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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2010 Term



_______________


No. 35140

_______________



STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee

v.

DAVID HAROLD EILOLA,
Defendant Below, Appellant
______________________________________________________

Appeal from the Circuit Court of Kanawha County
Honorable Herman G. Canady, Judge
Criminal Action No. 06-F-240

REVERSED AND REMANDED
_____________________________________________________

Submitted: March 10, 2010
Filed: November 23, 2010

Edward L. Bullman, Esq.
Bullman and Bullman
Charleston, West Virginia
Attorney for Appellant
Darrell McGraw, Esq.
Attorney General
Dawn E. Warfield, Esq.
Deputy Attorney General
Charleston, West Virginia
Attorneys for Appellee

 
JUSTICE BENJAMIN delivered the Opinion of the Court.

JUSTICE MCHUGH concurs and reserves the right to file a concurring opinion.

CHIEF JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion.
 
 
SYLLABUS BY THE COURT


            
1.       “[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.” Syllabus Point 4, State v. Goodnight, 169 W. Va. 366, 287 S.E.2d 504 (1982).

            
2.       “The Supreme Court of Appeals reviews sentencing orders, including orders of restitution made in connection with a defendant's sentencing, under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands.” Syllabus Point 1, State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997).

            3.      “In reviewing the findings of fact and conclusions of law of a circuit court concerning an order on a motion made under Rule 35 of the West Virginia Rules of Criminal Procedure, we apply a three-pronged standard of review. We review the decision on the Rule 35 motion under an abuse of discretion standard; the underlying facts are reviewed under a clearly erroneous standard; and questions of law and interpretations of statutes and rules are subject to a de novo review.” Syllabus Point 1, State v. Head, 198 W. Va. 298, 480 S.E.2d 507 (1996).
              
            4.      “The Double Jeopardy and Equal Protection Clauses of the West Virginia Constitution require that time spent in jail before conviction shall be credited against all terms of incarceration to a correctional facility imposed in a criminal case as a punishment upon conviction when the underlying offense is bailable.” Syllabus Point 6, State v. McClain, 211 W. Va. 61, 561 S.E.2d 783 (2002).

            5.      “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 [2001] 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.” Syllabus Point 6, State v. Scott, 214 W. Va. 1, 585 S.E.2d 1 (2003).

            6.      “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.” Syllabus Point 6, State v. Middleton, 220 W. Va. 89, 640 S.E.2d 152 (2006).

            7.      For purposes of calculating a defendant's parole eligibility date, credit for time served by the defendant prior to being sentenced should be applied to the aggregated minimum term of all the consecutive sentences combined. To the extent that language in State v. Middleton, 220 W. Va. 89, 640 S.E.2d 152 (2006), mandates that the period of time served during presentence incarceration be credited only against the aggregated maximum term of the consecutive sentences, it is hereby overruled.
 
 
  BENJAMIN, Justice:

            The instant action is before this Court upon the appeal of David Harold Eilola from a December 10, 2008, amended order of the Circuit Court of Kanawha County, which re-sentenced Appellant for purposes of appeal following his convictions for Attempted Murder in the First Degree, Malicious Assault, Arson in the Fourth Degree, Violation of a Domestic Violence Protective Order, and Domestic Battery. This Court granted Appellant's Petition for Appeal only as to Appellant's third assignment of error, regarding the proper application of credit for time served by Appellant prior to sentencing. Appellant contends that this Court's holding in State v. Middleton, 220 W. Va. 89, 640 S.E.2d 152 (2006), regarding credit for time served, should be reconsidered and reversed in part on equal protection grounds. The State agrees that the opinion should be reconsidered, for reasons discussed more fully herein. This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. For the reasons expressed below, the rulings of the Circuit Court of Kanawha County are reversed and remanded with directions.

I.
FACTUAL AND PROCEDURAL HISTORY

            On March 29, 2006, the Appellant was taken into custody. Being unable to post the “cash only” bond of $50,000, he has remained in custody since that time. On April 26, 2007, the Appellant was convicted of Attempted Murder in the First Degree, Malicious Assault, Arson in the Fourth Degree, Violation of a Domestic Violence Protective Order, and Domestic Battery. Subsequently, by order entered August 8, 2007, the circuit court imposed consecutive sentences of three to fifteen years for Attempted First Degree Murder; two to ten years for Malicious Assault; two years for Fourth Degree Arson; twelve months for Violation of a Domestic Violence Protective Order; and twelve months for Domestic Battery. (See footnote 1) Because the Appellant had been incarcerated while awaiting trial, conviction and sentencing, the circuit court ordered that 495 days of credit for time served be applied to his sentence of three to fifteen years for Attempted First Degree Murder. On August 16, 2007, the circuit court prepared a certified penitentiary commitment order, setting the Appellant's effective sentencing date as March 29, 2006, to reflect the 495 days of credit for time served.

