Darrell V. McGraw, Jr.
Attorney General Public Defender Corporation
Janet E. James Charleston, West Virginia
Assistant Attorney General Attorney for the Appellant
Charleston, West Virginia
Attorneys for the Appellee
JUSTICE ALBRIGHT delivered the Opinion of the Court.
CHIEF JUSTICE DAVIS and JUSTICE MAYNARD dissent and reserve the right to file
a dissenting opinion.
1. 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. Syl. Pt.
1, in part, State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).
2. 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
consistent therewith. Syl. Pt. 5, State v. Snyder, 64 W.Va. 659,
63 S.E. 385 (1908).
3. Ambiguous penal statutes must be strictly
construed against the State and in favor of the defendant. Syl. Pt.
1, Myers v. Murensky, 162 W.Va. 5, 245 S.E.2d 920 (1978).
4. The legislative intent reflected in the provisions
of West Virginia Code § 62-12-9 (b)(4) (1994) (Repl. Vol. 2000) is
to establish a six-month limit for the period of incarceration which may be
imposed as a condition of probation. When a minimum or indeterminate sentence
is involved, then the maximum term of incarceration as a condition of probation
is one-third of the express minimum or indeterminate sentence or six months,
whichever is less; for all other types of statutory penalties, the maximum term
of incarceration as a condition of probation is six months.
5. The Double Jeopardy and Equal Protection
Clauses of the West Virginia Constitution require that credit for time spent
in jail, either pre-trial or post-trial, shall be credited on an indeterminate
sentence where the underlying offense is bailable. Syl. Pt. 1, Martin
v. Leverette, 161 W.Va. 547, 244 S.E.2d 39 (1978).
6. 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.
Robert McClain (hereinafter Appellant)
appeals the April 13, 2001, order of the Kanawha County Circuit Court denying
his motion, filed pursuant to Rule 35 of the Rules of Criminal Procedure,
to correct the sentence imposed after he pled guilty to the offense of leaving
the scene of an accident which resulted in death. Appellant specifically argues
that the trial court's refusal to grant him credit for the time he served
in jail before he was convicted due to the fact that he could not meet the
bail requirements for pretrial release amounted to violation of the equal
protection and double jeopardy clauses of the West Virginia Constitution.
Based upon the briefs and arguments of the parties and a full review of the
record, we remand this case with direction to amend the sentencing order so
as to provide credit for the time Appellant spent in jail before his conviction.
According to Appellant, although he decided to contact
the authorities when he heard about the discovery of Mr. Parry's body in the
area where he had been driving, the police arrested him before he could do
so. Following his arrest on September 7, 2000, Appellant was charged in magistrate
court with feloniously driving and operating a motor vehicle and leaving the
scene of an accident from which death resulted. During the initial appearance
before the magistrate, Appellant waived a preliminary hearing and thereafter
was committed to the regional jail because he was unable to satisfy the $150,000
bail fixed by the magistrate. Appellant filed a motion for reduction of bail
in the circuit court on September 21, 2000, requesting specifically that bail
be set at not more than $20,000.
The grand jury returned an indictment during the September 2000 term of court, charging Appellant with leaving the scene of an accident resulting in death and operating a motor vehicle while his license was suspended for driving under the influence (hereinafter DUI). Appellant was arraigned on these charges on November 22, 2000, at which time the lower court set the date for trial and continued bail, but at the reduced amount of $75,000. Appellant still could not satisfy the new bail amount established by the circuit court, so he was returned to jail to await trial on January 2, 2001.
On the day of trial and pursuant to the terms of a plea agreement, Appellant tendered to the court a plea of guilty to the charge of leaving the scene of an accident resulting in death. In return for Appellant's guilty plea, the State recommended probation and moved to dismiss the charge of driving on a license suspended for DUI. The lower court accepted Appellant's guilty plea on January 2, 2001, and at that time also set the sentencing hearing for March 30, 2001, and fixed the amount of post-conviction bail at $20,000. Appellant was able to post the requisite bond at this point, and was released from custody after spending 119 days in jail.
