Echard v. Holland

• Decision Date: 19 November 1986
• Docket Number: No. 17004,17004
• Court: West Virginia Supreme Court
• Parties: Carl O'Dell ECHARD v. Manfred G. HOLLAND, Warden, West Virginia Penitentiary and John Massie, Records Clerk, West Virginia Penitentiary.

Page 51

351 S.E.2d 51

177 W.Va. 138

Carl O'Dell ECHARD v. Manfred G. HOLLAND, Warden, West Virginia Penitentiary and John Massie, Records Clerk, West Virginia Penitentiary.

No. 17004.

Supreme Court of Appeals of

West Virginia.

Nov. 19, 1986.

Syllabus by the Court

1. "In a habeas corpus proceeding where prisoners allege but do not prove that they are being illegally held, relief will be denied." Syl. pt. 1, Woods v. Whyte, 162 W.Va. 157, 247 S.E.2d 830 (1978).

2. "An inmate under two or more consecutive sentences shall be allowed good time as if the several sentences, when the maximum terms thereof are added together, were all one sentence." W.Va.Code § 28-5-27(e) (Cum.Supp.1986).

3. "A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect." Syl. pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951).

4. "It is well established that the word 'shall,' in the absence of language in the statute showing a contrary intent on the part of the Legislature, should be afforded a mandatory connotation." Syl. pt. 1, Nelson v. West Virginia Public Employees Ins. Bd., --- W.Va. ----, 300 S.E.2d 86 (1982).

Renner, Everett, Bush & Powell, Richard A. Bush, Parkersburg, for appellant.

Harry G. Deitzler, PA, Parkersburg, for appellee.

McGRAW, Justice:

On February 15, 1985, the appellant, Carl O'Dell Echard, a prisoner at the West Virginia Penitentiary, filed a pro se petition in the Circuit Court of Marshall County seeking the issuance of a peremptory writ of mandamus against the appellees, Manfred G. Holland, the warden at the penitentiary, and John Massie, the records clerk at the penitentiary. In his petition, the appellant alleged that he was being illegally detained as a result of an incorrect credit of "good time" by the appellees in calculating the discharge date of his sentences. The appellant argued that a proper credit of good time would result in the immediate discharge of his sentences.

The circuit court treated the appellant's petition as one for habeas corpus, rather than mandamus, and issued a writ of habeas corpus ad subjiciendum on March 4, 1985, which directed the appellees to show cause why the appellant was being detained. On March 22, 1985, the circuit court heard arguments from the parties concerning the good time credit earned by the appellant and the manner in which it should be applied to his sentences. At the hearing, the circuit court judge held that the discharge date calculated by the records clerk, May 5, 1989, was correct, and that the appellant was not being illegally detained. The writ of habeas corpus ad subjiciendum was then vacated by the circuit court, and the appellant thereupon appealed to this Court seeking a reversal of the circuit court's ruling.

I

On January 27, 1978, the appellant was arrested on an armed robbery charge in Wood County. Following a jury trial in the Circuit Court of Wood County, the appellant was found guilty of armed robbery on May 10, 1978. Prior to sentencing on this conviction, the appellant was also charged in Wood County as an habitual criminal on the basis that he had two prior felony convictions. An additional jury trial in the Circuit Court of Wood County resulted in a finding that the appellant had been convicted on two felony charges prior to his conviction for armed robbery. Thereafter, on June 28, 1978, the Circuit Court of Wood County imposed a life sentence on the appellant to be served in the West Virginia Penitentiary. W.Va.Code § 61-11-18 (1984 Replacement Vol.). ¹ The effective date of the sentence was May 10, 1978, the date of the armed robbery conviction, but execution of the sentence was stayed until October 31, 1978, to allow the appellant time to appeal his conviction and life sentence as a recidivist. W.Va.Code § 62-7-1 (1984 Replacement Vol.) ² The appellant was remanded to the custody of the sheriff of Wood County until expiration of the stay.

While awaiting his transfer to the penitentiary, the appellant was arrested on July 5, 1978, pursuant to a warrant issued in Ritchie County charging him with first degree murder. On March 24, 1980, the appellant pleaded guilty to the lesser included offense of second degree murder, and an order was entered by the Circuit Court of Ritchie County sentencing him to confinement in the West Virginia Penitentiary for a term of not less than five nor more than eighteen years to run concurrently with the Wood County life sentence. Counsel for the appellant thereupon entered a motion requesting that credit be given to the appellant for time served by him from July 5, 1978, the date of his arrest on the Ritchie County murder charge, to March 24, 1980, the date that he pleaded guilty and was sentenced. The Circuit Court of Ritchie County overruled this motion and gave the appellant presentence credit for only 119 days for the period from July 5, 1978, to October 31, 1978, the expiration date of the stay of execution on the Wood County life sentence. The appellant's counsel excepted to the Ritchie County sentencing order as it related to presentence credit.

