Opinion
No. 20-1023
06-16-2021
STATE of West Virginia EX REL. Scott PHALEN, Petitioner v. Craig ROBERTS, Superintendent, South Central Regional Jail, Respondent
John Sullivan, Esq., Ronni Sheets, Esq., Kanawha County Public, Defender Office, Charleston, West Virginia, Counsel for Petitioner. Patrick Morrisey, Esq., West Virginia Attorney General, Briana J. Marino, Esq., Andrea Nease Proper, Esq., Assistant Attorneys General, Counsel for Respondent.
John Sullivan, Esq., Ronni Sheets, Esq., Kanawha County Public, Defender Office, Charleston, West Virginia, Counsel for Petitioner.
Patrick Morrisey, Esq., West Virginia Attorney General, Briana J. Marino, Esq., Andrea Nease Proper, Esq., Assistant Attorneys General, Counsel for Respondent.
HUTCHISON, Justice: West Virginia law provides that any inmate may be paroled after serving one-fourth of a definite term sentence. W. Va. Code § 62-12-13(b)(1)(A) [2021]. After serving one-fourth of his ten-year definite term sentence for violating conditions of his supervised release, Petitioner Scott Phalen was released on parole. However, he was arrested and reincarcerated six months later because the Division of Corrections and Rehabilitation ("DOCR") determined that he had been released in error based upon an internal policy that inmates who are incarcerated for violating the conditions of their supervised release are neither eligible for parole pursuant to West Virginia Code § 62-12-13 nor entitled to receive commutation from their sentences for good conduct (also referred to as "good time") pursuant to West Virginia Code § 15A-4-17. Petitioner seeks an original jurisdiction writ of habeas corpus to direct Respondent Craig Roberts, Superintendent, South Central Regional Jail, to restore him to parole. See W. Va. Const. Art. VIII, § 3 ; W. Va. Code § 53-4-1 [1923]. Upon careful consideration of the parties’ briefs and oral arguments, the appendix record, and the pertinent legal authority, including 2021 legislation enacted following the filing of the instant petition that purports to preclude petitioner from being granted good time after a certain date, and for the reasons set forth below, we grant petitioner's request for habeas relief.
I. Factual and Procedural Background
The relevant facts of this case are gleaned from representations made in the parties’ briefs and the scant appendix record. In 2011, petitioner was indicted by a Kanawha County Grand Jury on the offenses of first-degree sexual assault, first-degree sexual abuse, sexual abuse by a parent, and incest. The indictment alleged that petitioner's crimes occurred "on or about December 20, 2010." He pled guilty to one count of first-degree sexual abuse, and, on February 14, 2012, he was sentenced to one to five years in prison, pursuant to West Virginia Code § 61-8B-7 [2006] (the first-degree sexual abuse statute) followed by fifteen years of extended supervised release, pursuant to West Virginia Code § 62-12-26(a). See Syl. Pt. 11, in part, State v. James , 227 W. Va. 407, 710 S.E.2d 98 (2011) ("The imposition of the legislatively mandated additional punishment of a period of supervised release [is] an inherent part of the sentencing scheme for certain offenses enumerated in West Virginia Code § 62-12-26."). Petitioner discharged his prison sentence on December 2, 2013, and then commenced the period of supervised release. See W. Va. Code § 62-12-26(d) ("The period of supervised release imposed by the provisions of this section shall begin upon the expiration of any period of probation, the expiration of any sentence of incarceration or the expiration of any period of parole supervision imposed or required of the person so convicted, whichever expires later.").
West Virginia Code § 62-12-26 has been amended since petitioner committed the underlying offense but neither party contends that any amendments to the statute would materially impact or are otherwise relevant to petitioner's request for habeas relief. For ease of reference, therefore, we cite to the statute that is now in effect. West Virginia Code § 62-12-26(a) [2020] provides, in pertinent part, as follows:
(a) Notwithstanding any other provision of this code to the contrary, any defendant convicted [of] ... a felony violation of the provisions of § 61–8B–1 et seq. , ... of this code shall, as part of the sentence imposed at final disposition, be required to serve, in addition to any other penalty or condition imposed by the court, a period of supervised release of up to 50 years: Provided , That the period of supervised release imposed by the court pursuant to this section ... shall be no less than 10 years: ... And Provided further , That pursuant to the provisions of § 62-12-26(h) of this code, a court may modify, terminate, or revoke any term of supervised release imposed pursuant to § 62-12-26(h) of this code.
West Virginia Code § 62-12-26(h)(3) provides that if a circuit court "finds by clear and convincing evidence that the defendant violated a condition of supervised release," then the circuit court may revoke the defendant's release and "require the defendant to serve in prison all or part of the term of supervised release." The circuit court found that petitioner violated the conditions of his supervised release in 2014, for which he was sentenced to five years in prison. After being released to complete the period of supervised release, petitioner again violated the conditions of his supervised release and so, on June 9, 2017, the court ordered that petitioner "be sentenced to confinement ... for a determinate term of ten (10) years" for the violation.
West Virginia Code § 62-12-26(b) sets forth certain prohibited conduct for "[a]ny person required to be on supervised release[.]" Further, West Virginia Code § 62-12-26(f) provides that "[a] defendant sentenced to a period of supervised release shall be subject to any or all of the conditions applicable to a person placed upon probation pursuant to the provisions of § 62-12-9 ...." The parties do not explain, nor does the appendix record reveal, in what way petitioner violated the conditions of his supervised release.
West Virginia Code § 62-12-13(b)(1)(A) [2021] provides that "[a]ny inmate of a state correctional institution is eligible for parole if he or she ... has served one fourth of his or her definite term sentence[.]" After serving one fourth of his definite ten-year term, petitioner appeared before the Parole Board, which determined that petitioner should be released on parole. Petitioner was released on parole on June 29, 2020. In November of 2020, five months after petitioner's release on parole, the DOCR created new internal policy directives establishing that, among others, "sex offenders and child/abuse neglect offenders" are neither eligible for parole nor shall receive day-for-day good time for incarceration imposed for revocation of supervised release. On December 7, 2020, the DOCR issued a warrant for petitioner's arrest because, pursuant to this new DOCR policy, petitioner had been released from custody on June 29, 2020, due to a "clerical error" or "mistake." See W. Va. Code § 62-8-8(a) [2007] (authorizing the issuance of "an order of arrest for inmates who have been released from the custody of the [now DOCR] due to[,] [inter alia,] a clerical error[ ] [or] mistake").
Like the supervised release statute (West Virginia Code § 62-12-26 ), the parole eligibility statute, West Virginia Code § 62-12-13, has been amended numerous times since petitioner committed the underlying offense of first-degree sexual abuse. Since the commission of petitioner's offense, the statute has consistently provided that an inmate is eligible for parole after serving "one fourth of his or her definite term sentence[.]" The parties do not contend that any of the amendments made to the statute since petitioner's crimes were committed are relevant to petitioner's request for habeas relief. Therefore, for ease of reference, we cite to the current version of the statute in this opinion.
