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State v. Jedediah C.

Supreme Court of West Virginia

March 14, 2018

STATE OF WEST VIRGINIA, Plaintiff Below, Respondent
v.
JEDEDIAH C., Defendant Below, Petitioner

          Submitted: February 6, 2018

         Appeal from the Circuit Court of Jackson County The Honorable Thomas C. Evans, III, Judge Criminal Action No. 15-F-46.

          Kevin B. Postalwait, Esq. Public Defender Corporation Ripley, West Virginia Counsel for the Petitioner

          Patrick Morrisey, Esq. Attorney General Benjamin F. Yancey, III, Esq. Assistant Attorney General Charleston, West Virginia Counsel for the Respondent

         SYLLABUS

         1. "'The Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands.' Syl. Pt. 1, in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997)." Syllabus Point 1, State v. James, 227 W.Va. 407, 710 S.E.2d 98 (2011).

         2. "When a person who has been arrested, but not yet convicted of a crime, is admitted to pre-trial bail with the condition that he be restricted to home confinement pursuant to West Virginia Code § 62-1C-2(c) (1992), the home confinement restriction is not considered the same as actual confinement in a jail, nor is it considered the same as home confinement under the Home Confinement Act, West Virginia Code §§ 62-11B-1 to -12 (1993). Therefore, the time spent in home confinement when it is a condition of bail under West Virginia Code § 62-1C-2(c) does not count as credit toward a sentence subsequently imposed." Syllabus Point 4, State v. Hughes, 197 W.Va. 518, 476 S.E.2d 189 (1996).

         3. "Pursuant to the provisions of the Home Incarceration Act, West Virginia Code §§ 62-11B-1 to -12 (1997 & Supp. 1999), when an offender is placed on home incarceration as a condition of post-conviction bail, if the terms and conditions imposed upon the offender are set forth fully in the home incarceration order and encompass, at a minimum, the mandatory, statutory requirements enunciated in West Virginia Code § 62- 11B-5, then the offender is entitled to receive credit toward any sentence imposed for time spent on home incarceration, whether or not the offender violates the terms and conditions of home incarceration and whether or not the order specifically references the Home Incarceration Act." Syllabus Point 3, State v. McGuire, 207 W.Va. 459, 533 S.E.2d 685 (2000).

         4. "'Sentences imposed by the trial court, if within statutory limits and if not based on some [im]permissible factor, are not subject to appellate review.' Syllabus point 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982)." Syllabus Point 2, State v. Booth, 224 W.Va. 307, 685 S.E.2d 701 (2009).

          OPINION

          WALKER, Justice:

         Petitioner Jedediah C.[1] sexually molested two minor children-including his son-and attempted to molest a third minor child. He pleaded guilty to sexual abuse by a parent, incest, and attempt to commit a felony. The Circuit Court of Jackson County imposed an effective sentence of sixteen to thirty-eight years and denied Petitioner's request for credit for time served on home incarceration as a condition of pretrial bail. Petitioner contends that he should have received credit for time served on home incarceration and that his sentence was constitutionally disproportionate. We disagree and affirm the circuit court's sentencing order.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Between July 2013 and December 2014, Petitioner sexually molested his son and one of his son's friends and attempted to molest another of his son's friends. All three children were minors. Petitioner was indicted on five counts of first-degree sexual assault, five counts of incest, twelve counts of first-degree sexual abuse, fifteen counts of sexual abuse by a parent, and two counts of sexual abuse by a custodian. Following Petitioner's pretrial hearing, he was placed on home incarceration as a condition of pretrial bail, subject to various conditions set forth in the Home Incarceration Program Participation Agreement (home incarceration agreement). Petitioner spent 281 days on home incarceration.

         Although Petitioner was facing a thirty-nine-count indictment, the State had concerns about presenting the victims' testimonies at trial due to their emotional difficulties and the nature of the allegations. Thus, Petitioner and the State entered into a plea agreement on April 22, 2016, and a plea hearing was held on that date. Petitioner agreed to plead guilty-pursuant to Kennedy v. Frazier[2]-to one count of sexual abuse by a parent, one count of incest, and one count of attempt to commit a felony, a lesser-included offense of first-degree sexual abuse. The other thirty-six counts were dismissed. Petitioner filed a motion requesting that his bond and home confinement be continued until his sentencing date. The circuit court denied Petitioner's motion, rescinding Petitioner's bond and remanding him to jail pending sentencing.

