003) (emphasis added). Mr. Middleton does
not contend that he was in custody for the purposes of the polygraph test. Consequently, Miranda warnings were not actually required for the limited purpose of taking the polygraph
test. (See footnote 7) However, [w]here police have given Miranda warnings outside the context of
custodial interrogation, these warnings must be repeated once custodial interrogation begins.
Absent an effective waiver of these rights, interrogation must cease. Syl. pt. 4, State v.
Bradshaw, 193 W. Va. 519, 457 S.E.2d 456 (1994). Mr. Middleton contends that for
purposes of the post-polygraph questioning, he was in custody and therefore the police were
required to read him his Miranda rights and obtain a valid waiver before they interrogated
him. The State argues that Mr. Middleton was not in custody during the post-polygraph
interrogation and therefore Miranda warnings were not required. We agree.
In State v. Preece, 181 W. Va. 633, 383 S.E.2d 815 (1989), overruled on other grounds by State v. Guthrie, 205 W. Va. 326, 518 S.E.2d 83 (1999), this Court stated, and we now hold, that a trial court's determination of whether a custodial interrogation environment exists for purposes of giving Miranda warnings to a suspect is based upon whether a reasonable person in the suspect's position would have considered his or her freedom of action curtailed to a degree associated with a formal arrest. 181 W. Va. at 641- 642, 383 S.E.2d at 823. Preece went on to state, and we also now hold, that:
The factors to be considered by the trial court in making
[a determination of whether a custodial interrogation
environment exists], while not all-inclusive, include: the
location and length of questioning; the nature of the questioning
as it relates to the suspected offense; the number of police
officers present; the use or absence of force or physical restraint
by the police officers; the suspect's verbal and nonverbal
responses to the police officers; and the length of time between
the questioning and formal arrest.
181 W. Va. at 641-642, 383 S.E.2d at 823-824.
In this case, the record shows that the interrogation took place at a state police detachment and that the interrogation lasted several hours. (See footnote 8) The interrogation involved the suspected sexual abuse of S.W. The evidence at trial showed that not more than two officers interrogated Mr. Middleton at the same time. (See footnote 9) Although Mr. Middleton argues that the questioning was at times verbally forceful, there was no physical force and no restraints were placed on him. (See footnote 10) Mr. Middleton never stated to the officers that he no longer wished to answer questions. (See footnote 11) Finally, the questioning occurred on January 16, 2002, while Mr. Middleton was not arrested until January 29, 2002.
Additionally, during the suppression hearing Mr. Middleton stated, in effect, that he wanted to remain at the detachment for further questioning after the polygraph test:
Q. Why didn't you leave after the test?
A. I was still willing to try to prove my innocence_well, I wished I could, you know, that's what I was wanting to do. I didn't want to make it look like, well, I'm guilty, I'm leaving, you know.
At the end of the post-polygraph interrogation, Mr. Middleton was allowed to leave the detachment.
Taking all of the above factors into consideration, we do not believe that Mr.
Middleton was in custody during the post-polygraph interrogation. Consequently, there was
no requirement that the police inform Mr. Middleton of his Miranda rights before or during
the post-polygraph interrogation. See State v. Potter, 197 W. Va. 734, 478 S.E.2d 742 (1996)
(finding defendant not in custody after voluntarily going to police station to be questioned); State v. Honaker, 193 W. Va. 51, 454 S.E.2d 96 (1994) (same). (See footnote 12)
Our decision on this issue is supported by the astute observations of Justice Cleckley in State v. Farley, 192 W. Va. 247, 452 S.E.2d 50 (1994). The facts of Farley illustrate that, during a two-month period, a number of suspicious fires occurred in Mannington, West Virginia. The local police asked a number of suspects, including the defendant, to come to the police station to take a polygraph test. The defendant agreed and voluntarily went to the police station. Prior to giving the defendant the polygraph test, the police read the defendant his Miranda rights. The defendant signed a waiver form and was given the test. After the test the defendant was told that he did not perform well on the test. Three police officers began questioning the defendant, without providing post-polygraph Miranda warnings. The defendant ultimately confessed to the crimes on which he was eventually indicted. One of the issues raised by the defendant on appeal was that the confession should have been suppressed because he invoked his rights under Miranda to remain silent. Justice Cleckley rejected the contention and concluded that the defendant did not affirmatively assert his right to remain silent. More importantly for purposes of the instant case, prior to addressing the issue raised in Farley, Justice Cleckley set out the following in a footnote:
There is a serious question whether the Miranda rights are even applicable in this case. The facts indicate that the defendant was not in custody while the interrogation took place. . . . Because neither the parties nor the trial court addressed this issue and because the defendant was actually advised of his Miranda rights at the time he was [given the polygraph test], we too will assume that the full panoply of Miranda rights apply to this interrogation.