See W. Va. Code § 15A-4-17(c) (providing that inmates "shall be granted one day [of] good time for each day he or she is incarcerated").
We note that while the DOCR policy precluding good time for incarceration imposed pursuant to revocation of supervised release was a written policy ("Policy Directive 151.06"), the similar policy concerning parole eligibility was not reduced to writing. Further, very little explanation is given for the enactment of these policy directives except for respondent's general statement that, upon the establishment of the DOCR in July of 2018, see generally West Virginia Code §§ 15A-3-1 through -18, the DOCR Commissioner conducted a widescale review of good time and parole eligibility among the prison population. The underlying reason for the review, however, is unclear.
The December 7, 2020, arrest warrant did not identify the "clerical error" or "mistake" that precipitated petitioner's release from custody in June of 2020. And, before this Court, respondent has given conflicting reasons for the issuance of the warrant. In his initial summary response to petitioner's petition for a writ of habeas corpus, respondent states that the "clerical error" or "mistake" upon which the arrest warrant was issued was that petitioner was not eligible for parole pursuant to the recently issued DOCR policy. However, in his later-filed supplemental response to petitioner's petition, respondent states, without acknowledging the earlier justification given, that petitioner was released on parole in error based upon the DOCR policy relative to good time. See Discussion infra.
On December 23, 2020, petitioner filed a petition for a writ of habeas corpus with this Court seeking reinstatement to parole. Following the filing of respondent's summary response to the petition, we issued a rule to show cause and scheduled oral argument for April 14, 2021.
While this case was pending, during the 2021 Legislative session, Senate Bill 713 ("S.B. 713") was introduced to amend the good time statute, West Virginia Code § 15A-4-17, in relevant part, to exclude inmates committed, pursuant to West Virginia Code § 62-12-26, for violating the conditions of their supervised release from being granted good time except that "an inmate who had good time calculated into his or her release prior to October 21, 2020," is entitled to the good time awarded or earned. See W. Va. Code § 15A-4-17(a) [2021].
The statute governing good time was formerly codified at West Virginia Code § 28-5-27. The relevant good time provision in effect at the time petitioner's crime was committed was West Virginia Code § 28-5-27(a) [1984]. It provided:
All adult inmates now in the custody of the commissioner of corrections, or hereafter committed to the custody of the commissioner of corrections, except those committed pursuant to article four, chapter twenty-five of this code, shall be granted commutation from their sentences for good conduct in accordance with this section.
Id. We observe that the parties do not reference this version of the statute in their briefs, but, instead, cite to the 2018 version of the good time statute, West Virginia Code § 15A-4-17. Regardless, we note that neither West Virginia Code § 28-5-27(a) [1984] nor West Virginia Code § 15A-4-17(a) [2018] excluded from its application inmates incarcerated for violating the conditions of their supervised release. See Discussion infra.
Senate Bill 713 was passed by the Legislature on April 7, 2021, and approved by the Governor twelve days later. The Legislature made S.B. 713 effective on April 30, 2021. In light of this new legislation, which respondent states is simply a codification of the DOCR's "stance" in Policy Directive 151.06, this Court directed the parties to file supplemental briefs addressing the impact of S.B. 713 on the issues raised in petitioner's habeas petition.
See n. 5, supra.
Oral argument was conducted on April 14, 2021, and the ordered supplemental briefing was filed thereafter. As discussed in more detail below, respondent avers that pursuant to S.B. 713, petitioner falls squarely within the category of inmates excluded from receiving good time because he is incarcerated for violating the conditions of his supervised release pursuant to West Virginia Code § 62-12-26. Thus, applying S.B. 713 to petitioner's term of incarceration, and giving him credit for good time received prior to October 21, 2020, as the statute provides, respondent states that S.B. 713 changes petitioner's minimum discharge date from May 1, 2027, to November 10, 2023. For his part, petitioner argues that the retroactive application of S.B. 713 to his sentence precluding him from being granted good time after October 20, 2020, violates constitutional ex post facto principles and, insofar as it applies to inmates whose underlying offenses were committed prior to the effective date of the statute, it is unconstitutional.
II. Standard for Issuance of a Writ of Habeas Corpus
This case is before us on petitioner's original petition for a writ of habeas corpus. Pursuant to West Virginia Code § 53-4A-7(c) of the Post-Conviction Habeas Corpus statute, "we are given broad powers in fashioning the form of relief accorded in a habeas corpus proceeding." State ex rel. McMannis v. Mohn , 163 W. Va. 129, 141, 254 S.E.2d 805, 811 (1979).
Furthermore, we have explained that, generally, " ‘Habeas Corpus is a suit wherein probable cause therefor being shown, a writ is issued which challenges the right of one to hold another in custody or restraint.’ Syl. pt. 4, Click v. Click, 98 W.Va. 419, 127 S.E. 194 (1925)." Syl. Pt. 1, State ex rel. Crupe v. Yardley , 213 W. Va. 335, 582 S.E.2d 782 (2003). Accord Tasker v. Griffith, 160 W.Va. 739, 742, 238 S.E.2d 229, 231 (1977) ("Habeas corpus lies to test the legality of the restraint under which a person is detained."); Syl. pt. 1, State ex rel. Tune v. Thompson, 151 W.Va. 282, 151 S.E.2d 732 (1966) ("The sole issue presented in a habeas corpus proceeding by a prisoner is whether he is restrained of his liberty by due process of law.").
In determining whether a writ shall issue, we are also asked to determine whether a certain provision of S.B. 713 violates the constitutional prohibition against ex post facto laws. " ‘The constitutionality of a statute is a question of law which this Court reviews de novo. ’ Syl. Pt. 1, State v. Rutherford , 223 W. Va. 1, 672 S.E.2d 137 (2008)." Syl. Pt. 2, State v. James , 227 W. Va. 407, 710 S.E.2d 98 (2011). With these standards and considerations in mind, we proceed to examine the petition before us.
III. Discussion
Our determination of whether petitioner should be granted habeas relief rests on the resolution of two questions: first, whether petitioner, as an inmate incarcerated for violating the conditions of his supervised release, was eligible for parole when he was released on June 29, 2020; and second, whether S.B. 713 may be applied to petitioner to exclude him from being awarded or earning good time after October 20, 2020.
This Court previously upheld West Virginia Code § 62-12-26 as constitutional upon several challenges including cruel and unusual punishment, procedural due process, and double jeopardy grounds. See State v. James , 227 W.Va. 407, 710 S.E.2d 98 (2011).