            On August 21, 2007, the State filed a motion to correct the penitentiary commitment, stating:

        The commitment is incorrect because the commitment attributes the defendant's credit for time served against the initial (parole eligibility) portion of the sentence in a manner inconsistent with the decisions of the West Virginia Supreme Court of Appeals in State v. Middleton, 220 W. Va. 89 (2006). Syllabus Point #6 of the Middleton case states,

                        “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.”

                Thus, the law requires that credit for time served in a consecutive sentence be credited against the aggregated maximum of the defendant's sentence. Simply, the 495 days credit for time served is reduced from the “back” end of the sentence, not the front. The West Virginia rule is consistent with the rule in Alaska, Colorado, Florida, Hawaii, Idaho, Illinois, Indiana, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New Hampshire, New Mexico, Oregon, North Carolina, North Dakota, Vermont, and Wisconsin. See, Middleton, supra, for list.

                      The parole eligibility of the defendant is calculated from the commitment and the effective sentence date. The commitment prepared by the Clerk is inconsistent with the controlling decisional law of this State.

                      WHEREFORE, the State of West Virginia asks that this Court void the prior commitment and require the issuance of a new commitment consistent with the controlling law of this State.


            On November 21, 2007, the circuit court granted the State's motion directing that “the commitment shall be amended to reflect that the effective sentencing date and the actual sentencing date shall be the 6th day of August, 2007", and that “the defendant's credit for time served calculated at four hundred ninety-five (495) days shall be deducted from the maximum aggregated sentence by the Commissioner of Corrections[.]” Pursuant to this order, an Amended Commitment was certified to the Commissioner of Corrections on December 20, 2007, reflecting an effective sentence date of August 6, 2007.

            On March 13, 2008, Appellant was re-sentenced for purposes of appeal. He was re-sentenced again on October 15, 2008, and again by amended order entered December 10, 2008, in order to perfect the instant appeal, which reflects the circuit court's previous rulings regarding the effective sentence date and deduction of Appellant's credit for time served from the maximum aggregated sentence. It is from these sentencing orders that Appellant now appeals.

II.

STANDARD OF REVIEW

      The sole assignment of error to be considered by this Court is whether refusing to give the Appellant credit for time served prior to conviction in calculating his parole eligibility date violates the constitutional guarantees of equal protection under the law. Generally, “[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, where it is alleged that the circuit court has failed to impose a sentence consistent with the law, appellate review is warranted. “The Supreme Court of Appeals reviews sentencing orders, including orders of restitution made in connection with a defendant's sentencing, under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands.” Syl. Pt. 1, State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997). We held more specifically in Syllabus point 1 of State v. Head, 198 W. Va. 298, 480 S.E.2d 507 (1996), that:        

In reviewing the findings of fact and conclusions of law of a circuit court concerning an order on a motion made under Rule 35 of the West Virginia Rules of Criminal Procedure, we apply a three-pronged standard of  review. We review the decision on the Rule 35 motion under an abuse of discretion standard; the underlying facts are reviewed under a clearly erroneous standard; and questions of law and interpretations of statutes and rules are subject to a de novo review.

With these principles in mind, we now turn to the issue before this Court.


III.

DISCUSSION

            Herein, the Appellant contends, and the State agrees, that a portion of this Court's prior ruling in State v. Middleton should be reconsidered because it results in loss of credit on a sentence for periods of incarceration based solely upon one's economic status or lack of resources. (See footnote 2) Appellant presents the following example to demonstrate how this Court's prior holding in State v. Middleton is problematic:

               Two identical twins, separated at birth, are raised in similar environments. Both have the same or similar educational, vocational, medical, psychological and criminal backgrounds. Both commit the same crime of breaking and entering of a non-dwelling with a potential sentence of 1-10 years in the penitentiary. Because of the fairness of the bail system, each has a bond set in the amount of $50,000 with the option of posing 10% cash. Both have trial dates that for whatever reason results in sentencing one year from the date of arrest. The first individual cannot make bond and spends one year in confinement before trial and sentencing. The second brother has a girlfriend who the week before his arrest buys the winning lottery ticket winning the $5,000 necessary to post her boyfriend's bond. Both are sentenced on the same day to 1-10 years. Both are model inmates and make parole the first time they are eligible. The first brother has spent two years confinement based upon the same facts as his sibling who happened to be dating a lucky lottery winner.