Farley, 192 W. Va. at 254 n.10, 452 S.E.2d at 57 n.10. In the instant case, we do not have
to assume that the panoply of Miranda rights apply. Unlike the situation in Farley, the
State has in fact argued that the defendant was not in custody when he was questioned by the
police. Therefore, as was suggested by Farley, Miranda warnings did not have to be given
to Mr. Middleton because he was not in custody when the police questioned him. See Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714, 50 L. Ed. 2d. 714 (1977)
([The] police officers are not required to administer Miranda warnings to everyone whom
they question. Nor is the requirement of warnings to be imposed simply because the
questioning takes place in the station house, or because the questioned person is one whom
the police suspect. Miranda warnings are required only where there has been such a
restriction on a person's freedom as to render him 'in custody.'); Commonwealth v.
Schoellhammer, 454 A.2d 576, 580 (Pa. Super. Ct. 1982) (It is clear that appellant was a
focus of the investigation at the time of the polygraph examination; however, without some
further indicia of custody accompanying the administration of polygraph tests, Miranda warnings are not required.).
2. Requesting an attorney. Mr. Middleton testified at the suppression hearing that at some point during the interrogation he stated, I need a lawyer. The officers called by the State during the suppression hearing testified that Mr. Middleton did not make any statement requesting a lawyer. The trial court found that Mr. Middleton's testimony on
this issue was not credible.
The law is clear in holding that [w]hen a criminal defendant requests counsel, it is the duty of those in whose custody he is, to secure counsel within a reasonable time. In the interim, no interrogation shall be conducted, under any guise or by any artifice. Syl. pt. 1, State v. Bradley, 163 W. Va. 148, 255 S.E.2d 356 (1979). See also Minnick v. Mississippi, 498 U.S. 146, 147, 111 S. Ct. 486, 488, 112 L. Ed. 2d. 489 (1990) ([T]he police must terminate interrogation of an accused in custody if the accused requests the assistance of counsel.); State v. Bradshaw, 193 W. Va. 519, 528, 457 S.E.2d 456, 465 (1995) ([O]nce a defendant invokes his right to an attorney under Miranda, the defendant must reinitiate contact in order for the authorities to resume interrogation.). Under Bradley, if a person is in custody and requests counsel, no interrogation may take place. In the instant case we have already determined that Mr. Middleton was not in custody. Therefore, assuming for the sake of argument, that Mr. Middleton did in fact state that he needed a lawyer, such a statement did not invoke the protections of Miranda so as preclude further questioning by the police. This precise issue was addressed by Justice Cleckley in State v. Bradshaw, 193 W. Va. 519, 457 S.E.2d 456 (1995).
In Bradshaw, the defendant was convicted in two separate trials of second and first degree murder. One of the issues raised in the consolidated appeal of the convictions was that the trial court erred in admitting the defendant's confession. The defendant contended that the confession was given during an interrogation in which he requested counsel. Justice Cleckley found that at the time of the confession the defendant was not in custody; therefore the request for counsel did not prevent the police from questioning him further. The opinion addressed this issue as follows:
[T]he Miranda right to counsel has no applicability outside the
context of custodial interrogation. Therefore, until the
defendant was taken into custody, any effort on his part to
invoke his Miranda rights was, legally speaking, an empty
gesture. We believe the window of opportunity for the
assertion of Miranda rights comes into existence only when that
right is available. . . . To the extent that any of our prior cases
could be read to allow a defendant to invoke his Miranda rights
outside the context of custodial interrogation, the decisions are
no longer of precedential value. . . .
Our refusal to extend the Miranda . . . protections to noncustodial interrogation is consistent with the goals of Miranda, which allow the police to conduct effective criminal investigations and at the same time provide a defendant an opportunity to dissipate [the inherent compulsion that is brought about by the combination of custody and interrogation]. . . .