While each question requires its own analysis, we observe, as a threshold matter, that respondent relies on the same underlying argument with respect to both – that, pursuant to this Court's decision in State v. Hargus , the term of incarceration that petitioner is currently serving is not a "sentence" but, rather, is a "sanction" that was imposed upon him by the sentencing court for violating the conditions of his supervised release. As such, respondent argues, petitioner does not fall within the purview of either the parole eligibility or good time statute because each requires that the inmate be serving a "sentence" in order for the statute to apply. According to respondent, the DOCR policy directives that were issued following petitioner's release on parole and that precipitated his arrest and reincarceration followed from Hargus – specifically, he argues that, "[f]or a period of incarceration to be a ‘sentence,’ a new case, with a new crime, new indictment, new plea or trial by jury, and new final disposition would have to occur." In contrast, respondent argues, "a ‘sanction’ is an enforcement penalty for the violation of the terms and conditions of the sentence already imposed for a previously adjudicated crime." Respondent contends that petitioner's current term of incarceration falls into the latter category and, thus, he is excluded both from being eligible for parole and from being granted commutation from his "sanction" for good conduct by the plain and unambiguous language of the relevant statutes, which only apply to an inmate who is serving a "sentence." We disagree.
232 W. Va. 735, 753 S.E.2d 893 (2013).
Although respondent contends that "many" of this Court's opinions have "acknowledged the distinctions between a ‘sanction’ and a ‘sentence[,]’ " he fails to cite to any case other than Hargus for this proposition.
Respondent also attributes the DOCR's policy directives to the supervised release statute itself. In a strained and very convoluted argument, respondent appears to contend that because West Virginia Code § 62-12-26 gives the sentencing court wide discretion in deciding whether to modify or revoke a term of supervised release and order the offender to be incarcerated, the statute "provides for sanctions." See W. Va. Code §§ 62-12-26(h)(2) through (4) (providing that "[t]he court may " under certain conditions, "[e]xtend a period of supervised release if less than the maximum authorized period was previously imposed or modify, reduce, or enlarge the conditions of supervised release"; "[r]evoke a term of supervised release and require the defendant to serve in prison all or part of the term of supervised release"; or "[o]rder the defendant to remain at his or her place of residence during nonworking hours").
At issue in Hargus was "the constitutionality of the portion of W. Va. Code § 62-12-26 that permits the revocation of supervised release and additional incarceration when a sex offender violates a condition of supervised release." Id. at 739, 753 S.E.2d at 897. The Hargus defendants argued that West Virginia Code § 62-12-26(g)(3) (now § 62-12-(h)(3)) violated their right to procedural due process because, under the statute, a defendant's supervised release can be revoked and he or she can be ordered to serve an additional term of incarceration if a court finds a violation by clear and convincing evidence. The defendants argued that a jury should be required to find guilt of a violation beyond a reasonable doubt, "which is required for a finding of guilt in a criminal trial." Id. at 741, 753 S.E.2d at 899.
In determining that the challenged statutory provision did not violate the defendants’ constitutional right to due process, we looked to Johnson v. United States , 529 U.S. 694, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000), which addressed a similar federal statute, and observed that the United States Supreme Court "attributed post-revocation penalties to the defendant's original conviction and not to a violation of the conditions of supervised release." Hargus , 232 W. Va. at 741, 753 S.E.2d at 899. Quoting Johnson , we explained that although violations of the conditions of supervised release
"often lead to reimprisonment, the violative conduct need not be criminal and need only be found by a judge under a preponderance of the evidence standard, not by a jury beyond a reasonable doubt. Where the acts of violation are criminal in their own right, they may be the basis for separate prosecution, which would raise an issue of double jeopardy if the revocation of supervised release were also punishment for the same offense. Treating postrevocation sanctions as part of the penalty for the initial offense, however (as most courts have done), avoids these difficulties."
Hargus , 232 W. Va. at 741, 753 S.E.2d at 899 (quoting Johnson , 529 U.S. at 700, 120 S.Ct. 1795 ). We thus "construe[d] a revocation proceeding under W. Va. Code § 62-12-26(g)(3) to be a continuation of the prosecution of the original offense and not a new prosecution of additional offenses." Id. at 742, 753 S.E.2d at 900. Also in Hargus , we rejected the defendants’ argument that the extended supervision statute violates double jeopardy principles, reiterating that "a post-revocation sanction simply is a continuation of the legal consequences of a defendant's original crime. In other words, it is part of a single sentencing scheme arising from the defendant's original conviction. It is not an additional penalty resulting from the defendant's initial conviction." Id. at 743, 753 S.E.2d at 901 (emphasis added). See United States v. Ketter , 908 F.3d 61, 65 (4th Cir. 2018) (" ‘[T]he term of supervised release, the revocation of that term, and any additional term of imprisonment imposed for violating the terms of the supervised release are all part of the original sentence.’ " (internal citations omitted)).
Based upon the reasoning in Johnson , we determined that a revocation hearing "does not require a finding of guilt by a jury beyond a reasonable doubt" and "the fact that a defendant's supervised release may be revoked and additional incarceration imposed based upon the circuit court's finding by clear and convincing evidence that a defendant violated the terms of his supervised release does not violate due process principles." Hargus , 232 W. Va. at 742, 753 S.E.2d at 900.
Thus, in syllabus point seven of Hargus , we held that West Virginia Code § 62-12-26(g)(3), "which provides for additional sanctions including incarceration, upon revocation of a criminal defendant's period of supervised release," does not violate the prohibition against double jeopardy. Id. at 743, 753 S.E.2d at 901.
We find respondent's interpretation of Hargus to be sorely misguided. It is abundantly clear that Hargus made no distinction between a "sentence" and a "sanction" but, instead, used those terms interchangeably and without bestowing any special significance upon either of them with respect to post-revocation incarceration, parole eligibility, good time, or otherwise. As further support that respondent completely misapprehends our holdings in that case, he fails to recognize that Hargus proceeded to examine the defendants’ individual "post-revocation sentences " to determine whether they violated the disproportionality principle that is implicit in the cruel and unusual punishment clause of the state and federal constitutions. See id. at 743, 745, 753 S.E.2d at 901, 903 (noting that "Mr. Hargus violated a condition of his supervised release [, and] .... [a]s a result, [he] was sentenced to a post-revocation period of incarceration of five years" and, similarly, that after Mr. Lester knowingly violated a condition of his supervised release, it was revoked, "and he was sentenced to two years of incarceration" (emphasis added)).
Furthermore, since Hargus , we have applied various aspects of that decision to other cases and, in so doing, have consistently considered the offenders’ post-revocation incarcerations as "sentences." See State v. David T. , No. 19-0778, 2020 WL 6482740 (W. Va., Nov. 4, 2020) (memorandum decision); State v. Payne , No. 17-0195, 2018 WL 1444287 (W. Va., March 23, 2018) (memorandum decision); State v. Winning , No. 17-0921, 2018 WL 4944416 (W. Va., Oct. 12, 2018) (memorandum decision); State v. Parker-Boling , No. 16-1193, 2017 WL 5629689 (W. Va., Nov. 22, 2017) (memorandum decision); State v. Roger G. , No. 14-1200, 2015 WL 5125486 (W. Va., Aug. 31, 2015) (memorandum decision).