 
            By giving Appellant 495 days credit for time served on the back end of his sentence instead of the front end, the Appellant contends that he effectively received no credit for time served for the purposes of calculating his parole eligibility date, thus violating the constitutional guarantee of equal protection under the law. Appellant asserts, and the State agrees, that “confinement is confinement whether it is spent in the custody of the Department of Corrections or in the custody of the Regional Jail system.” However, under the current formula for calculating presentence credit, “two individuals similarly situated are subjected to different punishments for the same criminal conduct based solely upon economic status if one is unable to make bail.”

            West Virginia Code §61-11-24 (1923) provides:

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 justice of the peace 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 justice for the term of confinement spent in jail awaiting such trial and conviction.


            Our prior decisions have modified the statute to the extent that it gives a trial court discretion to refuse to award a defendant credit for presentence jail time. See Martin v. Leverette, 161 W. Va. 547, 244 S.E.2d 39 (1978). Indeed, because of the fundamental constitutional rights involved, this Court has held that the granting of presentence credit is in fact mandatory:

“The Double Jeopardy and Equal Protection Clauses of the West Virginia Constitution require that time spent in jail before conviction shall be credited against all terms of incarceration to a correctional facility imposed in a criminal case as a punishment upon conviction when the underlying offense is bailable.”

Syl. Pt. 6, State v. McClain, 211 W. Va. 61, 561 S.E.2d 783 (2002). We have further held:

The equal protection argument runs on the premise that an invidious discrimination based on wealth occurs where the indigent defendant, unable to obtain bail, stays in jail, while his wealthier counterpart is free on bond and, receiving the same ultimate sentence, will have served less total time since he had no jail time.


Martin v. Leverette, 161 W. Va. 547, 550, 244 S.E.2d 39, 41(citing Durkin v. Davis, 538 F.2d 1037 (4th Cir. 1976)). We further elaborated on the fundamental constitutional underpinning of this important principle:

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.

State ex rel. Roach v. Dietrick, 185 W. Va. 23, 25 n. 5, 404 S.E.2d 415, 417 n. 5 (1991).


            While we have addressed the concern about inequity in the treatment of economically disadvantaged inmates, we have been careful to state that consideration of a date for parole eligibility is simply that; it is no more than that. In other words, an inmate becomes eligible for parole on that date, but parole is not guaranteed. Thus, an inmate becomes entitled to parole consideration if he or she has served the requisite portion of his or her sentence. West Virginia Code §62-12-13(b)(1)(A)(2006) provides, in relevant part:

 “Any inmate of a state correctional center is eligible for parole if he or she . . . [h]as 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. . .”

            Parole is not a right, and eligibility for parole does not guarantee the defendant's release from prison. State v. Scott, 214 W. Va. 1, 7, 585 S.E.2d 1, 7 (2003). See also State v. Lindsey, 160 W. Va. 284, 291 233 S.E.2d 734 738-39 (1977)(“One convicted of a crime and sentenced to the penitentiary is never entitled to parole.”); Wanstreet v. Bordenkircher, 166 W. Va. 523, 536, 276 S.E.2d 205, 213 (1981)(“[T]here is no automatic right to parole once the prisoner crosses the threshold of eligibility.”)


            Eligibility for consideration of parole, however, is entitled to certain constitutional protections. See Adkins v. Bordenkircher, 164 W. Va. 292, 296, 262 S.E.2d 885, 887 (1980)(“Parole eligibility is another facet of penal law scrutinized under the Ex Post Facto Clause.”) In Syl. Pt. 6, State v. Scott, 214 W. Va. 1, 585 S.E.2d 1, this Court recognized that the opportunity to appear before the Parole Board is a significant right that should be protected:

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 [2001] 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.


