Preview:

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2010 Term

No. 35140

FILED
November 23,
2010
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA


STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
v.

DAVID HAROLD EILOLA, Defendant Below, Appellant ______________________________________________________ Appeal from the Circuit Court of Kanawha County
Honorable Herman G. Canady, Judge
Criminal Action No. 06-F-240


REVERSED AND REMANDED _____________________________________________________ Submitted: March 10, 2010 Filed: November 23, 2010
Edward L. Bullman, Esq. Bullman and Bullman Charleston, West Virginia Attorney for Appellant Darrell McGraw, Esq. Attorney General Dawn E. Warfield, Esq. Deputy Attorney General Charleston, West Virginia Attorneys for Appellee

JUSTICE BENJAMIN delivered the Opinion of the Court.


JUSTICE MCHUGH concurs and reserves the right to file a concurring opinion.
CHIEF JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion.


SYLLABUS BY THE COURT


1.

"[S]entences imposed by the trial court, if within statutory limits and

if not based on some unpermissible factor, are not subject to appellate review." Syllabus Point 4, State v. Goodnight, 169 W. Va. 366, 287 S.E.2d 504 (1982).

2.

"The Supreme Court of Appeals reviews sentencing orders, including

orders of restitution made in connection with a defendant's sentencing, under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands." Syllabus Point 1, State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997).

3.

"In reviewing the findings of fact and conclusions of law of a circuit court

concerning an order on a motion made under Rule 35 of the West Virginia Rules of Criminal Procedure, we apply a three-pronged standard of review. 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." Syllabus Point 1, State v. Head, 198 W. Va. 298, 480 S.E.2d 507 (1996).

4.

"The Double Jeopardy and Equal Protection Clauses of the West

Virginia Constitution require that time spent in jail before conviction shall be credited

i

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." Syllabus Point 6, State v. McClain, 211 W. Va. 61, 561 S.E.2d 783 (2002).

5.

"Where a criminal defendant has been placed on probation after

successfully completing a program of rehabilitation at a young adult offender center under the Youthful Offenders Act, W. Va. Code, 25-4-1 to -12, and such probation is subsequently revoked, pursuant to W. Va. Code, 25-4-6 [2001] the circuit court's sentencing order must credit the defendant with time spent in incarceration in such a manner that the defendant's date of eligibility for parole is the same as if the defendant had not been committed to a young adult offender center and subsequently placed on probation." Syllabus Point 6, State v. Scott, 214 W. Va. 1, 585 S.E.2d 1 (2003).

6.

"Consistent with our decision in Echard v. Holland, 177 W. Va. 138,

351 S.E.2d 51 (1986), when a trial court awards credit for presentence incarceration to a defendant receiving consecutive sentences, the period of presentence incarceration must be credited against the aggregated maximum term of the consecutive sentences. To the extent that language in the decision of State v. Scott, 214 W. Va. 1, 585 S.E.2d 1 (2003) suggests a different allocation of presentence credit to consecutive sentences, it is disapproved." Syllabus Point 6, State v. Middleton, 220 W. Va. 89, 640 S.E.2d 152 (2006).

ii

7.

For purposes of calculating a defendant's parole eligibility date, credit

for time served by the defendant prior to being sentenced should be applied to the aggregated minimum term of all the consecutive sentences combined. To the extent that language in State v. Middleton, 220 W. Va. 89, 640 S.E.2d 152 (2006), mandates that the period of time served during presentence incarceration be credited only against the aggregated maximum term of the consecutive sentences, it is hereby overruled.

iii

BENJAMIN, Justice:

The instant action is before this Court upon the appeal of David Harold Eilola from a December 10, 2008, amended order of the Circuit Court of Kanawha County, which re-sentenced Appellant for purposes of appeal following his convictions for Attempted Murder in the First Degree, Malicious Assault, Arson in the Fourth Degree, Violation of a Domestic Violence Protective Order, and Domestic Battery. This Court granted Appellant's Petition for Appeal only as to Appellant's third assignment of error, regarding the proper application of credit for time served by Appellant prior to sentencing. Appellant contends that this Court's holding in State v. Middleton, 220 W. Va. 89, 640 S.E.2d 152 (2006), regarding credit for time served, should be reconsidered and reversed in part on equal protection grounds. The State agrees that the opinion should be reconsidered, for reasons discussed more fully herein. This Court has before it the petition for appeal, all matters of
record and the briefs and argument of counsel. For the reasons expressed below, the rulings of the Circuit Court of Kanawha County are reversed and remanded with directions.

I.
FACTUAL AND PROCEDURAL HISTORY
On March 29, 2006, the Appellant was taken into custody. Being unable to post the "cash only" bond of $50,000, he has remained in custody since that time. On April

1


26, 2007, the Appellant was convicted of Attempted Murder in the First Degree, Malicious Assault, Arson in the Fourth Degree, Violation of a Domestic Violence Protective Order, and Domestic Battery. Subsequently, by order entered August 8, 2007, the circuit court imposed consecutive sentences of three to fifteen years for Attempted First Degree Murder; two to ten years for Malicious Assault; two years for Fourth Degree Arson; twelve months for Violation of a Domestic Violence Protective Order; and twelve months for Domestic Battery.1 Because the Appellant had been incarcerated while awaiting trial, conviction and sentencing, the circuit court ordered that 495 days of credit for time served be applied to his sentence of three to fifteen years for Attempted First Degree Murder. On August 16, 2007, the circuit court prepared a certified penitentiary commitment order, setting the Appellant's effective sentencing date as March 29, 2006, to reflect the 495 days of credit for time served.

