Painter v. Ballard

• Decision Date: 08 June 2016
• Docket Number: No. 14–1266,14–1266
• Court: West Virginia Supreme Court
• Parties: Wade Painter, Petitioner Below, Petitioner v. David Ballard, Warden, Respondent Below, Respondent

237 W.Va. 502

788 S.E.2d 30

Wade Painter, Petitioner Below, Petitioner

v.David Ballard, Warden, Respondent Below, Respondent

No. 14–1266

Supreme Court of Appeals of West Virginia.

Submitted: February 10, 2016

Filed: June 8, 2016

George Castelle, Esq., Kanawha County Public Defender Office, Charleston, West Virginia, Counsel for the Petitioner.

Patrick Morrisey, Esq., Attorney General, John H. Boothroyd, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for the Respondent.

Benjamin

, Justice:

Petitioner Wade Painter, an inmate at Mount Olive Correctional Complex (“Mount Olive”), challenged by writ of mandamus in the Circuit Court of Kanawha County (“Kanawha circuit court”) deductions made by respondent David Ballard, Warden of Mount Olive, from Mr. Painter's inmate account to pay court-ordered restitution. Mr. Painter asserts that West Virginia law prohibits the Warden from deducting funds from Mr. Painter's inmate account that were gifted to him by family and friends. In an October 29, 2014, order, the Kanawha circuit court dismissed the petitioner's writ of mandamus, concluding that the Warden's deductions complied with the law, and further that the Kanawha circuit court was not the proper venue for the action and that the court did not have jurisdiction over the matter.

We conclude that funds gifted to an inmate by family and friends may be subject to deduction by the Warden to pay court-ordered restitution, and to the extent the disposition adopted by the circuit court corresponds with our decision on this issue, we now affirm. However, we disagree with the conclusion that the Kanawha circuit court was not the proper venue for the action and that it lacked jurisdiction, and we reverse the court's order on those two points.

I. FACTUAL AND PROCEDURAL BACKGROUND

A jury convicted Mr. Painter of daytime burglary, grand larceny, daytime burglary with breaking, petit larceny, two counts of murder in the first degree, and possession of a stolen vehicle. By order entered November 27, 2007, (“sentencing order”) the Circuit Court of Berkeley County (“Berkeley circuit court”), sentenced him to an indeterminate sentence of one to ten years for daytime burglary, an indeterminate sentence of one to ten years for grand larceny, an indeterminate sentence of one to fifteen years for daytime burglary with breaking, a determinate sentence of one year for petit larceny, two determinate sentences of life without mercy for two murders, and an indeterminate sentence of one to five years for possession of a stolen vehicle. The court ordered that the sentences be served consecutively. The Berkeley circuit court also ordered that the petitioner pay restitution¹ as follows:

It is further ORDERED that the Defendant shall pay restitution through the Clerk of this Court in the amount of $4472.00 to the victim Deborah White ... and said restitution shall be paid from monies contained within any prison account or any assets of the defendant .

It is further ORDERED that the Defendnat [sic] shall pay restitution through the Clerk of this Court in the amount of $2520.00 to the victim Carl Norberg ... and saidrestitution shall be paid from monies contained within any prison account or any assets of the defendant .

It is further ORDERED that the Defendant shall pay restitution through the Clerk of this Court in the amount of $12,000.00 to the Crime Victims's [sic] Fund, 1900 Kanawha Blvd. East, Room W–334, Charleston, West Virginia and said restitution shall be paid from monies contained within any prison account or any assets of the defendant .

(Emphasis added).²

Mr. Painter commenced serving his prison sentence at Mount Olive in Fayette County. Thereafter, he was provided with a Notice of Withholding by the West Virginia Division of Corrections (“DOC”). In addition to listing the amounts owed in restitution and to whom those amounts were owed, the Notice of Withholding provided:

Commencing on or about the 21 day of October, 2008 deductions from your account will commence. Deductions will be based upon 40% of your earnings. Earnings are defined as all sums of money paid to an inmate on account of any work assignment, or other allowable means by which an inmate may be compensated for work performed or goods sold, including earnings from work in correctional industries and indigent pay. Earnings shall also include 40% of the proceeds from any arts and crafts sale. Earnings shall further include all sums of money received by the inmate on account of a settlement of a lawsuit, civil judgment, or other lawful process, inheritance, bequest, gift, except funds provided the inmate by family or friends. Earnings shall not include sums deducted for mandatory savings.

You may dispute these charges by filing a grievance pursuant to Policy Directive 335.00. You should, however, be aware that the Division of Corrections cannot alter or reduce obligations imposed by outside authorities.