Id. Thus, in Scott, we acknowledged that the time an inmate spends incarcerated should be credited toward the inmate's parole eligibility date. Id. (overruled in part). (See footnote 3)

            This Court has issued three opinions addressing the issue of crediting presentence confinement time to consecutive sentences. In Echard v. Holland, 177 W. Va. 138, 351 S.E.2d 51 (1986), this Court evaluated the issue of whether a prisoner was entitled to have “good time” deducted from each of two consecutive sentences he was serving. (See footnote 4) This Court found that the defendant was not entitled to have “warden's good time” and “over- time good time” earned by him deducted from each of two consecutive sentences he was then serving. Rather, the defendant was only entitled to take a deduction once from the total maximum sentence. Therein, this Court stated:

In cases of consecutive sentences, West Virginia Code §28-5-27(e) requires that good time shall be allowed to the inmate as if the consecutive sentences, when the maximum terms are added together, were one sentence. 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).

            Subsequently, in State v. Scott, 214 W. Va. 1, 585 S.E.2d 1, this Court again addressed presentence crediting issues in a case wherein the defendant pled guilty to the charge of uttering and to transporting drugs into a jail, and was sentenced to one to ten years on the uttering charge, and one to five years for transporting drugs into a jail. Id. at 4, 585 S.E.2d at 4. The sentences were ordered to be served consecutively. However, because the defendant was a youth at the time of the crimes, the sentences were suspended and the defendant was placed in a rehabilitation program at the Anthony Correctional Center. After spending over a year at the Anthony Center, the defendant was released and placed on probation. Because the defendant eventually violated probation, he was ordered to serve his previously suspended 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 to be credited toward the uttering charge and only two days credited toward the drug transportation charge. Further, the order imposed the credit for time served on the maximum term of each sentence.
            
            The defendant 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. This Court held in Syllabus Point 6 that:

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 [2001] 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.

   
Id., Syl. Pt. 6.

            However, in footnote 11 of the majority opinion, it 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.” Id. at 9 n. 11, 585 S.E.2d at 9 n. 11. Justice Davis dissented from the majority opinion in Scott. In her separate opinion, to which Justice Maynard joined, in part, Justice Davis argued that the majority opinion was inconsistent with controlling law in Echard v. Holland, and that the majority opinion attempted to overrule existing law through a footnote. Specifically, Justice Davis wrote that Syllabus Point 6 in the opinion failed to explain exactly how credit for time served should be awarded, and that the rule in Echard should have been applied. She stated that: “[s]ince no statute actually addressed how to distribute credit for time served prior to sentencing, the Court in Echard applied the formulation used in the good time credit statute.” Id. at 10, n.5, 585 S.E.2d at 10 n.5.

            Following this Court's decision in Scott, this Court attempted to resolve the tension between Echard and Scott in State v. Middleton, 220 W. Va. 89, 640 S.E.2d 152. In Middleton, the Appellant sought to have pre-trial incarceration time credited to both of his consecutive sentences. This Court held in Syllabus Point 6 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.

    
Id. (Emphasis added). Specifically, the opinion stated that it disapproved of any interpretation of Scott that would permit “apportionment or outright duplication of credit for presentencing jail time, and allocation of presentence jail time credit to the minimum terms of consecutive sentences.” 220 W. Va. at 106, 640 S.E.2d at 169 (emphasis added). Because our presentence credit statute, W. Va. Code §61-11-24, is silent as to how credit for presentencing jail time is to be allocated when sentences are required to run consecutively, this Court explained the construction of the presentence credit statute under the doctrine of in pari materia, stating that “statutes 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.” 220 W. Va. at 169-70, 640 S.E.2d at 106-07. Based upon this principle, the Court then stated that “[w]e believe 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).” 220 W. Va. at 107, 640 S.E.2d at 170. (See footnote 5) In arriving at this conclusion, the Court noted 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[.]” 220 W. Va. at 107, 640 S.E.2d at 170 (quoting Endell v. Johnson, 738 P.2d 769, 771 (Alaska Ct. App. 1987); Accord State v. Cuen, 158 Ariz. 86, 761 P.2d 160, 161 (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, 96 Hawaii 195, 29 P.3d 914, 918 (2001); State v. Hoch, 102 Idaho 351, 630 P.2d 143, 144 (1981); People v. Latona, 184 Ill.2d 260, 234 Ill. Dec. 801, 703 N.E.2d 901, 907 (1998); Payne v. State, 838 N.E.2d 503, 510 (Ind.Ct.App. 2005); Commonwealth v. Carter, 10 Mass.App.Ct. 618, 411 N.E.2d 184, 186 (1980); People v. Watts, 186 Mich.App. 686, 464 N.W.2d 715, 716 (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, 2 Neb.App. 1008, 520 N.W.2d 33, 36 (1994); State v. Decker, 127 N.H. 468, 503 A.2d 796, 797 (1985); State v. Miranda, 108 N.M. 789, 779 P.2d 976, 979 (1989); Nissel v. Pearce, 307 Or. 102, 764 P.2d 224, 228 (1988); State v. Richardson, 295 N.C. 309, 245 S.E.2d 754, 760-61 (1978); State v. Arcand, 403 N.W.2d 23, 24 (N.D. 1987); State v. Percy, 158 Vt. 410, 612 A.2d 1119, 1127 (1992); State v. Wolfe, 242 Wis.2d 426, 625 N.W.2d 655, 657 (2001)).