As detailed in the March 30, 2001, sentencing order,
the lower court, acting sua sponte, suspended the imposition of sentence and
released Appellant on probation for a period of three years with one of the
conditions of probation being that Appellant spend six months confined in
the regional jail during the probationary period. The sentencing court explained
during the sentencing hearing that Appellant was not given credit for the
119 days he spent in jail awaiting trial because the six-month incarceration
condition was not the sentence, but a part of probation. The sentencing judge
added: If he were sentenced to the penitentiary, he would get credit
for the one hundred and nineteen (119) days he served. As a condition of probation,
he is not getting credit for those days. Appellant challenged the circuit
court's decision not to give him credit for the time he served in jail awaiting
trial by filing a motion on April 9, 2001, to correct the sentence pursuant
to Rule 35(a) of the Rules of Criminal Procedure.
(See footnote 1) Without conducting a hearing,
the lower court denied the motion to correct the sentence by order entered
April 13, 2001. It is from this order that the instant appeal is taken.
The mandatory and discretionary conditions related
to probation are set forth in West Virginia Code § 62-12-9 (2001) (Supp.
footnote 4) One of the allowable discretionary conditions
of probation delineated in this statute is confinement in jail during the
term of probation for a period not to exceed one third of the minimum
sentence established by law or one third of the least possible period of confinement
in an indeterminate sentence, but in no case may the period of confinement
exceed six consecutive months. W.Va. Code § 62- 12-9 (b)(4). We
previously recognized in State v. White, 188 W.Va. 534, 425 S.E.2d
210 (1992), that this statutory provision reflects the Legislature's intent
to restrict the discretion of the trial court with regard to the amount of
time a probationer may be confined to jail as a condition of probation. Id.
at 536, 425 S.E.2d at 212. In White we were faced with a situation
where the relevant penalty statute did not contain a minimum sentence nor
was an indeterminate sentence involved. However, the trial court had imposed
and suspended a twelve-month sentence to a correctional facility before placing
White on probation. We concluded in White that, in order to give effect to West Virginia
Code § 62-12-9 (b) (4), the twelve-month sentence actually imposed by
the court was an acceptable basis on which the statutorily prescribed one-third
calculation could be made. Id. at 536, n. 3, 425 S.E.2d at 212, n.
3. We now have before us a somewhat different situation: like the circumstances
in White, we are dealing with a penalty statute that involves neither
an indeterminate sentence nor a minimum sentence; however, unlike White,
the sentencing judge exercised his option under West Virginia Code §
62-12-3 (1988) (Repl. Vol. 2000),
(See footnote 5) to delay imposing a sentence
when he granted Appellant probation as an alternative punishment. Consequently,
we are faced with the task of resolving the resulting ambiguity by determining
whether the Legislature intended to curtail the lower court's discretion in
imposing jail as a condition of probation in cases where a penalty statute
does not involve a minimum sentence or an indeterminate sentence and no specific
sentence is established by the terms of the sentencing order. We approach
our task of ascertaining legislative intent of these ambiguous statutory provisions guided by the general process and principles of statutory construction
embodied in syllabus point five of State v. Snyder, 64 W.Va. 659, 63
S.E. 385 (1908):
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 consistent therewith.
Id. at 660, 63 S.E.2d at 386.
Turning to the language of West Virginia Code §62-12-9
(b)(4), we initially note that because an indeterminate sentence is not involved
the relevant language to the case before us is a period not to exceed
one third of the minimum sentence established by law . . . but in no case
may the period of confinement exceed six consecutive months. Id.
In the case sub judice, the applicable penalty for an offense under West Virginia Code § 17C- 4-1 is confinement in a correctional facility for not more than three years. Id.
One interpretation of these provisions is that the
minimum sentence in this case can be as little as one day, which would result
in incarceration as a condition of probation not being available when offenses
carrying such penalties are at issue. Such a reading could easily serve to
dissuade circuit judges from considering probation as an alternative sentence and consequently may result in a more restrictive sentence being imposed
which is at odds with another principle of statutory construction summarized
in syllabus point one of Myers v. Murensky, 162 W.Va. 5, 245 S.E.2d
920 (1978). In Myers we held that [a]mbiguous penal statutes
must be strictly construed against the State and in favor of the defendant.
Id. We have repeatedly applied this rule when presented with interpretation
of probation statutes containing ambiguous provisions. See State ex rel.
Simpkins v. Harvey, 172 W.Va. 312, 305 S.E.2d 268 (1983); State v.
Wotring, 167 W.Va. 104, 279 S.E.2d 182 (1981); State ex rel. Hanley
v. Hey, 163 W.Va. 103, 255 S.E.2d 354 (1979).
