Scott F. Reynolds, Esquire
Wray V. Voegelin, Esquire
Prosecuting Attorney
Cassidy, Myers, Cogan, Voegelin &
Moundsville, West Virginia
Tennant
Attorney for Appellee
Wheeling, West Virginia
Attorney for Appellant
JUSTICE SCOTT delivered the Opinion of the Court.
JUSTICE STARCHER dissents and reserves the right to file a dissenting Opinion.
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.” Syl. Pt. 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.
Scott, Justice:
This case is before the Court upon the appeal of Lorie Ann McGuire from the
August 9, 1999, final order of the Circuit Court of Marshall County, West Virginia, denying
the Appellant's request for credit for time served on home incarceration as a condition of
post-conviction bail. The only issue raised on appeal is whether an offender is entitled, as
a matter of right, to receive credit toward a sentence of imprisonment for the period of time
during which such offender was on home incarceration as a condition of post-conviction bail.
Based upon a review of the record, the parties' briefs and arguments, as well as all other
matters submitted before this Court, we affirm the lower court's decision.
Pursuant to this Court's order, the Marshall County Circuit Court granted the
Appellant pre-trial bail in the amount of $150,000, conditioned on home confinement with
electric monitoring as follows:
[T]o have the electric monitor installed, under the following
terms and conditions:
that she shall pay the hook up fee of $50.00 plus $8.00
per day;
that she shall not leave her home except to attend church
services, medical services at doctors or hospital, for psychiatric
or psychological treatment and to consult with her counsel. . . .
After trial, the Appellant was sentenced to the West Virginia State Penitentiary
for Women for a period of ten years and ordered to “serve a minimum of one-fourth (1/4) of
said sentence prior to her becoming eligible for parole or three (3) years whichever is
greater.” The circuit court then denied the Appellant's motion for post-conviction bond,
pending appeal.
On March 7, 1996, this Court granted the Appellant's summary petition for
post-conviction bond pending appeal, “under the same terms and conditions established for
petitioner's pre-trial bail.” In accordance with this Court's ruling, the lower court once again
issued an order granting the Appellant “post-conviction bond under the same terms and
conditions as before” and set bond in the same amount as before -- $150,000. The
Appellant's home incarceration as a condition of post-conviction bail continued until after
this Court's affirmance of the Appellant's conviction. Upon this Court's decision, the circuit
court ordered that the Appellant be confined at the West Virginia State Penitentiary for
Women as previously ordered with credit for time served in the Northern Regional Jail and
Pruntytown. The circuit court also denied the Appellant's request for credit for time served
on home incarceration as a condition of post-conviction bail, which ruling is the subject of
the present appeal.
We have previously interpreted certain aspects of the Act. For instance, in State v. Long, 192 W.Va. 109, 450 S.E.2d 806 (1994), we noted the penal nature of serving time pursuant to the provisions of the Act, stating:
When the legislature initially adopted the home
confinement statute,See footnote 3
3
it stated that it was ". . . another form of
incarceration . . . ." W.Va.Code, 62-11B-4(a) (1990). The entire
statutory scheme indicates that home confinement is designed to
place substantial restrictions on the offender. A violation of
these restrictions results in the offender being subject to
incarceration under the penalties prescribed for the crime.
W.Va.Code, 62-11B-9(b) (1990). The penal nature of home
detention is recognized under W.Va.Code, 62-11B-9(b), as it
provides credit for time spent in home confinement towards the
imposition of any sentence following a violation of home
confinement.
Id. at 111, 450 S.E.2d at 808 (footnote added and footnotes omitted).
Subsequently, in State v. Hughes, 197 W. Va. 518, 476 S.E.2d 189 (1996), we
addressed the issue of whether a defendant was entitled to receive credit against his sentence
for time served upon home confinement as a condition of bail pending trial. We also
explained the difference between home confinement pursuant to the Act and home
confinement as a condition of pre-trial bail. We noted that in order for a person to be eligible
for credit for time served toward a sentence subsequently imposed, and the person must be
an offender within the meaning of the statute. See footnote 4
4
See 197 W. Va. at 528, 476 S.E.2d at 199.
