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SER Forbes v. Caperton

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 1996 Term
No. 23575
STATE OF WEST VIRGINIA EX REL. WILLIAM C. FORBES, Petitioner Below, Appellee
v.
HONORABLE GASTON CAPERTON, GOVERNOR,
STATE OF WEST VIRGINIA, AND
WEST VIRGINIA BOARD OF PAROLE,
Respondents Below, Appellants

AND

JOHN WAYNE FORD,
Appellant

No. 23577
STATE OF WEST VIRGINIA EX REL. WILLIAM C. FORBES, PROSECUTING ATTORNEY IN AND FOR KANAWHA COUNTY, Petitioner Below, Appellee
v.
HONORABLE GASTON CAPERTON, GOVERNOR, STATE OF WEST VIRGINIA, AND WEST VIRGINIA BOARD OF PAROLE Respondents Below, Appellants
AND
No. 23576
STATE OF WEST VIRGINIA EX REL. WILLIAM D. MOOMAU,
HARDY COUNTY PROSECUTING ATTORNEY,
Petitioner Below, Appellee

v.
GASTON CAPERTON, GOVERNOR, STATE OF WEST VIRGINIA, AND WEST VIRGINIA PAROLE BOARD, Respondents Below, Appellants
AND
ROBERT MEADE LEACH, Appellant
No. 23578
STATE OF WEST VIRGINIA EX REL. WILLIAM D. MOOMAU,
HARDY COUNTY PROSECUTING ATTORNEY,
Petitioner Below, Appellee

v.
GASTON CAPERTON, GOVERNOR, STATE OF WEST VIRGINIA, AND WEST VIRGINIA PAROLE BOARD, Respondents Below, Appellants
Appeal from the Circuit Court of Kanawha County Honorable Lyne Ranson, Circuit Judge Civil Action No.'s 95-MISC-958 and 95-MISC-956, respectfully
REVERSED
Submitted: October 29, 1996 Filed: December 19, 1996
Mary Beth Kershner Assistant Prosecuting Attorney Charleston, West Virginia Attorney for the William C. Forbes
Donald L. Darling Senior Deputy Attorney General Chad Cardinal Assistant Attorney General Charleston, West Virginia Attorneys for the Honorable Gaston Caperton, Governor, and West Virginia Parole Board
George Castelle Chief Public Defender Charleston, West Virginia Lonnie C. Simmons DiTrapano & Jackson Charleston, West Virginia Attorneys for John Wayne Ford
William D. Moomau Hardy County Prosecuting Attorney Moorefield, West Virginia Pro Se David Schles Stowers & Associates Charleston, West Virginia Attorney for the Robert Meade Leach
JUSTICE WORKMAN delivered the Opinion of the Court JUDGE RECHT sitting by temporary assignment.
SYLLABUS BY THE COURT
    Under the general pardoning power granted in Article VII, Section 11 of the West Virginia Constitution, the Governor of this State has the constitutional authority to grant commutations in non-capital cases. Workman, Justice:
    We consolidated these four appealsSee footnote 1 because they arise from two cases involving similar factual and legal issues that were decided by the Circuit Court of Kanawha County. In the proceedings before the circuit court, William C. Forbes, Prosecuting Attorney of Kanawha County, and William D. Moomau, Prosecuting Attorney of Hardy County, Appellees herein and petitioners below (hereinafter Prosecutor Forbes, Prosecutor Moomau, or Appellees), challenged the authority of the Honorable Gaston Caperton, Governor of the State of West Virginia, Appellant herein and respondent below (hereinafter Governor),See footnote 2 to commute the sentences of John Wayne Ford and Robert Meade Leach, also Appellants herein (hereinafter Appellant Ford and Appellant Leach). In each case, the circuit court granted a writ of mandamus in favor of the respective prosecutor, and declared the Governor's commutation order void, ab initio, and mandated it be withdrawn. On appeal, Appellants generally claim the circuit court erred by ruling: (1) the Governor has no power to commute a sentence other than one for capital punishment; (2) mandamus is an appropriate remedy; and (3) Appellants Ford and Leach could not intervene in the underlying actions.See footnote 3 Upon review, we reverse the final orders of the circuit court.
I.
FACTUAL AND PROCEDURAL HISTORY

