Conner v. Griffith

Decision Date20 September 1977
Docket NumberNo. 13911,13911
CourtWest Virginia Supreme Court
PartiesJames CONNER v. Harry GRIFFITH, Warden, Huttonsville Correctional Center.

Syllabus by the Court

1. The Double Jeopardy Clause in Article III, Section 5 of the West Virginia Constitution, provides immunity from further prosecution where a court having jurisdiction has acquitted the accused. It protects against a second prosecution for the same offense after conviction. It also prohibits multiple punishments for the same offense.

2. The failure to credit on the underlying sentence the time served on parole prior to the revocation of parole constitutes a multiple punishment for the same offense, and is a violation of the Double Jeopardy Clause of the West Virginia Constitution, Article III, Section 5.

James M. Haviland, Charleston, for relator.

Chauncey H. Browning, Jr., Atty. Gen., William D. Highland, Asst. Atty. Gen., Charleston, for respondent.

MILLER, Justice:

In this habeas corpus case we are asked to consider the constitutionality of that portion of W.Va.Code, 62-12-19, which permits the Board of Probation and Parole to reimprison a parole violator without crediting the time served on parole against the original sentence. 1

In 1973, petitioner was convicted of grand larceny and sentenced to the Huttonsville Correctional Center for one to ten years. On February 5, 1975, he was placed on parole. He remained on parole until November, 1976, when he was arrested for parole violation. Petitioner's parole was subsequently revoked and he was returned to Huttonsville to serve the remaining portion of his original sentence without credit for the 21 months served on parole. Petitioner's parole revocation was based on the fact that he had traveled out of State to marry a woman with whom, by the terms of his parole, he was forbidden to associate.

Petitioner contends that the parole board's refusal to credit the time served on parole against his original sentence violates the Double Jeopardy Clause of the West Virginia Constitution, Article III, Section 5. Petitioner asserts that unless the time he served on parole prior to its revocation is credited against his sentence, he will be subjected to serving an additional 21 months beyond the maximum sentence originally imposed. He claims this additional time violates the constitutional prohibition against multiple punishments for the same offense, which is a part of the double jeopardy provision.

The federal Fifth Amendment constitutional guarantee against double jeopardy, made mandatory on the State through the Fourteenth Amendment, has been held to contain three separate constitutional protections and, in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), these were summarized as follows:

"It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." (395 U.S. at 717, 89 S.Ct. at 2076)

As noted in Pearce, the leading case involving the Double Jeopardy Clause as it relates to multiple punishments for the same crime is Ex parte Lange, 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872 (1874), where the Court stated:

"If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offense." (18 Wall. at 168, 85 U.S. at 168)

Under Article III, Section 5 of the West Virginia Constitution, a similar guarantee against double jeopardy exists. Although we have not had occasion to define its full scope, our Double Jeopardy Clause provides immunity from further prosecution where a jury in a court having jurisdiction has acquitted the accused. Ex parte Bornee, 76 W.Va. 360, 85 S.E. 529 (1915). It also protects against a second prosecution for the same offense after conviction. State v. Holland, 149 W.Va. 731, 143 S.E.2d 148 (1965); State v. Kiger, 103 W.Va. 55, 136 S.E. 607 (1927).

It is our view that Article III, Section 5 of the West Virginia Constitution is, at least, coextensive with the three principles set out in North Carolina v. Pearce, supra, and prohibits multiple punishments for the same offense.

The question of whether the failure to credit time served on parole violates our constitutional prohibition against double jeopardy can best be answered by analyzing the nature of parole.