Bradshaw, 193 W. Va. at 530, 457 S.E.2d at 467 (internal quotations and citations omitted)
(footnotes omitted). See also United States v. Lennick, 917 F.2d 974, 978 (7th Cir. 1990)
(As discussed above, [defendant] was never in custody. Therefore, his statement that he
'had an attorney who wanted to be present at any questioning concerning the rifle' did not
require agent Allbritten to stop his inquiry.); State v. Stanley, 809 P.2d 944, 950 (Ariz.
1991) ([E]ven though a suspect invokes his right to decline further interrogation until he has
spoken to a lawyer, the police may continue to question him in a non-custodial setting.); People v. Goyer, 638 N.E.2d 390, 396 (Ill. App. Ct. 1994) (Because defendant was not in
custody, his statement regarding an attorney, even if considered a clear and unequivocal
request, does not implicate any constitutionally protected right, and the officers were
consequently not required to end the interview.); Kelley v. State, 825 N.E.2d 420, 430
(Ind. Ct. App. 2005) (Assuming that [defendant] made the request to speak to an attorney,
his right to counsel had not accrued because he was not in custody. Thus, the interview need
not have stopped when the request was made and the admission of the evidence is not
precluded.); Hunt v. State, 687 So. 2d 1154, 1160 (Miss. 1997) ([I]f [defendant's] first
alleged request for an attorney took place in a non-custodial setting, her . . . right to counsel
was not implicated.); State v. Daughtry, 459 S.E.2d 747, 755 (N.C. 1995) ([D]efendant
was not in custody when he requested an attorney; thus, Miranda . . . d[id] not apply.); Syl.
pt. 2, State v. Fry, 573 N.E.2d 1108 (Ohio Ct. App. 1988) (A police officer may continue
to question a suspect in a noncustodial situation, even if the suspect has made a request for
counsel, so long as the officer's persistence in questioning does not render statements made
by the suspect involuntary.); State v. Kramer, 720 N.W.2d 459, 463 (Wis. Ct. App. 2006)
([U]nless a defendant is in custody, he or she may not invoke the right to counsel under Miranda.).
Based upon the foregoing authority, we now hold that a police officer may continue to question a suspect in a noncustodial setting, even though the suspect made a request for counsel during the interrogation, so as long as the officer's continued questioning does not render statements made by the suspect involuntary. See Syl. pt. 3, Bradshaw (To the extent that any of our prior cases could be read to allow a defendant to invoke his Miranda rights outside the context of custodial interrogation, the decisions are no longer of precedential value.).
Mr. Middleton cites to this Court's decision in State v. Jones, 216 W. Va. 392, 607 S.E.2d 498 (2004) (per curiam), to support his argument that further questioning should have ceased when he purportedly stated that he needed a lawyer. Jones is clearly distinguishable from the facts of this case.
In Jones, the defendant, a juvenile charged as an adult with two counts of second degree murder, had been arrested and was presumably out on bond when he agreed to take a polygraph test. The defendant was accompanied to the polygraph test by his counsel. However, at some point his lawyer left. After the polygraph test concluded, the police questioned the defendant. The defendant requested consultation with his counsel, but the police did not contact the defendant's attorney. The defendant subsequently made incriminating statements that were introduced at trial, and the defendant was convicted. On appeal, this Court reversed the convictions because the police continued to question the
defendant after he had requested to speak with his lawyer.
One of the critical factors present in Jones, and not present in the instant case, was the fact that the defendant had been arrested at the time the police interrogated him. Indeed, in order to reverse the convictions in Jones, we had to distinguish our decision in State v. Farley, 192 W. Va. 247, 452 S.E.2d 50 (1994), where we sustained the admission of a confession given after a polygraph test. In that case, however, the defendant had not been arrested, arguably was not in custody, and did not have a lawyer. Insofar as Mr. Middleton was not in custody when he made the alleged statement that he needed a lawyer, the police were not precluded from further questioning.
(3) Failure to inform Mr. Middleton that an attorney represented him. On the day of the interrogation, an attorney contacted the police and informed them that he represented Mr. Middleton. The attorney further advised the police that Mr. Middleton should not be questioned before the attorney arrived. (See footnote 13) The police did not convey this information to Mr. Middleton. Here, Mr. Middleton contends that under this Court's decision in State v. Hickman, 175 W. Va. 709, 338 S.E.2d 188 (1985), he had a right to be informed that counsel had been retained on his behalf. We disagree.