    In 1968, Appellant Ford was convicted by jury of first degree murder and received a sentence of life imprisonment without mercy.See footnote 4 In 1979, Appellant Leach committed a double murder and grand larceny. Similar to Appellant Ford, Appellant Leach was convicted by jury of first degree murder and received a sentence of life imprisonment without mercy for one of the slayings. Thereafter, Appellant Leach plead guilty to the second murder and to grand larceny and received a sentence of life imprisonment with mercy and a sentence of not less than one nor more than ten years for grand larceny. All three of Appellant Leach's sentences were ordered to run consecutively. Finding circumstances that he believed warranted changes in Appellant Ford's and Appellant Leach's sentences, the Governor, by orders dated December 8, 1995, commuted the life imprisonment without mercy sentences to life imprisonment with mercy and ordered Appellant Leach's sentences to run concurrently, making both Appellants Ford and Leach immediately eligible for parole.
    After learning of the Governor's decision, Prosecutors Forbes and Moomau filed separate petitions for writs of mandamus in the Circuit Court of Kanawha County on December 27, 1995. The circuit court scheduled a consolidated hearing on the petitions for 9:30 a.m. on December 29, 1995. The rationale for holding the hearing so quickly apparently was to entertain arguments before Appellants Ford and Leach were provided parole hearings. The Governor and the West Virginia Parole Board were served notice of the hearing;See footnote 5 however, Appellants Ford and Leach were not named as parties or served notice.
    Several people appeared at the hearing including: Prosecutor Moomau; Mary Beth Kershner and John Blevins, Assistant Prosecuting Attorneys for Kanawha County; Dana F. Eddy, General Counsel to the Governor; Donald L. Darling, Senior Deputy Attorney General; and Chad M. Cardinal, Assistant Attorney General. Also in attendance was George Castelle, Kanawha County Chief Public Defender, who currently serves as counsel for Appellant Ford. Mr. Castelle made no comments on the record at the hearing and, in fact, is not mentioned in the transcript of the proceeding as making an appearance. On appeal, Mr. Castelle states that at the time of the hearing he had no relationship with Appellant Ford, had not communicated with Appellant Ford, and had no authority to intervene on Appellant Ford's behalf.
    The arguments at the hearing primarily centered upon the Governor's authority to commute sentences.See footnote 6 Near the conclusion of the hearing, Mr. Darling mentioned he was given very short notice to prepare for arguments on this matter--especially considering the constitutional implications. The circuit court inquired whether additional time was needed, but Mr. Darling responded no and said he considered the cases ripe for decision. After considering the arguments of the parties, the circuit court judge announced from the bench that she found the Governor did not have the power to commute the sentences and, by doing so, the Governor abused or exceeded his authority.See footnote 7 Consequently, the circuit court awarded the writs of mandamus. Subsequently, on January 4, 1996, Appellant Ford, pro se, wrote a letter to the circuit court stating he wished to appeal the decision and requested he be appointed counsel.See footnote 8
    On January 30, 1996, the circuit court entered a written order of its decision to grant the writ of mandamus requested by Prosecutor Forbes. A similar order was entered on February 21, 1996, with respect to the writ of mandamus awarded in favor of Prosecutor Moomau.See footnote 9 On February 13, 1996, the circuit court entered a memorandum order elucidating its January 30, 1996, order.
    This memorandum order also contained a ruling that Appellant Ford did not have standing to appeal the circuit court's decision because he was not a party to the action and he did "not suffer[] an invasion of a legally protected interest and any loss he may have suffered would merely be conjectural or hypothetical." The court determined Appellant "Ford had only a unilateral hope of being paroled[, and] [a] mere hope would not be strong enough to result in an actual injury." Moreover, with respect to Appellant Ford's "letter" requesting appointed counsel, the circuit court refused to treat it as a habeas corpus petition, finding Appellant Ford was no stranger to the proper way one is filed.See footnote 10 Therefore, the circuit court denied Appellant Ford's request to appeal and to receive appointed counsel.
    After being denied appointed counsel, Appellant Ford's current counsel, Mr. Castelle and Lonnie C. Simmons, agreed to represent him on a pro bono basis. On February 23, 1996, Appellant Ford's counsel filed an application to intervene and a motion to alter or amend the orders of January 30, 1996, and February 13, 1996. This request was denied by order dated March 12, 1996.See footnote 11
    Like Appellant Ford, Appellant Leach obtained counsel and, on April 5, 1996, filed an application to intervene and a "motion for relief from judgment and to vacate judgment and [a] motion to set aside, alter or amend judgment." By letter dated April 19, 1996, the circuit court stated it was denying these requests for the same reasons set forth in its order dated March 12, 1996. An order to this effect was entered on May 15, 1996. The following appeals were then filed in this Court by Appellant Ford, Appellant Leach, and the Governor, together with the West Virginia Parole Board. The issue before this Court is purely a question of law involving constitutional construction, therefore, our review is de novo and plenary. State ex rel. Cooper v. Caperton, 196 W. Va. 208, 213-14, 470 S.E.2d 162, 167-68 (1996).
II.
DISCUSSION
A.


Definitions
    Before we can have any intelligent discussion with respect to these cases, it is essential that we first set forth the common definitions of the words commute and pardon. Given its ordinary meaning in criminal law, the term "commute" (or commutation) indicates "the change of a punishment to one which is less severe . . . ." Black's Law Dictionary 280 (6th ed. 1990). On the other hand, the term "pardon" means "[a]n executive action that mitigates or sets aside punishment for a crime. An act of grace from governing power which mitigates the punishment the law demands for the offense and restores the rights and privileges forfeited on account of the offense." Id. at 1113 (citation omitted).See footnote 12 A pardon can come in many forms. For instance, an "absolute pardon" frees a criminal without restrictions, while a "conditional pardon," as is evident by its name, frees a criminal upon conditions. The conditions may require the performance or non-performance of a specific act which is essential to the pardon's validity. Id.See footnote 13
    Although a commutation is not synonymous with a pardon, it is well established throughout the United States today that the power to pardon generally encompasses the lesser power to commute. As stated in 59 Am.Jur.2d Pardon and Parole

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