            In the case sub judice, the State submits that none of our statutes nor the Echard opinion itself mandate that presentence credits granted pursuant to W. Va. Code §61- 11-24 be deducted only from the aggregate maximum term of consecutive sentences in calculating the inmate's parole eligibility date under W. Va. Code §62-12-13(b)(1)(A). The State believes that the dissenting opinion in Scott was the first to suggest that Echard created a formula for determining how good time credit must be distributed when consecutive sentences are imposed. (See footnote 6) However, the State contends that the calculation of credit for time served for the purpose of determining a parole eligibility date was not an issue in Echard, and the decision did not result in a new point of law regarding the application of presentence credits to consecutive sentences. See Syl. Pt. 2, in part, Walker v. Doe, 210 W. Va. 490, 558 S.E.2d 290(2001)(“New points of law. . . will be articulated through syllabus points as required by our state constitution.”) Syllabus Point 2 of Echard states: “'An 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.' W. Va. Code §28-5-27(e)(Cum. Supp. 1986).” 177 W. Va. 138, 351 S.E.2d 51. Thus, the State argues that the Echard opinion only dealt with the proper method of calculating an inmate's minimum discharge date, and nothing further. The State also submits that the proper method of applying credit for time served to consecutive sentences for determining a parole eligibility date was not presented in Middleton either. Rather, the Appellant in Middleton improperly sought to have pre-trial incarceration time credited to both of his consecutive sentences. The State contends that Syllabus Point 6 of Middleton elevated the Echard decision to a rule of law in a manner inconsistent with its original holding.

            The State also asserts that while this Court accurately observed in State v. Middleton that courts of other jurisdictions have indeed uniformly held that periods of presentence incarceration may be credited only against the aggregate of all terms imposed, the cases cited in Middleton merely stand for the proposition that inmates receive only one credit for time served on consecutive sentences, not that such credit must be applied only to the aggregate maximum sentence. (See footnote 7) Appellant has clarified that he is not seeking apportionment or duplication of credit for time served; it is merely Middleton's statement that the Court disapproves of permitting “allocation of presentence jail time credit to the minimum terms of consecutive sentences” that Appellant believes creates the equal protection problem by delaying his minimum parole eligibility date. Appellant urges this Court to consider how to harmonize the allocation of credit for presentence jail time under W. Va. Code §61-11-24 and the allocation of good time credit under W. Va. Code §28-5-27 with the minimum parole eligibility requirements of W. Va. Code §62-12-13(b)(1)(A). In assessing these statutes, the State asserts that “[i]t 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.” State v. Middleton, 220 W. Va. at 107, 640 S.E.2d at 170. Thus, before an inmate may be granted good time credit for time served in jail awaiting sentencing, any credit for time served which is granted pursuant to W. Va. Code §61-11-24 has to first be deducted from the aggregate terms of consecutive sentences before applying any good time credits in order to arrive at the inmate's minimum discharge date.

            Furthermore, the State asserts that good time credits may be forfeited for rule violations pursuant to subsection (f) of the statute, (See footnote 8) and the inmate's minimum discharge date recalculated pursuant to subsection (h). (See footnote 9) By contrast, credit for time served in jail awaiting trial and sentencing pursuant to W. Va. Code §61-11-24 does not change; it has already been served and has been credited to the inmate's sentence by the circuit court's sentencing order. Thus, the State contends it would be logical to include presentence jail time in calculating the total period of incarceration to arrive at the inmate's parole eligibility date pursuant to W. Va. Code §62-12-13(b)(1)(A).