The issue of advising a suspect that counsel represents him or her was addressed by this Court in Syllabus point 1 of Hickman as follows:
A defendant who is being held for custodial interrogation must be advised, in addition to the Miranda rights, that counsel
has been retained or appointed to represent him where the law
enforcement officials involved have knowledge of the attorney's
retention or appointment. This rule is based on the theory that
without this information, a defendant cannot be said to have
voluntarily and intelligently waived his right to counsel.
(Emphasis added). Under its express terms, Hickman may only be invoked when a suspect is the subject of custodial interrogation. Insofar as we have determined that Mr. Middleton was not in custody, Hickman did not require the police to inform him that an attorney had been retained for him.
The State contends that we should not extend the requirement of Hickman to noncustodial interrogations in view of the decision by the United States Supreme Court in Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d. 410 (1986). We agree.
In Moran, the defendant was convicted of and sentenced for murder by the State of Rhode Island. After the conviction and sentence were sustained on direct appeal, the defendant filed a habeas corpus petition in a federal district court. In the habeas petition, the defendant alleged that his rights under Miranda had been violated because the police failed to inform him, during custodial interrogation, that counsel had been retained on his behalf. The federal district court denied relief. However, a federal court of appeals found that the defendant's Miranda rights were violated by the failure of the police to inform him that counsel had been retained to represent him. The State of Rhode Island appealed this decision to the United States Supreme Court. The Supreme Court rejected the decision of the appellate court. In doing so, the opinion reasoned as follows:
[W]e [are not] prepared to adopt a rule requiring that the police
inform a suspect of an attorney's efforts to reach him. While
such a rule might add marginally to Miranda's goal of dispelling
the compulsion inherent in custodial interrogation, overriding
practical considerations counsel against its adoption. . . . We
have little doubt that the approach urged by respondent and
endorsed by the Court of Appeals would have the inevitable
consequence of muddying Miranda's otherwise relatively clear
waters. The legal questions it would spawn are legion: To what
extent should the police be held accountable for knowing that
the accused has counsel? Is it enough that someone in the
station house knows, or must the interrogating officer himself
know of counsel's efforts to contact the suspect? Do counsel's
efforts to talk to the suspect concerning one criminal
investigation trigger the obligation to inform the defendant
before interrogation may proceed on a wholly separate matter?
We are unwilling to modify Miranda in a manner that would so
clearly undermine the decision's central virtue of informing
police and prosecutors with specificity . . . what they may do in
conducting [a] custodial interrogation, and of informing courts
under what circumstances statements obtained during such
interrogation are not admissible. . . .
. . . .
We acknowledge that a number of state courts have
reached a contrary conclusion. . . . Nothing we say today
disables the States from adopting different requirements for the
conduct of its employees and officials as a matter of state law.
We hold only that the Court of Appeals erred in construing the
Fifth Amendment to the Federal Constitution to require the exclusion of respondent's three confessions.
Moran, 475 U.S. at 425-428, 106 S. Ct. at 1143-1144 (internal quotations and citations omitted).
Contrary to the rule adopted in Hickman, which was decided before Moran, the decision in Moran makes clear that Miranda is not violated because the police fail to inform a suspect under custodial interrogation that counsel was retained for him or her. Insofar as we have determined that Mr. Middleton was not in custody during the interrogation, we need not decide today whether Hickman should remain good law in light of Moran. (See footnote 14) It is enough for the resolution of this case for this Court to hold that if, during the course of noncustodial interrogation of a suspect, the police are made aware that legal counsel has been retained for the suspect, the police are under no obligation to inform the suspect that counsel has been retained.
In view of Moran and our holding herein, Mr. Middleton's rights under Miranda were not violated as a result of the failure of the police to inform him that counsel had been retained on his behalf. (See footnote 15)
(4) Voluntariness of statement. The final issue raised by Mr. Middleton on this point is that the incriminating statement he made to the police was not given voluntarily. We have held that [t]he State must prove, at least by a preponderance of the evidence, that confessions or statements of an accused which amount to admissions of part or all of an offense were voluntary before such may be admitted into the evidence of a criminal case. Syl. pt. 5, State v. Starr, 158 W. Va. 905, 216 S.E.2d 242 (1975). In Syllabus point 2 of State v. Bradshaw, 193 W. Va. 519, 457 S.E.2d 456 (1995), we held that [w]hether an extrajudicial inculpatory statement is voluntary or the result of coercive police activity is a legal question to be determined from a review of the totality of the circumstances. Ultimately, this issue boils down to whether or not the incriminating statement was freely and voluntarily made, without threats or intimidation, or some promise or benefit held out to the accused. State v. Singleton, 218 W. Va. 180, 184, 624 S.E.2d 527, 531 (2005) (citation omitted).