Clearly, respondent's attempt to characterize post-revocation incarceration as anything other than a "sentence" is not supported by our decision in Hargus or elsewhere in the law and cannot stand. As a result, to the extent that the DOCR policy directives are premised upon this faulty interpretation of Hargus as justification for petitioner's arrest and reincarceration, they are unenforceable.
We now proceed to consider whether petitioner, as an inmate who is serving a sentence for violating the conditions of his supervised release pursuant to West Virginia Code § 62-12-26, was eligible for parole when he was released on June 29, 2020, and, further, whether S.B. 713 may be applied to him so as to exclude him from being granted good time after October 20, 2020. We will consider each in turn.
Parole Eligibility
An inmate's eligibility for parole is governed by West Virginia Code § 62-12-13. The parties focus specifically on whether petitioner meets the requirements of West Virginia Code § 62-12-13(b)(1)(A), which states:
(b) Any inmate of a state correctional institution is eligible for parole if he or she:
(1)(A) Has served the minimum term of his or her indeterminate sentence or has served one fourth of his or her definite term sentence , as the case may be[.]
West Virginia Code § 62-12-13 includes additional requirements for parole eligibility that are not alleged to be at issue in petitioner's case.
Petitioner argues that he satisfied the statute's objective criteria for parole eligibility in that he is "[a]ny inmate" who "has served one fourth of his definite term sentence," and that, following a hearing before the Parole Board, he was properly granted parole in June 2020. He contends that West Virginia Code § 62-12-13(b)(1)(A) is clear and unambiguous in that it encompasses "any" inmate and does not except from its application inmates who are incarcerated for violating the conditions of their extended supervised release. We agree.
In that respondent's entire argument hinges on "whether [p]etitioner's current term of incarceration is defined as a ‘sentence’ or a ‘sanction,’ " he effectively concedes that, if petitioner is determined to be serving a "sentence," he is eligible for parole under West Virginia Code § 62-12-13(b)(1)(A).
Initially, we observe that the "[t]he primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." Syl. Pt. 1, Smith v. State Workmen's Comp. Comm'r , 159 W. Va. 108, 219 S.E.2d 361 (1975). However, " ‘[w]here the language of a statute is plain and unambiguous, there is no basis for application of rules of statutory construction; but courts must apply the statute according to the legislative intent plainly expressed therein.’ Syllabus Point 1, Dunlap v. State Compensation Director , 149 W. Va. 266, 140 S.E.2d 448 (1965)." Syl. Pt. 7, State v. Mills , 243 W. Va. 328, 844 S.E.2d 99 (2020). We find West Virginia Code § 62-12-13(b)(1)(A) to be free from ambiguity. "Where the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation." Syllabus Point 2, Crockett v. Andrews , 153 W. Va. 714, 172 S.E.2d 384 (1970).
In plain language, West Virginia Code § 62-12-13(b)(1)(A) provides that "any inmate ... is eligible for parole if he or she ... has served one-fourth of his or her definite term sentence." This provision does not exclude inmates who are serving sentences for violating the conditions of their supervised release pursuant to West Virginia Code § 62-12-26. We have often said that "[i]t is not for this Court arbitrarily to read into a statute that which it does not say. Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted." Syl. Pt. 11, Brooke B. v. Ray C. , 230 W.Va. 355, 738 S.E.2d 21 (2013).
Accordingly, we hold that West Virginia Code § 62-12-13(b)(1)(A) does not exclude from parole eligibility inmates who are incarcerated for violating the conditions of their supervised release pursuant to West Virginia Code § 62-12-26. Therefore, petitioner was eligible for parole pursuant to West Virginia Code § 62-12-13(b)(1)(A) when, after serving one fourth of his definite ten year sentence, he was released on parole on June 29, 2020. To the extent the subsequently issued warrant for his arrest was based upon a determination that petitioner was ineligible for parole, the warrant was issued in error. See n. 6.
As previously noted, whether petitioner satisfied the other statutory requirements for parole is not at issue in this habeas petition.
Senate Bill 713 and Good Time
We now address whether S.B. 713, which became effective on April 30, 2021, may be applied to exclude petitioner from being granted good time. S.B. 713 amended West Virginia Code § 15-4-17, which now provides:
(a) All adult inmates placed in the custody of the Commissioner of the Division of Corrections and Rehabilitation pursuant to a term of court-ordered incarceration for a misdemeanor or felony, except those committed pursuant to § 25-4-1 et seq. and § 62-12-26 of this code, shall be granted commutation from their sentences for good conduct in accordance with this section: Provided, That nothing in this section shall be considered to recalculate the "good time" of inmates currently serving a sentence or of giving back good time to inmates who have previously lost good time earned for a disciplinary violation: Provided, however , That as of the effective date of the amendments to this section enacted during the regular session of the Legislature, 2021, an inmate who had good time
calculated into his or her release date prior to October 21, 2020, is entitled to the benefit of the good time awarded or earned before that date , unless the good time was lost due to a disciplinary violation.
(Emphasis added).
Petitioner argues that, even if he is reinstated to parole, S.B. 713, if applied to him, would operate to increase his sentence by extending his maximum discharge date. See W. Va. Code § 62-12-18 ("The period of parole shall be the maximum of any sentence, less deductions for good conduct and work as provided by law, for which the paroled inmate, at the time of release, was subject to imprisonment under his or her definite or indeterminate sentence, as the case may be."); see also W. Va. Code § 15A-4-17(b) ("The commutation of sentence, known as ‘good time,’ shall be deducted from the maximum term of indeterminate sentences or from the fixed term of determinate sentences."). Petitioner argues that, while it is within the Legislature's authority to exclude inmates incarcerated pursuant to West Virginia Code § 62-12-26 from statutory sentencing provisions, constitutional ex post facto principles prohibit the statute's application to inmates whose offenses were committed prior to the effective date of the statute. We agree.
With regard to whether S.B. 713 applies to petitioner, respondent reiterates that petitioner is serving a "sanction" for violating the conditions of his supervised release rather than a "sentence" and that S.B. 713 "specifically removes those serving sanctions pursuant to violations of § 62-12-26 from the application of" the good time statute. Having already rejected respondent's claim that petitioner is not serving a sentence, we need not revisit the argument here. And, because respondent relies exclusively on this argument, he does not address whether S.B. 713 violates constitutional ex post facto principles.