            Upon examination of the statutory framework of W. Va. Code §61-11-25 regarding credit for presentence jail time, and W. Va. Code §28-5-27 regarding good time credit, we find that this Court's prior statement that the Legislature must have intended to harmonize the application of the allocation of credit for presentence jail time with the allocation of good time credit was indeed incorrect. While both “credit for time served” and “good time credit” will ultimately determine the amount of time a defendant serves on a sentence, each type of credit serves a separate and distinct purpose. As this Court recognized in Syllabus Point 6 of State v. McClain, 211 W. Va. 61, 561 S.E.2d 783, a defendant is constitutionally entitled to credit for time served. However, a defendant is not constitutionally entitled to good time credit. Rather, pursuant to W. Va. Code §28-5-27(f), the award of good time credit is at the discretion of the warden. Thus, this Court's prior statement that the Legislature must have intended to harmonize the application of these two very distinct aspects of calculating a sentence was simply incorrect.

            The parole statute, W. Va. Code §62-12-13(b)(1)(A)(2006) provides, in relevant part:

“Any inmate of a state correctional center is eligible for parole if he or she . . . [h]as 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. . .”


The statute does not expressly exclude the presentence time served to which the defendant is entitled from the consideration of how much time has been served. Similarly, the rules and regulations promulgated by the Parole Board pursuant to W. Va. Code §62-12-13(g) simply state that: “[i]f the inmate is serving an indeterminate sentence, he or she must have served the minimum term of the sentence.” W. Va. CSR §92-1-4.1.1.a. Moreover, the title of W. Va. CSR §92-1-4.1 simply states “Eligibility Based on Time Served.” Because nothing in these rules or regulations expressly excludes credit for time served pretrial from the calculation of time served for purposes of establishing parole eligibility, we find that such time should be included in determining whether a defendant has served the minimum term of the sentence. (See footnote 10)

                            
            Furthermore, in footnote 25 of Middleton, this Court contemplated an alternative construction of the statutes, finding that

A defendant would have his/her “good time” earned during “presentence incarceration” allocated to the aggregate maximum term of consecutive sentences, as required by W. Va. Code §28-5-27; while the “actual” presentence incarceration time would be apportioned between the minimum confinement periods of consecutive sentences, as implicitly suggested by Scott. We do not believe the Legislature intended to have presentence incarceration “good time” and presentence “actual time served” allocated in such an irrational manner. Moreover, as pointed out by the dissenters in Scott, allocating “actual” presentence incarceration time to the minimum terms of consecutive sentences would allow many defendants to be eligible for parole before they have served a full day in prison. Clearly the Legislature did not intend these results.

220 W. Va. at 107, 640 S.E.2d at 170. However, as the State correctly contends, W. Va. Code §62-12-13(f) (See footnote 11) clearly contemplates that a defendant may have served his or her total minimum sentence prior to being transferred to a state correctional center. When read together, these sections of the Code clearly imply that time served at a regional jail prior to sentencing does, in fact, count towards the minimum sentence that must be served to become eligible for a parole hearing. (See footnote 12)
            
            In the case sub judice, Appellant was sentenced to indeterminate terms of 3-15 years in the penitentiary on Count One and 2-10 years on Count 2; and a determinate sentence of 2 years on Count 3 (See footnote 13) ; followed by 12 months in jail for each of Counts 4 and 5. (See footnote 14) These sentences were set to run consecutively; thus, his effective penitentiary sentence is 6- 27 years, and Appellant's time served (495 days) should be credited against the 6-year minimum in calculating his parole eligibility date. As suggested by the parties, there is no need to apportion the credit among Appellant's various sentences; the time served credit applies to the total effective sentence, not separately to each component of the sentence. Because the effect of the circuit court's ruling upon the Appellant would require an additional period of confinement of almost 1 ½ years before his parole eligibility date, we think it constitutionally appropriate that one credit for time served should be applied to the aggregate minimum terms of all consecutive sentences combined. Thus, the circuit court's effective sentencing date should be adjusted to March 29, 2006, the date Appellant was first incarcerated on these charges while awaiting trial, to give him credit for 495 days toward his parole eligibility date.

            Furthermore, to correct the apparent confusion caused in our prior opinions in Scott, Echard and Middleton, and to resolve the issue presented by the Appellant for future cases, we now expressly hold that for purposes of calculating a defendant's parole eligibility date, credit for time served by the defendant prior to being sentenced should be applied to the aggregate minimum term of all the consecutive sentences combined. To the extent that language in State v. Middleton, 220 W. Va. 89, 640 S.E.2d 152 (2006), mandates that the period of time served during presentence incarceration be credited only against the aggregated maximum term of the consecutive sentences, it is hereby overruled.