Further, we inferred that the order allowing for home incarceration must contain the
numerous mandatory restrictive burdens enumerated within the Act so that the intent of the
circuit court in granting home confinement pursuant to the provisions of the Act is clear. Id.
We ultimately held in syllabus points three and four of Hughes that:
Due to the penal nature of the Home Confinement Act,
West Virginia Code §§ 62-11B-1 to -12 (1993), when a circuit
court, in its discretion, orders an offender confined to his home
as a condition of bail, the offender must be an adult convicted of
a crime punishable by imprisonment or detention in a county jail or state penitentiary or a juvenile adjudicated guilty 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.
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.
197 W. Va. at 520-21, 476 S.E.2d at 191-92, Syl. Pts. 3 and 4.
Finally, and of substantial consequence to resolving the instant matter, we revisit our prior decision in McGuire I, wherein we resolved the Appellant's request for credit on her sentence for time she spent on home confinement as a condition of pre-trial bail. Applying the law from the Hughes decision, we rejected the Appellant's assertion that
“because the restrictions placed on her correspond with some of the restrictions under the
Act, her case is distinguishable from Hughes and, therefore, she should be awarded credit.”
McGuire I, 200 W.Va. at 839, 490 S.E.2d at 928 (footnote omitted).
Specifically, in denying the Appellant's request in McGuire I, we stated that
[f]irst, like Hughes, Appellant was not convicted of any
offense when she was placed on home confinement. Thus,
Appellant was not an “offender” under the Act and the Act did
not apply to her. Second, under the facts of this case, we find it
inconsequential that the conditions imposed upon Appellant as
a part of her home confinement coincided with some of the
mandatory requirements as set forth in the Act. A circuit court
is granted wide discretion in formulating bail in order to secure
“'the appearance of a defendant to answer to a specific criminal
charge . . . .'” Id. at 528, 476 S.E.2d at 199 (quoting W.
Va.Code § 62-1C-2 (1992); other citations omitted). Here, the
circuit court's order basically provided that Appellant was to be
electronically monitored, as administered by a probation officer,
and Appellant only could leave her house in order to attend
church; consult with her attorney; or receive medical,
psychiatric, or psychological treatment. Not only does this order
fail to cover all the requirements imposed by the Act, but we
also find the circuit court clearly acted within its discretion by
imposing these basic requirements as part of Appellant's home
confinement in order to secure her presence at trial.
200 W. Va. at 839, 490 S.E.2d at 928 (footnotes omitted).
What is easily discerned from our prior decisions concerning the Act is the fact
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. 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 completely the
mandatory requirements of West Virginia Code § 62-11B-5.See footnote 5
5
Accordingly, it is clear that pursuant to the provisions of the Home
Incarceration Act, West Virginia Code §§ 62-11B-1 to -12, 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 orderSee footnote 6
6
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.
In the instant case, the Appellant correctly points out that she is now an
offender under the provisions of the Act. This requirement of the Act, which the Appellant
was lacking in McGuire I, however, is but one of the numerous requirements which must be
met before the Appellant would be entitled to receive credit on her sentence pursuant to the
Act. See McGuire I, 200 W. Va. at 839, 490 S.E.2d at 928; Syl. Pt. 3, Hughes, 197 W. Va.