(Emphasis added).

By grievance dated March 13, 2014, Mr. Painter challenged the DOC's deductions from his account. Specifically, he argued that pursuant to W.Va. Code § 25–1–3c(c)(1) (2005)

and the DOC's own rule, Policy Directive No. 111.06(III) (2006), funds provided to him by friends and family should not be subject to deductions for restitution payments. W.Va. Code § 25–1–3c(c)(1) provides:

(c)(1) The warden shall deduct from the earnings of each inmate, legitimate court-ordered financial obligations. The warden shall also deduct child support payments from the earnings of each inmate who has a court-ordered financial obligation. The Commissioner of the Division of Corrections shall develop a policy that outlines the formula for the distribution of the offender's income and the formula shall include a percentage deduction, not to exceed forty percent in the aggregate, for any court ordered victim restitution, court fees and child support obligations owed under a support order, including an administrative fee not to exceed one dollar, consistent with the provisions of subsection c, section four hundred six [§ 48–14–406], article fourteen, chapter forty-eight of this code, to support the Division of Correction's administration of this financial service.

(Emphasis added). Policy Directive 111.06, which was promulgated pursuant to W.Va. Code § 25–1–3c(c)(1)

,³ provides:

Earnings: All sums of money paid to an inmate on account of any work assignment, or other allowable means by which an inmate may be compensated for work performed or goods sold, including earnings from work in correctional industries and indigent pay. Earnings shall also include 40% of the proceeds from any arts and crafts sale. Earnings shall further include all sums of money received by the inmate on account of a settlement of a lawsuit; civil judgment; or other lawful process, inheritance, bequest, gift, except funds provided the inmate by family or friends . Earnings shall not include sums deducted for mandatory savings.

(Emphasis added).

The parties do not dispute that the grievance was denied and that Mr. Painter ultimately exhausted his administrative remedies.⁴

Mr. Painter filed a petition for writ of mandamus, pro se , in the Circuit Court of Fayette County (“Fayette circuit court”). He repeated the argument made in his grievance. The Fayette circuit court entered an order on September 10, 2014, dismissing the petition for improper venue. The Fayette circuit court determined that

[i]f the Petitioner wishes to challenge the manner in which the [DOC] carries out the specific orders of the Circuit Courts of West Virginia, or the application of state wide correctional polices, then venue would be proper in Kanawha County Circuit Court. Alternatively, if the Petitioner wishes to seek a clarification of the language used in the Sentencing Order , then venue would be proper in the Circuit Court of Berkeley County. Regardless of the Petitioner's choice, this [c]ourt is of the opinion that venue for the Petition, as molded, is improper before the Circuit Court of Fayette County, West Virginia.

Thereafter, Mr. Painter filed his petition for writ of mandamus, pro se , in the Kanawha circuit court, again arguing that funds provided to him by friends and family should not be subject to deductions for restitution payments. The Warden filed a motion requesting that the court dismiss the petition. The court, by order entered October 29, 2014, granted the Warden's motion to dismiss on the following two grounds:

1. The Circuit Court of Berkeley County, West Virginia, has ordered that restitution in State v. Painter , 06–F–24, be paid from monies contained within any prison account or any assets of the Defendant/Petitioner. In as much as the Petitioner seeks that this [c]ourt to [sic] set aside or to [sic] interpret the intent of another Circuit Court's Sentencing Order regarding restitution, venue and jurisdiction is improper and dismissal is required pursuant to West Virginia Rules of Civil Procedure, 12(b)(1) and (3)

.⁵

2. West Virginia Code, § 25–1–3c does not limit the authority of a Circuit Court to order restitution and have such restitution collected from an inmate by the [DOC]. A Circuit Court's order of restitution may include all sources of the Defendant/Petitioner's assets and is not limited to those sources of a prisoner's “earnings” as defined by the [DOC] Policy Directive 111.06. Dismissal is required pursuant to West Virginia Rules of Civil Procedure, 12(b)(6).⁶

(Footnotes added).

Mr. Painter now appeals to this Court the Kanawha circuit court's October 29, 2014, order dismissing his petition for writ of mandamus. He filed a brief with this Court pro se , the Warden responded, and Mr. Painter filed a reply brief pro se . Upon placing the case on the argument docket, the Court ordered the appointment of counsel to Mr. Painter. Mr. Painter's appointed counsel, on Mr. Painter's behalf, filed a supplemental brief, the Warden responded, and the petitioner, through counsel, replied.

II. STANDARD OF REVIEW

Mr....