IV.

CONCLUSION

            For the reasons stated above, the December 10, 2008, amended sentencing order of the Circuit Court of Kanawha County is hereby reversed and remanded with directions to adjust the Appellant's effective sentencing date to March 29, 2006, the date Appellant was first incarcerated on these charges while awaiting trial, to give him credit for 495 days toward his parole eligibility date.



                                                 Reversed and Remanded.


Footnote: 1
       Pursuant to the express provisions of the December 10, 2008, amended sentencing order, once the defendant completes his penitentiary sentences or is paroled, the defendant shall be remanded into the custody of the West Virginia Regional Jail and Correctional Facility Authority for service of the misdemeanor sentence.
Footnote: 2
       This Court acknowledges the candor and professionalism of the Attorney General's office in briefing this matter, as the State had the difficult task of advancing a position contrary to that argued below in an attempt to correct the obvious errors involved in the sentencing of the Appellant.
Footnote: 3
       We discuss State v. Scott in greater detail infra.
Footnote: 4
       In Echard, the defendant was convicted and sentenced separately for crimes
committed in Wood County and Ritchie County. The Wood County sentencing order required that the sentences be served consecutively.
Footnote: 5
       “[T]he accumulation of good time is dependent upon the prisoner's behavior or 'good conduct' while incarcerated.” State ex rel. Gordon v. McBride, 218 W. Va. 745, 749, 630 S.E.2d 55, 59 (2006). Pursuant to W. Va. Code §28-5-27(e), good time credit is deducted from the aggregate maximum term of consecutive sentences. W. Va. Code §28-5- 27(e)(1984) provides 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.” The application of good time to an inmate's sentence is then used to calculate his or her minimum discharge date pursuant to subsection (g) of the statute:


Each inmate, upon his or her commitment to and being received into the custody of the commissioner of the department of corrections, or upon his return to custody as the result of violation of parole pursuant to section nineteen, article twelve, chapter sixty-two of this code, shall be given a statement setting forth the term or length of his or her sentence or sentences and the time of his minimum discharge computed according to this section.

W. Va. Code §28-5-27(g) (1984) (Emphasis added).

            West Virginia Code §28-5-27(c) (1984) provides:

 Each inmate committed to the custody of the commissioner of corrections and incarcerated in a penal facility pursuant to such commitment 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 section twenty-four, article eleven, chapter sixty-one of this code or for any other reason relating to such commitment. 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.


Footnote: 6
       “Since no statute actually addressed how to distribute credit for time served prior to sentencing, the Court in Echard applied the formulation used in the good time credit statute.” State v. Scott, 214 W. Va. at 10 n.5, 585 S.E.2d at 10, n.5 (Davis, J. dissenting).
Footnote: 7
       The State persuasively points out that the complete quote from the Endell opinion cited in Middleton sheds more light on the instant issue. It reads as follows:

                [C]ourts of other jurisdictions, construing similar credit-for-time-served statutes, 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: an offender who receives consecutive sentences is entitled to credit against only the first sentence imposed, while an offender sentenced to concurrent terms in effect receives credit against each sentence.

738 P.2d at 771 (emphasis added). Thus, Endell appears to simply stand for the proposition that a defendant may only receive one credit for time served on consecutive sentences; it does not state that such credit must be applied only to the aggregate maximum sentence.

      After thoroughly reviewing the authorities cited in Middleton, we agree with the State's analysis of these cases and find that none of these other jurisdiction's holdings expressly mandate that presentence credit be applied to the aggregate maximum sentence. Rather, these cases simply seem to stand for the proposition that a defendant should only receive one credit for time served on consecutive sentences. See, e.g., State v. Tauiliili, 29 P.3d at 918 (statute required that presentence credit be applied to both the minimum and maximum imprisonment terms; “Once credit has been granted, no additional purpose is served by granting a second or 'double credit' against a later consecutive sentence.”); State v. Hoch, 630 P.2d at 144 (defendant was not entitled to credit for time served prior to convictions against each of the two burglary convictions he received; “We find no intent of the legislature that a person so convicted should have that credit pyramided simply because he was sentenced to consecutive terms for separate crimes.”); People v. Watts, 464 N.W.2d at 716(“[A] defendant who has received a consecutive sentence is not entitled to credit against the subsequent sentence for time served. Rather any credit for time served should be applied against the first sentence.”); State v. Arcand, 403 N.W.2d at 24 (“jail credit should be applied only to the first of consecutive sentences, because to do otherwise would constitute double credit.”).