In the instant case, Mr. Middleton testified at the suppression hearing that the
police promised to obtain a light sentence for him if he confessed, and that an officer
knocked his hat off of his head. The State presented the testimony of several officers
involved with the interrogation. The officers testified that no promises or threats were made
to Mr. Middleton. Mr. Middleton was told that he was not under arrest. Mr. Middleton was
told that he was free to leave. The trial court found the officers' testimony to be credible.
This Court has previously noted that where credibility was the sole issue in a suppression
hearing, we [will] not conclude that a judge abused his discretion in holding a confession [or
statement] admissible. State v. Wilson, 170 W. Va. 443, 445, 294 S.E.2d 296, 298 (1982).
The reason for this is that [i]t is the role of the [factfinder], and not a court on appeal . . . ,
to determine the credibility of witnesses. State ex rel. Corbin v. Haines, 218 W. Va. 315,
322, 624 S.E.2d 752, 759 (2005). See State v. Guthrie, 173 W. Va. 290, 295, 315 S.E.2d
397, 402 (1984) (The trial judge heard the testimony and was in the best position to evaluate
the credibility of witnesses.).
In essence, Mr. Middleton submitted to the post-polygraph interrogation because he was still willing to try to prove [his] innocence[.] Even so, in seeking to show that the statement was involuntary, Mr. Middleton relies heavily upon the fact that the interrogation lasted for about five hours. However, [i]t is axiomatic that prolonged [interrogation] by itself does not establish coercive police conduct. Bradshaw, 193 W. Va. at 534, 457 S.E.2d at 471 (confession not involuntary because of six-hour interrogation). In order to show coercion because of the length of the interrogation, Mr. Middleton needed to point to facts in the record establishing that the questioning adversely affected him or that he had special mental or physical conditions the police exploited to force [the statement from him]. Bradshaw, 193 W. Va. at 535, 457 S.E.2d at 472. Nothing in the record of this case supports finding coercion because of the length of the interrogation. There was testimony during the suppression hearing that Mr. Middleton was allowed to go outside to smoke a cigarette, and that he was provided with drinks and bathroom breaks, and stuff like that. See Bradshaw, 193 W. Va. at 535, 457 S.E.2d at 472 ([T]here were breaks in the questioning and the police officers did not deprive the defendant of any necessities.) .
After examining the totality of the circumstances involved with the interrogation, we find that there was sufficient evidence in the record to support finding that Mr. Middleton's statement was voluntary.
See also State v. Eye, 177 W. Va. 671, 673, 355 S.E.2d 921, 923 (1987) (The confrontation
clause of the Sixth Amendment to the United States Constitution, coupled with the
Fourteenth Amendment, guarantees the right of an accused in a criminal prosecution to
confront the witnesses against him.). In Mason this Court noted that [t]he Confrontation
Clause provides a defendant with two distinct forms of protection: '[T]he right physically
to face those who testify against him, and the right to conduct cross-examination.' Mason,
194 W. Va. at 227 n.7, 460 S.E.2d at 42 n.7 (quoting Pennsylvania v. Ritchie, 480 U.S. 39,
51, 107 S. Ct. 989, 998, 94 L. Ed. 2d. 40, 53 (1987)). The protections afforded by the
Confrontation Clause are not without limits. Trial courts have wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits on such cross-examination
based on concerns about, among other things, harassment, prejudice, confusion of the issues,
the witness' safety, or interrogation that is repetitive or only marginally relevant. Delaware
v. Van Arsdall, 475 U.S. 673, 678- 679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d. 674 (1986).
We need not dwell on the Confrontation Clause issue. The protections offered by the Confrontation Clause simply do not extend to give Mr. Middleton the right to call a witness to testify adversely about a person who was not the complaining victim and who did not testify. In other words, 'the constitution does not require confrontation of witnesses with irrelevant evidence[.]' State v. Quinn, 200 W. Va. 432, 440 n.13, 490 S.E.2d 34, 42 n.13 (1997) (quoting Roundtree v. United States, 581 A.2d 315, 321 (D.C. 1990)).
