Adkins v. Bordenkircher, 14626

• Court: Supreme Court of West Virginia
• Citation: 262 S.E.2d 885,164 W.Va. 292
• Decision Date: 12 February 1980
• Docket Number: No. 14626,14626
• Parties: Mancel D. ADKINS et al. v. Donald E. BORDENKIRCHER, Superintendent, West Virginia Penitentiary, as successor to Richard Mohn.

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262 S.E.2d 885 164 W.Va. 292 Mancel D. ADKINS et al.
v.
Donald E. BORDENKIRCHER, Superintendent, West Virginia
Penitentiary, as successor to Richard Mohn. No. 14626. Supreme Court of Appeals of West Virginia. Feb. 12, 1980.
Rehearing Denied March 27, 1980.

Syllabus by the Court

1. Under 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.

2. In order to avoid Ex post facto principles, W.Va.Code, 28-5-28 (1977), must be construed to apply to those persons who committed offenses after May 1, 1978, and those individuals presently incarcerated in State penal institutions for crimes committed[164 W.Va. 293] prior to May 1, 1978, are entitled to good time credit as calculated under W.Va.Code, 28-5-27 (1931).

Bachmann, Hess, Bachmann & Garden and George E. McLaughlin, Wheeling, for petitioners.

Chauncey H. Browning, Atty. Gen., Gregory W. Bailey, Asst. Atty. Gen., Charleston, for respondent.

MILLER, Justice:

The petitioners in these original habeas corpus proceedings are 16 inmates of the West Virginia State Penitentiary at Moundsville. ¹ They contend that the new "good time" statute, W.Va.Code, 28-5-28 (1977), has been applied to their sentences in an Ex post facto manner, in contravention of Article I, Section 10 of the United States Constitution and Article III, Section 4 of the West Virginia Constitution. ² We agree and award the writs as moulded.

The petitioners were incarcerated on or after May 1, 1978, the date W.Va.Code,

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28-5-28, was first implemented. ³ It is undisputed that petitioners were sentenced [164 W.Va. 294] and thus committed the underlying crimes before May 1, 1978.

It is also undisputed that under the former good time statute, as applied, a prison inmate could earn more good time credit than under the present good time statute, and therefore was eligible for earlier release than a similarly situated inmate classified under the new system.

We did not engage in any detailed discussion of or comparison between the amount of good time that could be obtained under the old and new statutes in Woodring v. Whyte, W.Va., 242 S.E.2d 238 (1978). Following our decision in Woodring, the Governor, by Executive Order 8-78, established that the new good time statute should be implemented as of May 1, 1978. ⁴ Neither party appears to question the Governor's right to establish May 1, 1978, as the effective date for the implementation of the new good time credit statute, W.Va.Code, 28-5-28, and we therefore accept it as the implementation date.

What is challenged is that portion of the Executive Order that sets the inmate's date of entry into the penal system, viz., May 1, 1978, as controlling on whether he is entitled to the benefits of the old or the new good time statute. ⁵

[164 W.Va. 295] Simply stated, the petitioners' argument is that with the effective date of implementation of the new good time statute set as of May 1, 1978, then under Ex post facto law principles the old good time credit statute must be operative as to all persons who committed offenses prior to May 1, 1978. This result must obtain, according to petitioners, because under 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. They cite the following from Ex parte Medley, 134 U.S. 160, 171, 10 S.Ct. 384, 387, 33 L.Ed. 835, 840 (1890):

"(An Ex post facto law is) any law which was passed after the commission of the offense for which the party is being tried . . . when it inflicts a greater punishment than the law annexed to the crime at the time it was committed; (citations omitted) or which alters the situation of the accused to his disadvantage; and . . . no one can be criminally punished in this country except according to a law prescribed for his government by the sovereign authority before the imputed offense was committed . . . ."

Medley involved a statute enacted after Medley had committed and was sentenced to death for the underlying offense of murder. He was subjected to the new statute while in prison awaiting execution. Unlike the old statute, this new law mandated solitary confinement for an inmate sentenced to capital punishment. The old law also had vested in the court the power to decide on what date the prisoner would be

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executed, whereas the new law lodged this power in the warden and ensured that the inmate would not be notified of the warden's decision in advance.

Reasoning that both solitary confinement and the anxiety caused by uncertainty as to the date of execution were harsh measures to which Medley was not subject under the law as it stood at the time he committed the underlying offense, the Court held that the application[164 W.Va. 296] of the new statute to him violated the Ex Post Facto Clause.

Parole eligibility is another facet of penal law scrutinized under the Ex Post Facto Clause. In Warden v. Marrero, 417 U.S. 653, 662-63, 94 S.Ct. 2532, 2538, 41 L.Ed.2d 383, 392 (1974), the Supreme Court strongly implied that a law which altered the conditions of parole eligibility to the detriment of an inmate would contravene the Ex post facto prohibition:

"(O)nly an unusual prisoner could be expected to think that he was not suffering a penalty when he was denied eligibility for parole. See United States v. Ross, 464 F.2d 376, 379 (CA 2 1972); United States v. DeSimone, 468 F.2d 1196, 1199 (CA 2 1972). For the confined prisoner, parole even with its legal constraints is a long step toward regaining lost freedom. An observation made in somewhat different context is apt:

" 'It may be "legislative grace" for Congress to provide for parole but when it expressly removes all hope of parole upon conviction and sentence for certain offences, . . . this is in the nature of an additional penalty.' Durant v. United States, 410 F.2d 689, 691 (CA 5 1969).

"(A) repealer of parole eligibility previously available to imprisoned offenders would clearly present the serious question under the Ex post facto clause . . . of whether it imposed a 'greater or more severe Punishment than was prescribed...