This Court has recognized that the commutation from a prison sentence for good conduct is a substantial statutory right that is subject to legal protection. See Syl. Pt. 5, State ex rel. Williams v. Dep't of Mil. Affs. & Pub. Safety, Div. of Corr. , 212 W. Va. 407, 573 S.E.2d 1 (2002) (" ‘Good time credit is a valuable liberty interest protected by the due process clause, W. Va. Const. art. III § 10.’ ") (quoting Syl. Pt. 2, State ex rel. Gillespie v. Kendrick, 164 W. Va. 599, 265 S.E.2d 537 (1980) ). Accordingly, legal provisions affecting good time are scrutinized under the Ex Post Facto Clause. See Lynce v. Mathis , 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997) ; Weaver v. Graham , 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) ; see also Adkins v. Bordenkircher , 164 W. Va. 292, 262 S.E.2d 885 (1980) ; Hasan v. Holland , 176 W. Va. 179, 342 S.E.2d 144 (1986).
" ‘Commutation of time for good conduct is a right created by the Legislature.’ Syllabus point 8, in part, Woodring v. Whyte, 161 W.Va. 262, 242 S.E.2d 238 (1978)." Syl. Pt. 5, State ex rel. Williams v. Dep't of Mil. Affs. & Pub. Safety, Div. of Corr. , 212 W. Va. 407, 573 S.E.2d 1 (2002).
Ex post facto prohibitions arise out of Article I, Section 10, clause 1 of the United States Constitution, "No State shall ... pass any Bill of Attainder, ex post facto law, or law impairing the Obligation of Contracts," and West Virginia Constitution, Article III, section 4, "No bill of attainder, ex post facto law, or law impairing the obligation of a contract shall be passed."
It is well understood that "[u]nder Ex post facto principles of the United States and West Virginia Constitutions, a law passed after the commission of an offense which increases the punishment, lengthens the sentence or operates to the detriment of the accused, cannot be applied to him." Syl. Pt. 1, Adkins v. Bordenkircher , 164 W. Va. 292, 262 S.E.2d 885 (1980). Thus, "for a criminal or penal law to be ex post facto : it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it." Weaver , 450 U.S. at 29, 101 S.Ct. 960 (footnote omitted); see also Lynce , 519 U.S. at 441, 117 S.Ct. 891 ; Collins v. Youngblood , 497 U.S. 37, 47, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). As the United States Supreme Court explained more fully in Weaver ,
the ex post facto prohibition[ ] ... forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred. Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was
prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense.
Id. at 30-31. With respect to a statutory provision concerning the earning or awarding of good time, " ‘[t]he critical issue ... [is] ... whether the standards by which defendant's date of release is to be determined have been altered to his detriment. In other words, ... whether an inmate could earn more good time under the prior good time statute than he can under the present one.’ " Hasan , 176 W. Va. at 181, 342 S.E.2d at 146 (quoting In re Stanworth , 33 Cal.3d 176, 187 Cal.Rptr. 783, 654 P.2d 1311, 1318 (1982) ).
In Adkins , sixteen inmates sought habeas corpus relief because a newly enacted good time statute was applied to their sentences even though their underlying crimes were committed prior to the effective date of the statute (May 1, 1978). 164 W. Va. at 293-94, 262 S.E.2d at 885-86. It was undisputed that, "under the former good time statute, as applied, a prison inmate could earn more good time credit than under the [newly enacted] good time statute, and therefore was eligible for earlier release than a similarly situated inmate classified under the new system" Id. at 294, 262 S.E.2d at 886. See id. at 299, 262 S.E.2d at 888-89 (further explaining that "the potential sentences of some of the petitioners were, in effect, lengthened through the application to them of the less beneficial terms of the new good time statute. This lengthening results from applying the lower deduction rate of the new law to their sentences, thereby delaying their release date."). Recognizing that " ‘depriving a prisoner of the right to earn good conduct deductions ... materially "alters the situation of the accused to his disadvantage[,]" ’ " we held that in order to avoid ex post facto principles, the newly enacted good time statute "must be construed to apply to those persons who committed offenses after May 1, 1978, and those presently incarcerated ... for crimes committed prior to May 1, 1978, are entitled to good time credit as calculated under" the old statute. Id. at syl. pt. 2.
Id. at 299, 262 S.E.2d at 888 (quoting Greenfield v. Scafati , 277 F. Supp. 644, 646 (D. Mass 1967), aff'd , 390 U.S. 713, 88 S.Ct. 1409, 20 L.Ed.2d 250 (1968) (internal citation omitted)).
We find Adkins to be directly on point. "For purposes of assessing constitutional rights under the ex post facto clause of any penal statute intended to punish a person, the triggering date is the date of the offense." State v. Deel , 237 W. Va. 600, 608, 788 S.E.2d 741, 749 (2016). Senate Bill 713, on its face, applies to exclude all adult inmates who are committed pursuant to West Virginia Code § 62-12-26 from being granted commutation from their sentences for good conduct except that, as of the effective date of the 2021 amendments (i.e., April 30, 2021), "an inmate who had good time calculated into his or her release date prior to October 21, 2020, is entitled to the benefit of the good time awarded or earned before that date, unless the good time was lost due to a disciplinary violation." Senate Bill 713's effect, therefore, is to preclude all inmates who are incarcerated for violating a condition of their supervised release from receiving good time after October 20, 2020, regardless of when their underlying crimes were committed. We find this provision to be an overt violation of the prohibition against ex post facto laws.
Accordingly, we hold that, in order to avoid the constitutional prohibition against ex post facto laws, West Virginia Code § 15A-4-17(a) [2021] shall not be applied to those inmates who committed the underlying crimes for which they are incarcerated pursuant to West Virginia Code § 62-12-26 prior to April 30, 2021, the effective date of the statute, regardless of any contrary language contained therein. In light of this holding, we conclude that S.B. 713, West Virginia Code § 15A-4-17, as amended, may not be applied to petitioner, whose underlying offense was committed in 2010, to preclude him from being granted commutation from his sentence for good conduct in accordance with that statute. IV. Conclusion
In recognition that "[t]he legislature has the primary right to define crimes and their punishments subject only to certain constitutional limitations[,]" syl. pt. 1, State ex rel. Atkinson v. Wilson , 175 W. Va. 352, 332 S.E.2d 807 (1984), and barring some other challenge to S.B. 713, inmates who are incarcerated pursuant to West Virginia Code § 62-12-26 for offenses committed on or after the effective date of the statute may be excluded from being granted commutation from their sentences for good conduct in accordance with West Virginia Code § 15A-4-17. See Adkins , 164 W. Va. at 300 n.8, 262 S.E.2d at 889 n.8 ("As to those petitioners and others who are incarcerated on or after May 1, 1978 [i.e., the effective date of the newly enacted good time statute], for offenses committed on or after that date, the provisions of the new good time credit statute will apply.").