On August 21, 2007, the State filed a motion to correct the penitentiary commitment, stating: The commitment is incorrect because the commitment attributes the defendant's credit for time served against the initial (parole eligibility) portion of the sentence in a manner inconsistent with the decisions of the West Virginia Supreme Court of Appeals in State v. Middleton, 220 W. Va. 89 (2006). Syllabus Point #6 of the Middleton case states,

Pursuant to the express provisions of the December 10, 2008, amended sentencing order, once the defendant completes his penitentiary sentences or is paroled, the defendant shall be remanded into the custody of the West Virginia Regional Jail and Correctional Facility Authority for service of the misdemeanor sentence.

1

2


"Consistent with our decision in Echard v. Holland, 177 W. Va. 138, 351 S.E.2d 51 (1986), when a trial court awards credit for presentence incarceration to a defendant receiving consecutive sentences, the period of presentence incarceration must be credited against the aggregated maximum term of the consecutive sentences. To the extent that language in the decision of State v. Scott, 214 W. Va. 1, 585 S.E.2d 1 (2003), suggests a different allocation of presentence credit to consecutive sentences, it is disapproved." Thus, the law requires that credit for time served in a consecutive sentence be credited against the aggregated maximum of the defendant's sentence. Simply, the 495 days credit for time served is reduced from the "back" end of the sentence, not the front. The West Virginia rule is consistent with the rule in Alaska, Colorado, Florida, Hawaii, Idaho, Illinois, Indiana, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New Hampshire, New Mexico, Oregon, North Carolina, North Dakota, Vermont, and Wisconsin. See, Middleton, supra, for list. The parole eligibility of the defendant is calculated from the commitment and the effective sentence date. The commitment prepared by the Clerk is inconsistent with the controlling decisional law of this State. WHEREFORE, the State of West Virginia asks that this Court void the prior commitment and require the issuance of a new commitment consistent with the controlling law of this State.

On November 21, 2007, the circuit court granted the State's motion directing that "the commitment shall be amended to reflect that the effective sentencing date and the actual sentencing date shall be the 6th day of August, 2007", and that "the defendant's credit for time served calculated at four hundred ninety-five (495) days shall be deducted from the maximum aggregated sentence by the Commissioner of Corrections[.]" Pursuant to this

3


order, an Amended Commitment was certified to the Commissioner of Corrections on December 20, 2007, reflecting an effective sentence date of August 6, 2007.

On March 13, 2008, Appellant was re-sentenced for purposes of appeal. He was re-sentenced again on October 15, 2008, and again by amended order entered December 10, 2008, in order to perfect the instant appeal, which reflects the circuit court's previous rulings regarding the effective sentence date and deduction of Appellant's credit for time served from the maximum aggregated sentence. It is from these sentencing orders that Appellant now appeals.

II.
STANDARD OF REVIEW
The sole assignment of error to be considered by this Court is whether refusing to give the Appellant credit for time served prior to conviction in calculating his parole eligibility date violates the constitutional guarantees of equal protection under the law. Generally, "[s]entences imposed by the trial court, if within statutory limits and if not based on some unpermissible factor, are not subject to appellate review." Syl. Pt. 4, State v. Goodnight, 169 W. Va. 366, 287 S.E.2d 504 (1982). However, where it is alleged that the circuit court has failed to impose a sentence consistent with the law, appellate review is warranted. "The Supreme Court of Appeals reviews sentencing orders, including orders of

4


restitution made in connection with a defendant's sentencing, under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands." Syl. Pt. 1, State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997). We held more specifically in
Syllabus point 1 of State v. Head, 198 W. Va. 298, 480 S.E.2d 507 (1996), that: In reviewing the findings of fact and conclusions of law of a circuit court concerning an order on a motion made under Rule 35 of the West Virginia Rules of Criminal Procedure, we apply a three-pronged standard of review. 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.

With these principles in mind, we now turn to the issue before this Court.

III.
DISCUSSION
Herein, the Appellant contends, and the State agrees, that a portion of this Court's prior ruling in State v. Middleton should be reconsidered because it results in loss of credit on a sentence for periods of incarceration based solely upon one's economic status or lack of resources.2 Appellant presents the following example to demonstrate how this Court's prior holding in State v. Middleton is problematic: Two identical twins, separated at birth, are raised in similar environments. Both have the same or similar educational, vocational,
This Court acknowledges the candor and professionalism of the Attorney General's office in briefing this matter, as the State had the difficult task of advancing a position contrary to that argued below in an attempt to correct the obvious errors involved in the sentencing of the Appellant.
2

5


medical, psychological and criminal backgrounds. Both commit the same crime of breaking and entering of a non-dwelling with a potential sentence of 1-10 years in the penitentiary. Because of the fairness of the bail system, each has a bond set in the amount of $50,000 with the option of posing 10% cash. Both have trial dates that for whatever reason results in sentencing one year from the date of arrest. The first individual cannot make bond and spends one year in confinement before trial and sentencing. The second brother has a girlfriend who the week before his arrest buys the winning lottery ticket winning the $5,000 necessary to post her boyfriend's bond. Both are sentenced on the same day to 1-10 years. Both are model inmates and make parole the first time they are eligible. The first brother has spent two years confinement based upon the same facts as his sibling who happened to be dating a lucky lottery winner.

By giving Appellant 495 days credit for time served on the back end of his sentence instead of the front end, the Appellant contends that he effectively received no credit for time served for the purposes of calculating his parole eligibility date, thus violating the constitutional guarantee of equal protection under the law. Appellant asserts, and the State agrees, that "confinement is confinement whether it is spent in the custody of the Department of Corrections or in the custody of the Regional Jail system." However, under the current formula for calculating presentence credit, "two individuals similarly situated are subjected to different punishments for the same criminal conduct based solely upon economic status if one is unable to make bail."

West Virginia Code

Download 35140.pdf

West Virginia Law