at 520, 476 S.E.2d at 191-92. The Appellant also argues that the terms and conditions of her
home incarceration are actually more restrictive than the minimum terms and conditions
provided under the Act, because the order providing for the Appellant's home incarceration
did not contain a provision allowing for her release from home confinement for the purpose
of seeking employment and attending an educational institution. The Appellant's argument,
however, conflicts directly with this Court's decision in McGuire I. It was precisely the
absence of all of the mandated statutory requirements in the pre-trial order providing for
home incarceration which caused this Court to deny her credit for time spent on home
incarceration as a condition of pre-trial bail. The terms and conditions we found deficient
under the Act in McGuire I are the exact same terms and conditions found in the order
imposing home incarceration as a condition of post-conviction bail. Thus, the fact remains
that the order imposing home incarceration as a condition of post-conviction bail “fail[s] to
cover all the requirements imposed by the Act.” Id. Accordingly, the lower court did not
err in refusing, in its discretion, to grant the Appellant credit on her sentence for time spent
on home incarceration as a condition of post-conviction bail.See footnote 7
7
Footnote: 1 1See W. Va. Code § 53-4-1 to -13 (1994) and W. Va. Code § 62-1C-1(c) (1997).
Footnote: 2
2West Virginia Code § 62-11B-5 sets forth the mandatory statutory requirements as
follows:
An order for home incarceration of an offender under
section four [§ 62-11B-4] of this article shall include, but not be
limited to, the following:
(1) A requirement that the offender be confined to the
offender's home at all times except when the offender is:
(A) Working at employment approved by the circuit court
or magistrate, or traveling to or from approved employment;
(B) Unemployed and seeking employment approved for
the offender by the circuit court or magistrate;
(C) Undergoing medical, psychiatric, mental health
treatment, counseling or other treatment programs approved for
the offender by the circuit court or magistrate;
(D) Attending an educational institution or a program
approved for the offender by the circuit court or magistrate;
(E) Attending a regularly scheduled religious service at
a place of worship;
(F) Participating in a community work release or
community service program approved for the offender by the
circuit court, in circuit court cases; or
(G) Engaging in other activities specifically approved for
the offender by the circuit court or magistrate.
(2) Notice to the offender of the penalties which may be
imposed if the circuit court or magistrate subsequently finds the
offender to have violated the terms and conditions in the order
of home incarceration.
(3) A requirement that the offender abide by a schedule,
prepared by the probation officer in circuit court cases, or by the
supervisor or sheriff in magistrate court cases, specifically
setting forth the times when the offender may be absent from the
offender's home and the locations the offender is allowed to be
during the scheduled absences.
(4) A requirement that the offender is not to commit
another crime during the period of home incarceration ordered
by the circuit court or magistrate.
(5) A requirement that the offender obtain approval from
the probation officer or supervisor or sheriff before the offender
changes residence or the schedule described in subdivision (3)
of this section.
(6) A requirement that the offender maintain:
(A) A working telephone in the offender's home;
(B) If ordered by the circuit court or as ordered by the
magistrate, an electronic monitoring device in the offender's
home, or on the offender's person, or both; and
(C) Electric service in the offender's home if use of a
monitoring device is ordered by the circuit court or any time
home incarceration is ordered by the magistrate.
(7) A requirement that the offender pay a home
incarceration fee set by the circuit court or magistrate. If a
magistrate orders home incarceration for an offender, the
magistrate shall follow a fee schedule established by the
supervising circuit judge in setting the home incarceration fee.
(8) A requirement that the offender abide by other
conditions set by the circuit court or by the magistrate.
Id.
Footnote: 3 3The Act was originally referred to as the “Home Confinement Act.” In 1994, the Act was redesignated at the “Home Incarceration Act.” See W. Va. Code § 62-11B-1.
Footnote: 4 4West Virginia Code § 62-11B-3(3) defines the term “offender” 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.” Id.
Footnote: 5 5See supra note 2.
Footnote: 6 6West Virginia Code § 62-11B-5 mandates an order setting forth the statutory requirements for home incarceration.
Footnote: 7 7Given our resolution of this case, we find it unnecessary to address the State's argument that giving the Appellant credit for time spent on home incarceration as a condition of post-conviction bail would thwart the legislative intent of the penalty statute for voluntary manslaughter, which requires a convicted defendant to serve a sentence in the penitentiary before becoming eligible for parole.