Footnote: 8
       W. Va. Code §28-5-27(f) (1984):

                The commissioner of corrections shall promulgate separate disciplinary rules for each institution under his control in which adult felons are incarcerated, which rules shall describe acts which inmates are prohibited from committing, procedures for charging individual inmates for violation of such rules and for determining the guilt or innocence of inmates charged with such violations and the sanctions which may be imposed for such violations. A copy of such rules shall be given to each inmate. For each such violation, by an inmate so sanctioned, any part or all of the good time which has been granted to such inmate pursuant to this section may be forfeited and revoked by the warden or superintendent of the institution in which the violation occurred. The warden or superintendent, when appropriate and with approval of the commissioner, may restore any good time so forfeited.
Footnote: 9
       W. Va. Code §28-5-27(h) (1984) provides:

                Each inmate shall be given a revision of the statement described in subsection (g) if and when any part or all of the good time has been forfeited and revoked or restored pursuant to subsection (f) whereby the time of his or her earliest discharge is changed.
Footnote: 10
       In addition to relevant West Virginia statutory provisions, we also find the provisions of the Model Penal Code persuasive on this issue. Section 7.09 of the Model Penal Code, entitled “Credit for Time of Detention Prior to Sentence; Credit for Imprisonment Under Earlier Sentence for Same Crime” provides:

                (1) When a defendant who is sentenced to imprisonment has previously been detained in any state or local correctional or other institution following his [conviction of][arrest for] the crime for which such sentence is imposed, such period of detention following his [conviction] [arrest] shall be deducted from the maximum term, and from the minimum, if any, of such sentence. The officer having custody of the defendant shall furnish a certificate to the Court at the time of sentence, showing the length of such detention of the defendant prior to sentence in any state or local correctional or other institution, and the certificate shall be annexed to the official records of the defendant's commitment.
. . .

Model Penal Code §7.09 (Am. Law Inst. 1962).
Footnote: 11
       W. Va. Code §62-12-13(f) provides:

                Any person serving a sentence on a felony conviction who becomes eligible for parole consideration prior to being transferred to a state correctional center may make written application for parole. The terms and conditions for parole consideration established by this article apply to such inmates.
Footnote: 12
       In addition to examining pertinent statutory authority regarding this matter, we also observe that the parties have both cited persuasive authority regarding the calculation of presentence credit. For example, the United States District Court for the Southern District of Ohio has recognized the credit for presentence detention has a dual effect. In addition to the earlier expiration of a sentence, the credit for time served also results in an earlier parole eligibility date. White v. Gilligan, 351 F.Supp. 1012 (S.D. Ohio 1972). Otherwise, indigent defendants are confined for longer periods of time before their parole eligibility date than similarly situated inmates who have the resources to post bond and to remain free until after their trials. Id. Additionally, the Supreme Court of Wisconsin requires credit be given both for time served on expiration of sentence and for parole eligibility. See Wilson v. State, 264 N.W.2d 234 (Wis. 1978). If a defendant does not receive credit for time for pre-trial incarceration in determining a parole eligibility date, “a person financially unable to make bail would be required to serve a longer period of incarceration to be eligible for parole than a non-indigent prisoner who is bailed pending conviction.” Id. at 236.

      In addition, the Fourth Circuit in Vickers v. Haynes, 539 F.2d 1005, 1006 (4th Cir. 1976)(per curiam) held that a West Virginia prisoner was entitled to full credit for all time spent in pretrial custody on a nonbailable offense, noting: “Although Vickers was given a life sentence, the jury's recommendation of mercy makes him eligible for parole. Credit for preconviction jail time will advance the date upon which he will first be eligible for parole.” Id.
Footnote: 13
       W. Va. Code §61-3-4 (1997), the fourth degree arson statute, provides that “[a] person imprisoned pursuant to this section is not eligible for parole prior to having served a minimum of one year of his or her sentence.”
Footnote: 14
       As previously stated, pursuant to the express provisions of the December 10, 2008, amended sentencing order, once the defendant completes his penitentiary sentences or is paroled, the defendant shall be remanded into the custody of the West Virginia Regional Jail and Correctional Facility Authority for service of the misdemeanor sentence.