         Petitioner subsequently was sentenced to an indeterminate term of not less than ten nor more than twenty years with a fine of $5, 000 for the crime of sexual abuse by a parent, not less than five nor more than fifteen years and a fine of $5, 000 for the crime of incest, and not less than one nor more than three years and a fine of $300 for the crime of attempt to commit a felony. The sentences were ordered to run consecutively. The circuit court denied Petitioner credit for any time served on home incarceration as a condition of pretrial bail on the basis that Petitioner benefited from his plea bargain with the State. Petitioner now appeals the sentencing order entered on October 13, 2016.

         II. STANDARD OF REVIEW

         With respect to the standard of review of sentencing orders, this Court has held that "'[t]he Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands.' Syl. Pt. 1, in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997)."[3]

         III. ANALYSIS

         We first address Petitioner's assertion that the circuit court erred in denying him credit for time served on home incarceration as a condition of pretrial bail. Petitioner argues that the terms of his home incarceration, although a condition of pretrial bail, were identical to the terms imposed in post-conviction home incarcerations which are enumerated in West Virginia Code § 62-11B-5 (2014).[4]

         In State v. Hughes[5], this Court explained the distinction between post-conviction home confinement pursuant to the Home Confinement Act (the Act)[6] and home confinement as a condition of pretrial bail. We found that the Act applies only to post-conviction situations and is penal in nature.[7] We held the Act only applies to "offenders, " which are defined in the Act as "any adult convicted of a crime punishable by imprisonment or detention in a county jail or state penitentiary; or a juvenile convicted of a delinquent act that would be a crime punishable by imprisonment or incarceration in the state penitentiary or county jail, if committed by an adult."[8] We further concluded that the penal intent of the Act is reflected by the substantial restrictions enumerated in West Virginia Code § 62-11B-5 that are placed on the offender.[9] We observed that an order for home confinement must contain the mandatory, restrictive burdens set forth in West Virginia Code § 62-11B-5 so that the intent of the court in granting home confinement under the Act is clear.[10]

         In Hughes, this Court distinguished home confinement imposed post-conviction from when it is imposed as a condition of pretrial bail. We specifically noted that "the purpose of pre-trial bail is not to punish, but rather it acts as 'security for the appearance of a defendant to answer to a specific criminal charge before any court or magistrate at a specific time or at any time to which the case may be continued.'"[11] Thus, we held that home confinement as a condition of pretrial bail is not the equivalent of incarceration:

When a person who has been arrested, but not yet convicted of a crime, is admitted to pre-trial bail with the condition that he be restricted to home confinement pursuant to West Virginia Code § 62-1C-2(c) (1992), the home confinement restriction is not considered the same as actual confinement in a jail, nor is it considered the same as home confinement under the Home Confinement Act, West Virginia Code §§ 62-11B-1 to -12 (1993). Therefore, the time spent in home confinement when it is a condition of bail under West Virginia Code § 62-1C-2(c) does not count as credit toward a sentence subsequently imposed. [12]

         We observed that "the numerous mandatory restrictions that must be imposed upon an individual granted home confinement under [West Virginia Code § 62-11B-5 of] the Act due its penal nature" are absent from the statutory scheme regarding bail. Therefore, we concluded that "[t]he absence of substantial restrictions indicates that bail, even with a home confinement restriction, is not the equivalent of incarceration."[13]

         Four years later, this Court addressed the issue of whether an offender placed on home incarceration as a condition of post-conviction bail is entitled to receive credit for time spent on home incarceration.[14] In State v. McGuire, we held:

[p]ursuant to the provisions of the Home Incarceration Act, West Virginia Code §§ 62-11B-1 to -12 (1997 & Supp. 1999), when an offender is placed on home incarceration as a condition of post-conviction bail, if the terms and conditions imposed upon the offender are set forth fully in the home incarceration order and encompass, at a minimum, the mandatory, statutory requirements enunciated in West Virginia Code § 62-11B-5, then the offender is entitled to receive credit toward any sentence imposed for time spent on home incarceration, whether or not the offender violates the terms and conditions of home incarceration and whether or not the order specifically references the Home Incarceration Act.[15]

         In so finding, we specifically observed that certain essential criteria must be established before a determination can be made that home incarceration was imposed by a circuit court under the provisions of the Act.[16] We stated:

First, it must be found that the individual upon whom home incarceration was imposed was an offender as that term is defined by the Act. See W.Va. Code § 62-11B-3(3); see also Hughes, 197 W.Va. at 520, 476 S.E.2d at 191-92. Additionally, when an order imposes home incarceration pursuant to the Act, the order must set forth fully and ...

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