State ex rel. Carper v. W. Va. Parole Bd., 25184.

CourtSupreme Court of West Virginia
Citation509 S.E.2d 864,203 W.Va. 583
Decision Date20 November 1998
Docket NumberNo. 25184.,25184.
PartiesSTATE of West Virginia ex rel. George CARPER, Petitioner, v. WEST VIRGINIA PAROLE BOARD, Respondent.

509 S.E.2d 864
203 W.Va.

STATE of West Virginia ex rel. George CARPER, Petitioner,

No. 25184.

Supreme Court of Appeals of West Virginia.

Submitted October 6, 1998.

Decided November 20, 1998.

Dissenting Opinion of Chief Justice Davis December 14, 1998.

509 S.E.2d 866
George Carper, Pro se

Darrell V. McGraw, Jr., Esq., Attorney General, Chad M. Cardinal, Esq., Assistant Attorney General, Charleston, for Respondent.

STARCHER, Justice:

In the instant case, we review the retroactive application of a 1997 statutory amendment authorizing increased periods of time between parole hearings for prisoners serving "life" terms of imprisonment with the possibility of parole. We conclude that this retroactive application does not facially violate the constitutional prohibition against ex post facto laws, if the amendment is narrowly applied on a case-by-case basis, with appropriate safeguards.


Facts and Background

In 1997 the West Virginia Legislature enacted an amendment to our parole law, W.Va.Code, 62-12-13, that allows the respondent

509 S.E.2d 867
West Virginia Board of Parole ("the Board") to decrease the frequency of parole hearings for prisoners who are serving sentences of life imprisonment with the possibility of parole

As amended, W.Va.Code, 62-12-13(a)(5) [1997] (effective July 10, 1997) states in pertinent part:

In the case of a person sentenced to any state correctional center, it shall be the duty of the board, as soon as such person becomes eligible, to consider the advisability of his or her release on parole. If, upon such consideration, parole be denied, the board shall at least once a year reconsider and review the case of every inmate so eligible, which reconsideration and review shall be by at least three members of the board: Provided, however, That the board may reconsider and review parole eligibility any time within three years following the denial of parole of a person serving a life sentence.

(Emphasis added.)

The petitioner George Carper began serving a life with mercy sentence in 1978. On February 11, 1998, the petitioner was denied parole. The Board informed the petitioner that the Board would next review his parole eligibility in 2 years, or February of 2000. The petitioner filed a pro se pleading in this Court challenging the Board's action as violative of constitutional ex post facto provisions. We treated his pleading as a writ of mandamus and made it returnable by the respondent Board.


Standard of Review

"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 [153 S.E.2d 178] [(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).



The petitioner challenges the constitutionality of the Board's application of the above-quoted language from W.Va.Code, 62-12-13(a)(5) [1997] to him, by denying him an annual parole review.1 Treating the petitioner's pro se pleadings with liberality, we determine that the petitioner has stated a claim that the application of the 1997 amendment to the Board's review of his sentence violates ex post facto principles.2

This Court has recognized that parole hearings are a substantial interest subject to legal protection. See Vance v. Holland, 177 W.Va. 607, 355 S.E.2d 396 (1987) (per curiam). Accordingly, legal provisions affecting "parole eligibility [are] ... scrutinized under the Ex Post Facto Clause." Adkins v. Bordenkircher, 164 W.Va. 292, 296, 262 S.E.2d 885, 887 (1980).

In Adkins, we held that prisoners were entitled to have good time credits on their sentences calculated at the rate established by the statute in effect at the time of the commission of a prisoner's offense. We recognized the general rule established in the federal courts that "a superseding law or administrative rule cannot change the conditions of parole eligibility to the detriment of an imprisoned offender without running afoul

509 S.E.2d 868
of the Ex Post Facto Clause." 164 W.Va. at 296-297, 262 S.E.2d at 887 (citations omitted)

In Syllabus Point 1 of Adkins, this Court stated:

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.

In State v. R.H., 166 W.Va. 280, 288-90, 273 S.E.2d 578, 583-84 (1980) this Court recognized the classic United States Supreme Court definition of an ex post facto law as set forth by the United States Supreme Court in Calder v. Bull, 3 U.S. 386, 390, (3 Dall.) 386, 1 L.Ed. 648, 650 (1798):

(1) every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action; (2) every law that aggravates a crime, or makes it greater than it was when committed; (3) every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed; (4) every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the commission of the offense, in order to convict the offender.

We noted in State v. R.H. that the ex post facto prohibition extends to any alteration, even one labeled procedural, "which in relation to the offense or its consequences, alters the situation of a party to his disadvantage." 166 W.Va. at 289, 273 S.E.2d at 584. We further stated that these general observations provide a standard by which the courts are to be guided in their determination of which statutory changes may be applied retroactively to an accused. Just what alterations of procedure will be held to be of sufficient moment to transgress the constitutional prohibition cannot be embraced within a formula or stated in a general proposition. The distinction is one of degree. 166 W.Va. at 290, 273 S.E.2d at 5843

With respect to legal changes that retroactively affect a prisoner's parole eligibility, we stated in Adkins, supra, that:

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. For the confined prisoner, parole—even with its legal
509 S.E.2d 869
constraints—is a long step toward regaining lost freedom.
* * * * * *
"[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 by law at the time of the ... offense.'["]
* * * * * *
In Rodriguez [v. U.S. Parole Comm'n, 594 F.2d 170 (7th Cir.1979) ], the court emphasized that it was immaterial that the imprisoned offender might not have received parole at the time of his eligibility. It was, rather, the right of the prisoner to satisfy eligibility conditions, and thus earn the right to demonstrate fitness for parole, which could not be retroactively affected to the inmate's disadvantage.

Adkins, supra, 164 W.Va. at 296-97, 262 S.E.2d at 887 (citations omitted).

In Akins v. Snow, 922 F.2d 1558 (11th Cir.1991), a federal court of appeals struck down a Georgia parole board rule as violative of ex post facto principles. The rule that allowed the parole board to increase the length of time between parole hearings to 8 years was a change from the annual review that was prescribed by parole board rules in place when the prisoner committed his offense.

In Akins, the federal court stated that a key issue was whether a prisoner who committed an offense when a previous rule was in effect was "deprived of an opportunity for parole that existed prior to the alteration of the parole rules." 922 F.2d at 1562. But see Jones v. Georgia State Bd. of Pardons and Paroles, 59 F.3d 1145, 1149 n. 8 (11th Cir. 1995) (questioning the continued viability of Akins, in light of California Dep't of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995), see infra.)

In Kellogg v. Shoemaker, 46 F.3d 503 (6th Cir.1995), a federal court of appeals found that new and more onerous Ohio parole revocation procedures could not be retroactively applied to prisoners who had committed offenses when other, less onerous revocation procedures were in effect.

Recently, in Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997), the United States Supreme Court applied ex post facto principles to prohibit Florida's retroactive cancellation of early release credits. However, 2 years before deciding Lynce, in California Dep't of Corrections v. Morales, supra, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995), the Supreme Court declined to strike down a California statute that retroactively changed the frequency of parole review for a very limited class of prisoners.

In Morales, the statute allowed the parole board to grant "setoffs" of 3 years (a "setoff" is a term used to describe the time until the next parole review that is given by a parole board when it denies parole to a prisoner) to a small group of prisoners who had been convicted of more than one offense that involved taking a life. These multiple-homicide prisoners had been sentenced under laws requiring an annual parole review.

The Supreme Court in Morales found that the retroactive application of the California...

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