We find that a more plausible reading of the provisions
in question which applies the rule of strict construction in favor of a criminal
defendant that the Legislature intended under the provisions of West Virginia
Code § 62-12-9 (b)(4) to establish a six- month limit for the period
of incarceration which may be imposed as a condition of probation. When a
minimum or indeterminate sentence is involved, then the maximum term of incarceration
as a condition of probation is one-third of the express minimum or indeterminate
sentence or six months, whichever is less; for all other types of statutory
penalties, the maximum term of incarceration as a condition of probation is
six months. By so holding, we reach a balance between the Legislature's intent
to limit incarceration as a condition of probation and to allow sentencing
courts discretion in fashioning an appropriate sentence in each case, and
we also resolve the statutory ambiguity in favor of the criminal defendant. Applying this holding to the instant case, we find that the period
of incarceration imposed as a condition of probation by the sentencing court
We now turn to the question of whether the sentencing
court was required to credit Appellant with the 119 days he spent in jail
prior to conviction. The statute addressing credit for time served in jail
prior to conviction is West Virginia Code § 61-11-24 (1923) (Repl. Vol.
2000), which 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 [magistrate] having jurisdiction of the offense, such person may, in the discretion of the court or justice [magistrate], be given credit on any sentence imposed by such court or justice [magistrate] for the term of confinement spent in jail awaiting such trial and conviction.
Although West Virginia Code § 61-11-24 states that the grant of credit for time served prior to conviction is within the discretion of the sentencing court, this Court has held that [t]he Double Jeopardy and Equal Protection Clauses of the West Virginia Constitution require that credit for time spent in jail, either pre-trial or post-trial, shall be credited on an indeterminate sentence where the underlying offense is bailable. Syl. Pt. 1, Martin v. Leverette, 161 W.Va. 547, 244 S.E.2d 39 (1978). As Appellant correctly notes, although our holding in Martin only referred to indeterminate sentences, we later explained that the rule announced in Martin applies equally to determinate sentences since the same concerns are raised:
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). The State does not question whether a different rule applies to determinate versus indeterminate sentences, but argues instead that a trial court is not mandated by the constitutional provisions involving the principle of equal protection and the prohibition against double jeopardy to grant credit for time served unless the maximum allowable sentence is imposed. We fail to see how the imposition of this limitation would cure the inherent equal protection and double jeopardy problems which arise when two people receive a sentence for the same term of incarceration but one of those people actually serves a longer period of time in jail simply because he or she is financially unable to post the bail required to secure pretrial release.
We also are not persuaded by the State's argument
that it was appropriate for the sentencing court not to credit Appellant with
the time he served in jail prior to conviction because Appellant was not sentenced
to a period of incarceration but instead was granted probation conditioned
on serving six months in jail. We find it disingenuous to claim that incarceration
in a jail is different when a person is sentenced to jail than when sentencing
is deferred and a person is required to spend a period of time in jail as
a condition of being placed probation. Precisely the same limits are placed on the liberty of
an individual in either instance, requiring that the constitutional principles
apply with equal force to any periods of confinement in correctional facilities.
In order to alleviate the apparent confusion regarding
the circumstances in which a sentencing judge is required to credit a criminal
defendant for the time spent in jail prior to conviction we hold that, in
furtherance of our ruling in Martin v. Leverette, 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 in a correctional facility imposed in a criminal case as a punishment
upon conviction when the underlying offense is bailable. Accordingly, we find
in the case before us that the sentencing judge erred as a matter of law in
not granting Appellant credit for the 119 days he spent in jail before being
convicted and we remand the case for entry of an order providing the same.
(See footnote 6)
We are aware that it can be argued our insistence
to afford constitutional protections to any period of pre-conviction confinement
in a correctional facility will discourage the use of probation as an alternative
sentence. However, we cannot ignore or minimize the protections furnished
by our constitution based on such speculation. We choose instead to trust that circuit court judges will continue to wisely
employ their discretion in determining the most appropriate punishment in
each criminal case with due consideration to the array of alternative sentencing
options available to them. Certainly, if credit given for time served nullifies
the option of confinement in a correctional facility as a condition of probation,
a sentencing judge could still examine the propriety of using home confinement,
with or without electronic monitoring, or any other sentencing alternative
appropriate to the circumstances of the case before the court.