Based upon all of the foregoing, we grant petitioner habeas relief, and direct respondent to reinstate petitioner to parole and, further, to calculate his good time based upon the statute that was in effect at the time petitioner's underlying crime was committed. The Clerk is hereby directed to issue the mandate contemporaneously herewith.
Writ granted.
CHIEF JUSTICE JENKINS dissents and reserves the right to file a dissenting opinion.
JUSTICE ARMSTEAD dissents and reserves the right to file a dissenting opinion.
Armstead, Justice, dissenting, joined by Chief Justice Jenkins :
It is unfortunate that, due to a mistake or clerical error, the Petitioner in this case was erroneously released on parole and subsequently reincarcerated due to such error. Nevertheless, based upon my review of applicable law and the policies promulgated by the West Virginia Division of Corrections and Rehabilitation (DCR), I do not believe that inmates, such as Petitioner, who are incarcerated for violating the conditions of their extended supervised release, are eligible for parole nor are they entitled to receive commutation from their sentences for good time served. Therefore, I respectfully dissent from the majority's decision.
Petitioner pled guilty to one count of first-degree sexual abuse and, in 2012, was sentenced to one to five years in prison followed by fifteen years of extended supervised release. Pursuant to West Virginia Code § 62-12-26(a), the circuit court had no discretion in whether to impose a term of supervised release. After discharging his prison sentence, Petitioner began the period of his supervised release. Less than six months after being discharged from prison, Petitioner violated his extended supervised release. Accordingly, his term of supervised release was revoked, and he was remanded to serve five years in prison. After discharging the five-year sentence, Petitioner was released to complete his extended supervised release. Approximately two months later, he was once again charged with violating his extended supervised release. He was then placed in the custody of the DCR for ten years for this second violation. Petitioner was improvidently released on parole due to a "clerical error" for this violation on June 29, 2020.
Petitioner's term of imprisonment was imposed pursuant to West Virginia Code § 61-8B-7 (2006). Supervised release is governed by West Virginia Code § 62-12-26(a), which provides in pertinent part, as follows:
Notwithstanding any other provision of this code to the contrary, any defendant convicted [of] ... a felony violation of the provisions of § 61-8B-1 et seq. , ... of this code shall, as part of the sentence imposed at final disposition, be required to serve, in addition to any other penalty or condition imposed by the court, a period of supervised release of up to 50 years: Provided , That the period of supervised release imposed by the court pursuant to this section ... shall be no less than 10 years ... And Provided further , That pursuant to the provisions of subsections (a) and (h) of this section, a court may modify, terminate, or revoke any term of supervised release imposed pursuant to this subsection.
W. Va. Code § 62-12-26(a). As the majority opinion observes, W. Va. Code § 62-12-26 has been amended since the time the Petitioner was sentenced for the underlying crime. Though I disagree with the majority's understanding of this statute, I agree that the amendments are not relevant to Petitioner's case. Accordingly, and like the majority, I cite to the 2020 version of the statute, which is now in effect.
Pursuant to West Virginia Code § 62-12-26(d), supervised release begins "upon the expiration of any period of probation, the expiration of any sentence of incarceration or the expiration of any period of parole supervision imposed or required of the person so convicted, whichever expires later."
DCR contends that Petitioner did not commit a new crime.
DCR conducted a review of good time and parole eligibility and, as a result, issued Policy Directive Number 151.06 on or about November 23, 2020. Policy Directive 151.06 established that certain inmates, including inmates who were incarcerated "pursuant to revocation of extended supervision for sex offenders/child abusers," were not entitled to "receive day-for-day good time for incarceration." Petitioner was deemed to have been released due to a clerical error or mistake and was arrested and incarcerated at South Central Regional Jail. DCR argues, and I agree, that Policy Directive 151.06 was required to bring DCR's analysis of offender incarcerations in line with legislative enactments.
Parole Eligibility
An inmate's eligibility for parole is outlined in West Virginia Code § 62-12-13. See W. Va. Code § 62-12-13(b)(2021). Of particular importance to the instant case is the requirement that, in order to be released on parole, an inmate must have "served the minimum term of his or her indeterminate sentence or has served one fourth of his or her definite term sentence , as the case may be[.]" W. Va. Code § 62-12-13(b)(1)(A) (emphasis added). In this case, the majority simply finds that Petitioner is eligible for parole during his term of extended supervised release, because he is an inmate and has served one fourth of his definite term of his original term of incarceration for the underlying crime. But the analysis of W. Va. Code § 62-12-13(b)(1)(A) does not stop there. I believe that the majority's conclusion does not take into consideration the fact that this statute is written in the context of the imposition of the original sentence and that the Petitioner, while on supervised release and extended supervised release, was serving a sanction, not a sentence, as that term is used in W. Va. Code § 62-12-13(b)(1)(A).
As the majority opinion observes, West Virginia Code § 62-12-13 has been amended numerous times since 2012, when Petitioner was sentenced for the underlying offense. Though I disagree with the majority's understanding of this statute, I agree that the amendments are not relevant to Petitioner's case. Accordingly, and like the majority, I cite to the 2020 version of the statute, which is now in effect.
This Court has previously described a sentence as "[t]he judgment formally pronounced by the court or judge upon the defendant after his conviction ... usually in the form of ... incarceration, or probation." State ex rel. Goff v. Merrifield , 191 W. Va. 473, 477, 446 S.E.2d 695, 699 (1994). In the instant case, Petitioner was sentenced in 2012 to one to five years in prison followed by fifteen years of supervised release for his conviction of first-degree sexual abuse. At the time of his re-incarceration, he had discharged his original sentence and was no longer subject to the sentence for his crime . He then began serving his term of supervised release and then "extended supervised release." We know this because Petitioner's period of extended supervised release could only begin "upon the expiration of any period of probation, the expiration of any sentence of incarceration or the expiration of any period of parole supervision imposed or required of the person so convicted, whichever expires later." W. Va. Code § 62-12-26(d). This Court has previously described incarceration due to a violation of terms and conditions of extended supervised release as a "sanction." See Syllabus Point 7, State v. Hargus , 232 W. Va. 735, 753 S.E.2d 893 (2013). Therefore, because Petitioner had discharged the sentence for his crime, his reincarceration was clearly a sanction for failing to comply with the terms and conditions imposed upon him by the circuit court as a part of his extended supervised release.
The United States Court of Appeals for the Fourth Circuit has discussed, in the context of a term of supervised release imposed as part of a conviction for a federal offense, the distinction between the revocation of such supervised release and a criminal conviction, holding:
[S]upervised release revocation proceedings are ... not criminal proceedings, and a determination that a person violated the terms of supervised release does not amount to a conviction for a criminal offense. See
United States v. Hill , 48 F.3d 228, 232 (7th Cir. 1995) ("The violation of a condition of supervised release is not a crime as such, but it is a breach of trust , and a ground for revocation of supervised release." (citation and internal quotation marks omitted)).