The appellant thereupon began serving the Ritchie County sentence concurrently with the life sentence previously imposed by the Circuit Court of Wood County. However, on July 29, 1981, this Court, in State v. Echard, --- W.Va. ----, 280 S.E.2d 724 (1981), reversed the appellant's Wood County armed robbery conviction and life sentence as a recidivist and remanded the case for a new trial. The appellant was convicted on retrial of unarmed robbery. He was once again charged as a recidivist, but a plea bargain agreement was entered whereby the appellant admitted to having only one prior felony conviction, instead of two, and the State agreed to cease further prosecution on the recidivist charge.

An order was then entered by the Circuit Court of Wood County on March 30, 1982, sentencing the appellant to confinement in the penitentiary on the unarmed robbery and recidivist convictions for a period of not less than five years nor more than twenty-three years to be served consecutively with the Ritchie County sentence. W.Va.Code § 61-11-18. ³ A motion by the appellant's counsel to have the sentence imposed concurrently with the Ritchie County sentence was overruled. The sentencing order entered by the Circuit Court of Wood County did, however, grant the appellant presentence credit of 1,487 days, which represents time served by him under the original Wood County armed robbery charge and conviction until the new sentence was entered on March 30, 1982.

II

West Virginia Code § 28-5-27 (1980 Replacement Vol.) was the good time statute applicable to the appellant at the time of his incarceration in the penitentiary on the Wood County and Ritchie County convictions. However, in 1984, the Legislature passed a new good time statute, West Virginia Code § 28-5-27 (Cum.Supp.1986), which applies retroactively to all inmates convicted of crimes prior to its effective date. W.Va.Code § 28-5-27(j). ⁴ The new statute provides that all inmates, except those serving life sentences, shall be granted one day of good time for each day incarcerated. W.Va.Code § 28-5-27(c). ⁵ Although the new statute voided good time calculations made under prior statues, "warden's good time" and "overtime good time" earned pursuant to West Virginia Code § 28-5-27a (1980 Replacement Vol.) ⁶ and West Virginia Code § 28-5-27b (1980 Replacement Vol.) ⁷ were preserved. W.Va.Code § 28-5-27(j). ⁸ There is no dispute that the appellant is entitled to credit for the "warden's good time" and the "overtime good time" earned by him prior to passage of new West Virginia Code § 28-5-27. Under West Virginia Code § 28-5-27a the appellant earned "warden's good time" totalling four years, eight months and twenty days. Under West Virginia Code § 28-5-27b the appellant earned "overtime good time" totalling nine months and twenty days.

In computing the appellant's minimum discharge date under the new statute, the records clerk established July 5, 1978, as the effective date of the sentence imposed by the Circuit Court of Ritchie County of not less than five nor more than eighteen years. Although the sentencing order provided that the appellant was entitled to only 119 days presentence credit on the Ritchie County sentence, the records clerk granted the appellant credit for all time served by him from July 5, 1978, to March 24, 1980, the date of his sentencing on the Ritchie County conviction. The records clerk then reduced the maximum term of the indeterminate Ritchie County sentence by one half to fix the "discharge date" of that sentence as July 5, 1987. Pursuant to the sentencing order of the Circuit Court of Wood County, the records clerk next subtracted 1,487 days credited to the appellant for time served by him on the original Wood County charge and conviction. This established May 18, 1983, as the effective date of the Wood County sentence and the point from which to calculate the appellant's minimum discharge date. The records clerk then reduced the maximum term of the indeterminate Wood County sentence by one half and further subtracted therefrom the "warden's good time" and "overtime good time" previously earned by the appellant under prior West Virginia Code §§ 28-5-27a and 28-5-27b. These computations resulted in a minimum discharge date on the appellant's sentences of May 5, 1989.

The appellant maintains that the records clerk improperly applied the "warden's good time" and the "overtime good time" in computing his minimum discharge date. He argues that the "warden's good time" and "overtime good time" earned by him while serving the Ritchie County sentence concurrently with the original Wood County life sentence should have been reduced once from the Wood County sentence, as the records clerk has done, and once from the Ritchie County sentence, which the records...