Moreover, it has been held that [t]he clause emphatically does not confer upon criminal
defendants a right to present any and all relevant substantive evidence in their case in chief. Jones v. Goodwin, 982 F.2d 464, 469 (11th Cir. 1993). In the final analysis, the
Confrontation Clause guarantees an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to whatever extent, the defense
might wish. Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 295, 88 L. Ed. 2d. 15
While it is true that Tom W. reported the sexual abuse to the police, the State prosecuted this case on behalf of S.W., not her father. Whether or not Tom W. had evil motives in having S.W. talk to the police was wholly irrelevant. For the purposes of the prosecution, S.W. was the complaining victim, not Tom W. (See footnote 18) Additionally, as pointed out, Tom W. did not testify at the trial. Consequently, the trial court did not abuse its discretion in excluding the proffered testimony of Officer Duff.
Constitutional protections are implicated because a person who is unable to make bail will be incarcerated before trial. If such person is not given credit for the jail time, a longer period of incarceration will occur than for the person who commits the same offense but is released on pretrial bail.
Roach, 185 W. Va. at 25 n.5, 404 S.E.2d at 417 n.5.
In order to resolve the issue presented by Mr. Middleton, we must first examine the tension that exists between two prior decisions of this Court. Thereafter, we must resolve
1. Tension existing in two prior decisions. This Court has issued two opinions addressing the issue of crediting presentence confinement time to consecutive sentences. As will be shown, the two cases, Echard v. Holland, 177 W. Va. 138, 351 S.E.2d 51 (1986), and State v. Scott, 214 W. Va. 1, 585 S.E.2d 1 (2003), may be interpreted as conflicting each other.
The first opportunity this Court had to address the issue of allocating presentencing jail time to consecutive sentences occurred in Echard v. Holland, 177 W. Va. 138, 351 S.E.2d 51 (1986). In Echard, the defendant was convicted and sentenced separately for crimes committed in Wood County and Ritchie County. The Wood County sentencing order required the sentences be served consecutively. After the defendant began serving the sentences, he filed a habeas corpus petition seeking to obtain release on the grounds that prison officials had failed to properly calculate his good time credit. (See footnote 21) The issue of credit for presentence jail time was not actually raised by the defendant. However, in reviewing the record, this Court found that prison officials improperly deducted good time credit and presentencing jail time credit from both sentences. This Court stated the following with respect to allocating good time and presentence jail time to consecutive sentences:
The maximum terms 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.
Echard,177 W. Va. at 143, 351 S.E.2d at 56-57 (emphasis added). The ruling in Echard, that
presentence jail time is to be allocated to the maximum sentence of consecutive sentences,
stood unchallenged until the majority decision in State v. Scott, 214 W. Va. 1, 585 S.E.2d 1
(2003) (Davis, J., dissented in an opinion in which Maynard, J., joined).
In Scott, the defendant pled guilty to uttering and to transporting drugs into a jail. (See footnote 22) The defendant was sentenced to one to ten years on the uttering conviction, and one to five years on the second conviction. The sentences were ordered to be served consecutively. However, because of the defendant's youthful age, the sentences were suspended, and the defendant was placed in the rehabilitation program at the Anthony Correctional Center. After spending over a year at the Anthony Center, the defendant was released and placed on probation. The defendant eventually violated probation and was ordered to serve his previously suspended consecutive sentences. The order committing the defendant to prison also granted him credit for the time spent confined at the Anthony Center and for the time he was briefly incarcerated after each of his two arrests, which amounted to a total of 567 days. The trial court's order required 565 days of the previous confinement be credited toward the uttering charge and only two days credited toward the drug transportation charge. (See footnote 23) Further, the order imposed the credit for time served on the maximum term of each sentence.