....
Moreover, "Congress intended supervised release to assist individuals in their transition to community life. Supervised release fulfills rehabilitative ends, distinct from those served by incarceration ." United States v. Johnson , 529 U.S. 53, 59, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000). If the goals of supervised release are to be met, it is critical that the defendant cooperate with his probation officer and comply with the conditions of supervised release....
United States v. Riley, 920 F.3d 200, 208 (4th Cir.), cert. denied, ––– U.S. ––––, 140 S. Ct. 391, 205 L.Ed.2d 235 (2019) (Internal citations omitted) (Emphasis added). Courts are given broad discretion as to how to obtain compliance from offenders who violate the terms and conditions of their extended supervised release. Courts "may" modify, terminate and revoke periods of extended supervised release. W. Va. Code § 62-12-26(h). Further, when a defendant is originally sentenced for the underlying crime, the imposition of a term of supervised release or extended supervised release does not impose or assume a term of incarceration. The circuit court does not presume that individuals placed on supervised release or extended supervised release will either violate the terms of their release or be incarcerated as a result of such violation. In this case, the circuit court imposed upon Petitioner a "determinate term of ten (10) years" of incarceration for his second violation of the terms of his extended supervised release. When it did so, the circuit court did not sentence Petitioner for his crimes. Indeed, that sentence of incarceration had been imposed by the circuit court years earlier and fulfilled by Petitioner prior to the date he began serving his original term of supervised release. Instead, it imposed a sanction for Petitioner's failure to comply, for a second time, with the terms and conditions of his term of supervised release.
In Gregory v. West Virginia Div. of Corrections , No. 11-1654, 2013 WL 500378 (W. Va. Feb. 11, 2013) (memorandum decision), this Court, in discussing similar concerns relating to defendants who violate terms of parole, found that: "[t]he parole supervision regulations, which petitioner agreed to abide by, were terms of mercy which allowed him to be released on parole. The regulations themselves did not disadvantage petitioner, his violation of those regulations caused his parole revocation and reimprisonment ." Id. at *13 (emphasis added). Like the defendant in Gregory , the Petitioner is serving a sanction for violating the "terms of mercy" which allowed him to be released on extended supervised release.
Study after study has shown that sex offenders have one of the highest likelihoods of reoffending once they are released from custody. See Hensler v. Cross , 210 W. Va. 530, 536, 558 S.E.2d 330, 336 (2001) ("We are aware that sex offenders are significantly more likely than other repeat offenders to reoffend with sex crimes or other violent crimes and the tendency persists over time."). I believe that DCR correctly summarized the role of extended supervised release as "a long-term monitoring mechanism to ensure the offender's reintegration into society" and the parole statute as one that "rewards rehabilitative efforts and good behavior by changing the custodial arrangement from one of segregation from society to reintegration into society under supervision ... prior to the full service of the mandatory incarceration period." This statute does not contemplate placing individuals who violate supervised release on parole. Petitioner served his original prison sentence. He was then sanctioned twice by the circuit court for failing to comply with the terms of his extended supervision. He clearly has not been rehabilitated, which is the cornerstone of our parole process. In fact, it makes no sense to reward a person who repeatedly cannot comply with the terms of extended supervised release by permitting them to be eligible for parole.
As the Riley court stated, "parole and supervised release are not just analogous, but virtually indistinguishable." Riley , 920 F.3d at 206. They serve similar purposes. Parole involves the early release of an inmate from incarceration, with continued supervision to ensure his or her compliance with probationary terms . Supervised release involves the release of an inmate who has completed his or her term of incarceration, with continued supervision to ensure his or her compliance with probationary terms . In light of this fact, it defies logic for a defendant to have his or her supervised release revoked and be incarcerated for violating the terms of such release, and then be placed on parole and released on terms similar to or identical to the terms he or she violated during their term of supervised release. This essentially says, "let's put this inmate back in jail for refusing to obey the conditions of his supervised release but let him out early on parole subject to the same conditions." Presumably, the judge who holds the supervised release revocation hearing and revokes a defendant's supervised release, imposes a sanction for such violation designed to accomplish the rehabilitative goals of the supervised release. Again, regardless of the semantics used, whether it is called a "sentence," a "punishment" or a "term of incarceration," it constitutes a "sanction" as argued by the DCR. Accordingly, I disagree that Petitioner in this case, having had his supervised release twice revoked, is eligible for parole while incarcerated for such supervised release violations.
Good Time and Senate Bill 713
Much like its argument as to the inapplicability of parole, DCR argues that Petitioner was not entitled to receive the benefit of good time served because he was serving a "sanction" for the violation of the terms and conditions of his extended supervised release, rather than a sentence. I agree. This interpretation was based upon the version of West Virginia Code § 15A-4-17(a) in effect just prior to April 30, 2021, which read as follows:
All current and future adult inmates sentenced to a felony and, placed in the custody of the division, except those committed pursuant to § 25-4-1 et seq. of this code, shall be granted commutation from their sentences for good conduct in accordance with this section: Provided, That nothing in this section shall be considered to recalculate the "good time" of inmates currently serving a sentence or of giving back good time to inmates who have previously lost good time earned for a disciplinary violation, except for those inmates currently serving a sentence for a misdemeanor.
W. Va. Code § 15A-4-17(a) (2018) (Emphasis added). Again, as was discussed in Riley , "a determination that a person violated the terms of supervised release does not amount to a conviction for a criminal offense." Riley , 920 F.3d at 208. Applying this version of the statute to the present case, as Petitioner argues should apply, the defendant was not incarcerated for his "sentence to a felony" when the DCR denied application of good time served reductions. He had already fulfilled that sentence. Indeed, had he complied with the terms of his supervised release, he would not have been reincarcerated at all. I agree with the DCR that the statute does not permit application of good time served credit while an inmate is incarcerated for violating the terms of his or her supervised release or extended supervised release.
During the Regular Session of the 2021 Legislative Session, the West Virginia Legislature amended this statute and included language making it clear that individuals placed in the custody of the Commissioner of the Division of Corrections and Rehabilitation pursuant to W. Va. Code § 62-12-26 are not eligible for commutation of their sentences for good conduct, which is precisely the position DCR had previously taken in Policy Directive 151.06.
The current version of W. Va. Code § 15A-4-17(a), which became effective on April 30, 2021 reads as follows:
All adult inmates placed in the custody of the Commissioner of the Division of Corrections and Rehabilitation pursuant to a term of court-ordered incarceration for a misdemeanor or felony, except those committed pursuant to § 25-4-1 et seq. and § 62-12-26 of this code , shall be granted commutation from their sentences for good conduct in accordance with this section: Provided , That nothing in this section shall
be considered to recalculate the "good time" of inmates currently serving a sentence or of giving back good time to inmates who have previously lost good time earned for a disciplinary violation: Provided, however , That as of the effective date of the amendments to this section enacted during the regular session of the Legislature, 2021, an inmate who had good time calculated into his or her release date prior to October 21, 2020, is entitled to the benefit of the good time awarded or earned before that date, unless the good time was lost due to a disciplinary violation.