Since the inception of the first parole statute in the State of New York in 1877, 2 the courts have been slow in attempting any extensive inquiry into the constitutional aspects of the parole system. 3

In recent years, increasing judicial attention has been given the parole system on two principal constitutional grounds. The first centers on the procedural due process rights required at the time of a parole revocation. See Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Courts also have considered whether the failure to credit time served on parole against the underlying sentence violates double jeopardy. 4 While some courts have held the constitutional prohibition against double jeopardy applies and thus requires credit for time served on parole, 5 a majority of the courts have declined to apply this constitutional standard. 6

The rule prohibiting credit for time served on parole where there has been a revocation has been sharply criticized. 7 A number of states have solved the problem by enacting statutes which specifically require credit for time served on parole upon its revocation. 8 Such statutes are consistent with the recommendations of the American Law Institute, Model Penal Code § 305.17(1) (1962); 9 National Council on Crime and Delinquency, Standard Probation and Parole Act § 27 (1955); 10 National Advisory Commission on Criminal Justice Standards and Goals, Report on Corrections § 16.15(3) (1973). 11

Morrissey, supra, sought to rationally analyze the nature of parole as it relates not only to the parolee but to its function in society. It eschewed labeling parole as a "privilege", a concept that has in the past retarded any real analysis of the fundamental concepts of parole. 12 Morrissey focused on the fact that parole is a part of the rehabilitative process. It pointed out that not only does the prisoner gain by a reduction in the restraints on his freedom, but society also benefits by a reduction in the cost of his upkeep. However, Morrissey emphasized that a parolee still has substantial restrictions imposed upon his freedom arising from the conditions of his parole.

The nature of the restrictions surrounding a person on parole has been treated at some length in Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963):

"And in fact, as well as in theory, the custody and control of the Parole Board involve significant restraints on petitioner's liberty because of his conviction and sentence, which are in addition to those imposed by the State upon the public generally. Petitioner is confined by the parole order to a particular community, house, and job at the sufferance of his parole officer. He cannot drive a car without permission. He must periodically report to his parole officer, permit the officer to visit his home and job at any time, and follow the officer's advice. He is admonished to keep good company and good hours, work regularly, keep away from undesirable places, and live a clean, honest, and temperate life. Petitioner must not only faithfully obey these restrictions and conditions but he must live in constant fear that a single deviation, however slight, might be enough to result in his being returned to prison . . . " (371 U.S. at 242, 83 S.Ct. at 376)

In Alvarado v. McLaughlin, 486 F.2d 541 (4th Cir. 1973), the following comments were made regarding the nature of parole:

"Parole is not 'a suspension of sentence', Jenkins v. Madigan (7th Cir. 1954) 211 F.2d 904, 906, cert. denied 348 U.S. 842, 75 S.Ct. 63, 99 L.Ed. 664; it does not remove or make invalid the sentence imposed, Marrero v. Warden, supra ((3d Cir.) 483 F.2d 656); it is still 'a form of custody', Padilla v. Lynch (9th Cir. 1968) 398 F.2d 481, 482, and 'is in legal effect imprisonment', Anderson v. Corall (1923) 263 U.S. 193, 196, 44 S.Ct. 43, 68 L.Ed. 247; in summary, it 'is not a release of the prisoner from all disciplinary restraint but is rather merely "an extension of the prison walls"; and the prisoner while on parole remains "in the legal custody and under the control of" the Parole Board,' United States v. Nicholson (4th Cir. 1935) 78 F.2d 468, 469-470, cert. denied 296 U.S. 573, 56 S.Ct. 118, 80 L.Ed. 405." (486 F.2d at 544)

It cannot be denied that a person placed on parole in this State has substantial restraints on his freedom. In addition to the statutory conditions imposed by W.Va.Code, 62-12-17, the Director of the Division of Correction has promulgated eleven other restrictions pursuant to W.Va.Code, 62-13-2(b), many of which do not directly relate to the prevention of criminal activity and any of which, if violated, can result in the revocation of parole. 13

As one commentator has observed, the regulations governing a parolee's conduct require that he "lead a childlike and pastoral life." 14 Others have pointed out that such regulations impinge on human rights and reflect obsolete criminological concepts. 15 One might conclude that they are designed to assure that he will not succeed.

The breach of these administrative regulations constitutes a major ground for parole revocation in this State. For the five-year period ending June 30, 1976, approximately 69 percent of all parole revocations were based upon "technical" violations as distinguished from the more serious felony violations. 16

This Court considered the due process requirements applicable to parole revocation in Dobbs v. Wallace, W.Va., 201 S.E.2d 914 (1974), and...

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