The defendant in Scott appealed the sentencing order and argued that the credit for time served should have been apportioned between the two consecutive sentences imposed by the circuit court, and that the credit for time served should be deducted from the minimum terms of incarceration, not the maximum. In addressing the issues raised by the defendant, the majority opinion placed them in the context of whether credit for time served at the Anthony Center should be allocated any differently than if a defendant had not been confined to the Anthony Center. In doing so, the majority held the following in Syllabus point 6 of the opinion:
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,
W. Va. Code, 25-4-1 to -12, and such probation is subsequently
revoked, pursuant to W. Va. Code, 25-4-6  the circuit
court's sentencing order must credit the defendant with time
spent in incarceration in such a manner that the defendant's date
of eligibility for parole is the same as if the defendant had not
been committed to a young adult offender center and subsequently placed on probation.
Further, footnote 11 of the majority opinion stated, [t]he simplest way to correct the order might be to allocate 365 days toward the first, uttering count, and the remaining 202 days toward the transporting count. Scott, 214 W. Va. at 9 n.11, 585 S.E.2d at 9 n.11.
The dissenters in Scott argued that the majority opinion was inconsistent with controlling law and that the majority opinion attempted to overrule existing law through a footnote. The dissenters addressed the issues as follows:
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.
This was improper for two reasons. First, footnote 11 does not
follow the rule announced 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.' Syllabus Point 2, in part, Walker v. Doe, 210
W. Va. 490, 558 S.E.2d 290 (2001). Syl. pt. 13, State ex rel. Medical Assurance of West Virginia v. Recht, 213 W. Va. 457, 583 S.E.2d 80 (2003). Furthermore, we have explained language in a footnote generally should be considered obiter dicta which, by definition, is language 'unnecessary to the decision in the case and therefore not precedential.' Id., 213 W. Va. at 471, 583 S.E.2d at 94 (quoting Black's Law Dictionary 1100 (7th ed.1999)).
The least of the problems caused by the majority opinion will be appeals 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.
Scott, 214 W. Va. at 10-11, 585 S.E.2d at 10-11.
2. Resolving the tension between Echards and Scott. As pointed out by the dissenters, the decision in Scott did not expressly overrule Echard. As a consequence, Scott left our law in limbo with respect to crediting presentence time for consecutive sentences. For the reasons that follow, we make clear today that, to the extent that Scott may be interpreted as permitting apportionment or outright duplication of credit for presentencing jail time, and allocation of presentence jail time credit to the minimum terms of consecutive sentences, we disapprove of any such interpretation.
We begin by examining the statute relevant to the issue raised by Mr. Middleton, which provides the following:
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, or by a
[magistrate court] having jurisdiction of the offense, such person
may, in the discretion of the court or justice, be given credit on
any sentence imposed by such court or [magistrate] for the term
of confinement spent in jail awaiting such trial and conviction.
W. Va. Code § 61-11-24 (1923) (Repl. Vol. 2005). (See footnote 24) It is clear that the above statute is silent as to how credit for presentencing jail time is to be allocated when sentences are required to run consecutively. This Court has indicated that [w]hen a statute is silent on such an important factor, we look to the overarching design to glean the legislative intent for [the] statute. West Virginia Human Rights Comm'n v. Garretson, 196 W. Va. 118, 127, 468 S.E.2d 733, 742 (1996). We have also held that [s]tatutes which relate to the same subject matter should be read and applied together so that the Legislature's intention can be gathered from the whole of the enactments. Syl. pt. 3, Smith v. State Workmen's Comp. Comm'r, 159 W. Va. 108, 219 S.E.2d 361 (1975). See also Syl. pt. 5, in part, Fruehauf Corp. v. Huntington Moving & Storage Co., 159 W. Va. 14, 217 S.E.2d 907 (1975) (Statutes which relate to the same persons or things, or to the same class of persons or things, or statutes which have a common purpose will be regarded in pari materia to assure recognition and implementation of the legislative intent.). In carrying out this task we are mindful that:
A statute should be read and applied as to make it accord
with the spirit, purposes and objects of the general system of law
of which it is intended to form a part; it being presumed that the
legislators who drafted and passed it were familiar with all
existing law, applicable to the subject matter, whether
constitutional, statutory or common, and intended the statute to
harmonize completely with the same and aid in the effectuation
of the general purpose and design thereof, if its terms are
Syl. pt. 3, Buda v. Town of Masontown, 217 W. Va. 284, 617 S.E.2d 831 (2005) (quoting Syl. pt. 5, State v. Snyder, 64 W. Va. 659, 63 S.E. 385 (1908)). We believe that the Legislature intended to harmonize the allocation of credit for presentence jail time under W. Va. Code § 61-11-24 with the allocation of good time credit under W. Va. Code § 28-5-27 (1984) (Repl. Vol. 2004). See Stanley v. Department of Tax and Revenue, 217 W. Va. 65, 71, 614 S.E.2d 712, 718 (2005) ([T]his Court must generally apply, when and where feasible, the principle of the harmonization of statutes[.]).
