| James William Gordon|
Mount Olive Correctional Complex
Mount Olive, West Virginia
| Darrell V. McGraw, Jr., Esq.,
Dawn E. Warfield, Esq.,
Deputy Attorney General
Charleston, West Virginia
Attorneys for the Appellee
regard to the specific parole eligibility date, W.Va. Code, 62-12-13a
(1955), provides that, when the prisoner has received an indeterminate sentence, the
minimum sentence shall be considered as an eligibility date for parole consideration
[.] If the prisoner is serving consecutive sentences, then, under the West
Virginia Parole Board's administrative rules, the time of parole eligibility
shall be computed by adding together the minimum terms of the sentences. W.Va.
C.S.R. § 92-1-4. In the case of Gordon, serving an effective sentence
of 30 to 50 years, his parole eligibility date is scheduled to occur in 2028,
thirty years from his sentencing in 1998. (See
Gordon acknowledges, as W.Va. Code, 62-12-13a (1955), further provides, that a parole eligibility date does not confer in the prisoner the right to be released as of that date. In earlier cases, this Court confirmed that the granting of parole is discretionary, syl. pt. 1, State ex rel. Patton v. Rubenstein, 213 W.Va. 296, 582 S.E.2d 743 (2003), and that there is no automatic right to parole once the prisoner crosses the threshold of eligibility. State v. Scott, 214 W.Va. 1, 7, 585 S.E.2d 1, 7 (2003); Wanstreet v. Bordenkircher, 166 W.Va. 523, 536, 276 S.E.2d 205, 213 (1981). Gordon contends, however, that an earlier release upon good time, denies his right to appear before the Parole Board to demonstrate his compliance with the purposes of the parole system, i.e., that he has reformed and will be a law abiding member of society. See, State ex rel. Carper v. West Virginia Parole Board, 203 W.Va. 583, 586, 509 S.E.2d 864, 867 (1998) (stating that parole hearings constitute a substantial interest subject to legal protection), and Nibert v. Carroll Trucking Company, 139 W.Va. 583, 588, 82 S.E.2d 445, 449 (1954) (indicating that the purpose of this State's parole system is to afford the prisoner an opportunity to show that he or she has reformed and will be a law abiding member of the community). According to Gordon, the denial of that right renders his sentence under W.Va. Code, 61-8B-3 (1984), unconstitutional and requires that his sentence be modified or set aside.
Gordon's entitlement to show that he has reformed and will be a law abiding member of the community, while accurately stated, must also be seen, however, in conjunction with his obligation to comply with the provisions of the West Virginia Sex Offender Registration Act, W.Va. Code, 15-12-1 (1999), et seq., imposed as a result of his two convictions of sexual assault in the first degree. See, n. 5, supra. Although the Registration Act is not intended as an additional punishment, its foundation is based upon the Legislative declaration that there is a compelling and necessary public interest that the public have information concerning persons convicted of sexual offenses in order to allow members of the public to adequately protect themselves and their children from these persons. W.Va. Code, 15-12-1a (2000). Whether he is released upon good time or parole, Gordon must comply with the Act as directed by the Circuit Court at the time of his sentencing.
Moreover, Gordon's comparison of his scheduled release in 2023 upon good time to his scheduled parole consideration in 2028 does not account for an additional provision found in the parole statute, W.Va. Code, 62-12-13 (1999), which could theoretically affect either of those release dates. As W.Va. Code, 62-12-13(g) (1999), provides: No provision of this article and none of the rules adopted hereunder are intended or may be construed to contravene, limit or otherwise interfere with or affect the authority of the Governor to grant pardons and reprieves, commute sentences, remit fines or otherwise exercise his or her constitutional powers of executive clemency. See, State ex rel. Forbes v. Caperton, 198 W.Va. 474, 481 S.E.2d 780 (1996) (discussing the empowerment of the Governor with that authority under W.Va. Const. art. VII , § 11). (See footnote 9) Action by the Governor in that regard would directly impact the status of a prisoner in terms of the requirements for parole eligibility set forth in W.Va. Code, 62-12-13 (1999).
lacking in certainty is Gordon's assumption that he will be released upon good
time prior to his parole eligibility date. (See
footnote 10) Pursuant to W.Va. Code, 28-5-27 (1984), the accumulation
of good time is dependent upon the prisoner's behavior or good conduct while
incarcerated. State ex rel. Valentine v. Watkins, 208 W.Va. 26, 32, 537
S.E.2d 647, 653 (2000). In addition to encouraging rehabilitation, it rewards
the obedient. Id; Woodring v. Whyte, 161 W.Va. 262, 275, 242 S.E.2d
238, 246 (1978). Thus, while Gordon may assert that he is likely to continue
to accumulate good time, he cannot say, at this point, that he will be released
upon good time as a matter of law in 2023. In addition, accumulated good time
is subject to forfeiture and revocation. As stated in W.Va. Code, 28-5-27(f)
(1984), for a violation of disciplinary rules, 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. Accordingly, it is not necessarily true that Gordon will be released
upon good time prior to his appearance before the Parole Board.
Finally, assuming that Gordon will receive the full amount of good time and be released in 2023, his constitutional challenge is deprived of significance by the fact that such a release is well before the vesting of his eligibility under W.Va. Code, 62-12-13 (1999), to appear before the Parole Board and be considered for parole. Therefore, by being released upon good time in 2023, Gordon will not be denied a right that, at that time, he was eligible to receive. Syllabus point 2 of Lindsey, quoted above, states that a person convicted of a crime shall be considered for parole only after he becomes eligible therefore under the appropriate statute. Pursuant to W.Va. Code, 62-12-13(b) (1999), to be eligible for parole, the prisoner must, inter alia, have served the minimum term of his or her indeterminate sentence. See, n. 7, supra. And, as stated in W.Va. Code, 62-12-13a (1955), the minimum sentence of an indeterminate term shall be considered as an eligibility date for parole consideration [.] In 2023, Gordon will not be eligible for parole consideration, and a release then upon good time constitutes neither an additional punishment nor an extension of the requirements for parole eligibility. See, Adkins v. Bordenkircher, 164 W.Va. 292, 296- 97, 262 S.E.2d 885, 887 (1980) (indicating that parole eligibility conditions cannot be retroactively altered to the detriment of the prisoner).
Gordon's contention that his release upon good time unconstitutionally deprives him of his right to appear before the Parole Board, therefore, amounts to speculation upon a contingency, namely, an assumption that he will continue to accumulate good time for release in 2023 at which time his right to appear before the Parole Board, based upon completion of the eligibility requirements set forth in W.Va. Code, 62-12-13 (1999), will not have fully accrued.