W. Va. Code § 15A-4-17(a) (2021).
The majority has found that the above-quoted language of West Virginia Code § 15A-4-17(a) adopted by the Legislature in 2021 may not be applied to the Petitioner in this case because it would result in an unconstitutional ex post facto application of the statute. Therefore, the majority concludes "that S.B. 713, West Virginia Code § 15A-4-17, as amended, may not be applied to petitioner, whose underlying offense was committed in 2010, to preclude him from being granted commutation from his sentence for good conduct in accordance with that statute." For the reasons stated above, I don't believe the pre-2021 version of the statute would allow application of good time served in Petitioner's case. Likewise, the newly revised 2021 version expressly precludes application of good time served due to the fact that Petitioner is serving a term of incarceration for violating the terms of his extended supervised release imposed pursuant to W. Va. Code § 62-12-26. Therefore, I do not believe the majority's discussion of the ex post facto application of S.B. 713 is relevant to the present case.
Because I do not think the Court is required, under these facts, to make a determination as to whether application of S.B. 713 is barred by the prohibition of ex post facto principles, I would leave such determination to another case and another day. However, I do not think the question of ex post facto application is as clear-cut as the majority has determined.
When the constitutionality of a statute is questioned every reasonable construction of the statute must be resorted to by a court in order to sustain constitutionality, and any doubt must be resolved in favor of the constitutionality of the legislative enactment. Point 3, Syllabus, Willis v. O'Brien, 151 W.Va. 628 [ (1967)]. Syllabus Point 1, State ex rel. Haden v. Calco Awning & Window Corp., 153 W.Va. 524, 170 S.E.2d 362 (1969). Syllabus Point 3, Donley v. Bracken, 192 W.Va. 383, 452 S.E.2d 699 (1994).
State ex rel. Carper v. W. Va. Parole Bd. , 203 W. Va. 583, 586, 509 S.E.2d 864, 867 (1998).
In Carper , this Court held that statutory changes that increased the period of time between parole hearings for prisoners serving life sentences "may be applied retroactively to prisoners whose relevant offenses occurred prior to the effective date of the statutory amendment" without violating the constitutional ex post facto protections of the West Virginia Constitution. Id. , 203 W. Va. at 590, 509 S.E.2d at 871. Moreover, the United States Supreme Court held, in California Dept. of Corrections v. Morales , 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995), that:
Respondent ... urges us to hold that the Ex Post Facto Clause forbids any legislative change that has any conceivable risk of affecting a prisoner's punishment.... Our cases have never accepted this expansive view of the Ex Post Facto Clause, and we will not endorse it here.
....
Indeed, contrary to the approach advocated by respondent, we have long held that the question of what legislative adjustments "will be held to be of sufficient moment to transgress the constitutional prohibition" must be a matter of "degree." In evaluating the constitutionality of the 1981 amendment, we must determine whether it produces a sufficient risk of increasing the measure of punishment attached to the covered crimes. We have previously declined to articulate a single "formula" for identifying those legislative changes that have a sufficient effect on substantive crimes or punishments to fall within the constitutional prohibition, and we have no occasion to do so here.
Id. at 508-9 (internal citations omitted). While the parties to this action filed supplemental briefs following the passage by the Legislature and approval by the Governor of S.B. 713, the question of its constitutionality under ex post facto principles, and the degree to which it may affect defendants, has not been thoroughly addressed by the parties or reviewed by this Court. Moreover, because I do not believe such determination would change the result in this matter, I believe it is unnecessary for this Court to make such determination at this time.
Interestingly, the revisions to W. Va. Code § 15A-4-17 during the 2021 Legislative Session also made one other significant modification to this section, by adding "or supervised release under § 62-12-26 of this code" to subsection (g), which now states:
Each inmate, upon his or her commitment to, and being placed into the custody of, the commissioner, or upon his or her return to custody as the result of violation of parole under § 62-12-19 of this code, or supervised release under § 62-12-26 of this code shall be given a statement setting forth the term or length of his or her sentence or sentences and the time of his or her minimum discharge computed according to this section.
W. Va. Code § 15A-4-17(g) (2021) (emphasis added).
The addition of the term "supervised release" to this statute certainly implies, as I believe to be the case, that prior to the 2021 revisions the good time served provisions did not apply to inmates returned to incarceration for violations of supervised release. When reading a statute, what the Legislature chose not to say is often as important as what the Legislature chose to say. "Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted." Banker v. Banker , 196 W. Va. 535, 547, 474 S.E.2d 465, 477 (1996). Moreover, when the Legislature changes a statute, we must assume that this change has meaning. As we have held for more that ninety years, "[t]he Legislature must be presumed to know the language employed in former acts, and, if in a subsequent statute on the same subject it uses different language in the same connection, the court must presume that a change in the law was intended." Syl. Pt. 2, Hall v. Baylous, 109 W.Va. 1, 153 S.E. 293 (1930).
This new language above appears to be added merely to provide a mechanism for calculating good time served in those limited instances in which the Legislature allowed good time served credits previously calculated prior to October 21, 2020, to be grandfathered in for those inmates. If, as the majority finds, the 2021 changes to the statute are inapplicable to Petitioner, this change would also be inapplicable to him.
As stated above, I believe a person incarcerated for violating conditions of his or her supervised release is no longer serving the original sentence but is instead being sanctioned for failing to comply with the court-ordered conditions of supervised release. Therefore, neither the parole statute, nor the good time statute as it existed prior to 2021, permit Petitioner to receive good time served or to be eligible for parole during his period of incarceration for violating his supervised release or extended supervised release. Following the passage of S.B. 713, it is clear that good time reductions are inapplicable to Petitioner because his extended supervised release was imposed pursuant to W. Va. Code § 62-12-26, and the version of W. Va. Code § 15A-4-17 adopted during the 2021 Legislative Session expressly prohibits such application. The Constitutional protections against ex post facto application is not implicated where, under a proper reading of both the pre-2021 good time served statute and the revised version, Petitioner was not eligible to avail himself of the parole or good time provisions in our law. Indeed, far from violating Petitioner's rights, the Legislature acted with compassion when it allowed Petitioner to benefit from DCR's mistaken allocation of good time as of October 21, 2020. W. Va. Code § 15A-4-17(a).
For these reasons, I respectfully dissent from the majority's opinion. I am authorized to state that Chief Justice Jenkins joins me in this dissenting opinion.