W. Va. Code § 28-5-27(c) provides that [e]ach inmate committed to the custody of the commissioner of corrections . . . shall be granted one day good time for each day he or she is incarcerated, including any and all days in jail awaiting sentence and which is credited by the sentencing court to his or her sentence pursuant to [W. Va. Code § 61-11- 24]. (Emphasis added). It is further provided under W. Va. Code § 28-5-27(e) that [a]n inmate under two or more consecutive sentences shall be allowed good time as if the several sentences, when the maximum terms thereof are added together, were all one sentence.
It is clear that under W. Va. Code § 28-5-27 good time credit may be earned
while serving a prison sentence and while in jail awaiting sentencing. Furthermore, under
this statute, when a defendant is given consecutive sentences, good time credit is not
allocated to each sentence. It is applied to the aggregate of the maximum sentences as
though they were one. We believe that the Legislature intended for the allocation of credit
for presentence jail time to be consistent with the manner in which good time credit is
allocated. (See footnote 25) This is the conclusion that Echard reached. Moreover, we note that courts of
other jurisdictions . . . have uniformly held that, when consecutive sentences are imposed for
two or more offenses, periods of presentence incarceration may be credited only against the
aggregate of all terms imposed[.] Endell v. Johnson, 738 P.2d 769, 771 (Alaska Ct. App.
1987). Accord State v. Cuen, 761 P.2d 160, 161 (Ariz. Ct. App. 1988); Schubert v. People,
698 P.2d 788, 795 (Colo. 1985); Barnishin v. State, 927 So. 2d 68, 71 (Fla. Dist. Ct. App. 2006); State v. Tauiliili, 29 P.3d 914, 918 (Haw. 2001); State v. Hoch, 630 P.2d 143, 144 (Idaho 1981); People v. Latona, 703 N.E.2d 901, 907 (Ill. 1998); Payne v. State, 838 N.E.2d 503, 510 (Ind. Ct. App. 2005); Commonwealth v. Carter, 411 N.E.2d 184, 186 (Mass. App. Ct. 1980); People v. Watts, 464 N.W.2d 715, 716 (Mich. Ct. App. 1991); State v. Anderson, 520 N.W.2d 184, 187 (Minn. Ct. App. 1994); State v. Riley, 761 S.W.2d 745, 746 (Mo. Ct. App. 1988); State v. Sanchez, 520 N.W.2d 33, 36 (Neb. Ct. App. 1994); State v. Decker, 503 A.2d 796, 797 (N.H. 1985); State v. Miranda, 779 P.2d 976, 979 (N.M. 1989); Nissel v. Pearce, 764 P.2d 224, 228 (Ore. 1988); State v. Richardson, 245 S.E.2d 754, 760- 761 (N.C. 1978); State v. Arcand, 403 N.W.2d 23, 24 (N.D. 1987); State v. Percy, 612 A.2d 1119, 1127 (Vt. 1992); State v. Wolfe, 625 N.W.2d 655, 657 (Wis. Ct. App. 2001).
In view of the foregoing, we hold that, consistent with our decision in Echard v. Holland, 177 W. Va. 138, 351 S.E.2d 51 (1986), when a trial court awards credit for presentence incarceration to a defendant receiving consecutive sentences, the period of presentence incarceration must be credited against the aggregated maximum term of the consecutive sentences. To the extent that language in the decision of State v. Scott, 214 W. Va. 1, 585 S.E.2d 1 (2003), suggests a different allocation of presentence credit to consecutive sentences, it is disapproved.
In the instant proceeding, Mr. Middleton received consecutive sentences of ten to twenty years and one to five years. Thus, the effective sentence was eleven to twenty-five years. Mr. Middleton was credited with serving 185 days in jail while awaiting sentence. The 185 days is applied against the twenty-five year maximum. Although the trial court set out the credit for presentence incarceration directly to the sentence for ten to twenty years, we find no error because the ultimate result is the same for purposes of determining the maximum discharge date. Consequently, we find no error in the sentencing disposition. (See footnote 26)