State ex rel. Gillespie v. Kendrick

Decision Date04 April 1980
Docket NumberNo. 14731,14731
Citation265 S.E.2d 537,164 W.Va. 599
CourtWest Virginia Supreme Court
PartiesSTATE ex rel. Everett Ray GILLESPIE v. Earl G. KENDRICK, Sheriff, etc., et al.

Syllabus by the Court

1. County jail prisoners have the statutory right to good time credits and it is mandatory that they be granted their credits if they "faithfully comply with all rules and regulations." W.Va.Code, 7-8-11.

2. Good time credit is a valuable liberty interest protected by the due process clause, W.Va.Const. art. III § 10.

3. A county jail prisoner will be presumed to have conducted himself well and will be entitled to good time credit unless he had a recorded history of misconduct.

4. A trial court has a statutory duty not to grant work release privileges unless adequate arrangements are made for their implementation and administration. W.Va.Code, 62-11A-1(7).

5. The work release privilege statute provides return to confinement in jail as the sole remedy for violation of that privilege. Code, 62-11A-1(2).

6. Time served on a work release privilege must be counted as time served on the underlying sentence to comply with the state double jeopardy proscription against multiple punishments, W.Va.Const. art. III, § 5.

John R. Frazier, Princeton, for relator.

Chauncey H. Browning, Jr., Atty. Gen., Joseph C. Cometti, Asst. Atty. Gen., Charleston, for respondent.

HARSHBARGER, Justice:

This original proceeding in prohibition and habeas corpus seeks Everett Ray Gillespie's immediate release from the Mercer County Jail and an order prohibiting that county's Circuit Court from adding thirty-two days to his sentence.

Gillespie pled guilty on November 21, 1978 to attempting to commit a felony. On November 30, 1978, he was sentenced to serve one year in the county jail to begin December 4, 1978. The sentencing order provided that he was to be released every Monday through Friday from 7:00 a. m. to 7:00 p. m. to work. He was employed by Dodson Brothers and regularly left the jail and returned to it each day during the period of his confinement. But in July, 1979, he was terminated by his original employer. He did not inform the jail and continued to leave during the allotted hours. He testified that he sought other employment and did at times work at odd jobs.

His work release privilege was revoked on October 9, 1979, when jail personnel learned that he was no longer employed by Dodson Brothers. A probation officer petitioned the trial court to extend Gillespie's term of confinement beyond December 3, 1979, to compensate for the time he spent out of jail on work release while not employed; and after a hearing the court ordered that he serve an additional thirty-two days.

Gillespie's petition alleges that he was entitled to good time credit under W.Va.Code, 7-8-11, which he was not granted by the sheriff, and such credit would be for a greater period of time than the extended sentence; that imposition of an additional thirty-two days to his sentence violated his double jeopardy rights; and that the circuit court had no authority to extend his sentence past December 3.

I.

W.Va.Code, 7-8-11 (1963), 1 provides for deductions from sentences of prisoners in county jails for good conduct or donating blood. We have written several times on the state prison good time statute, but have never interpreted 7-8-11.

The county jail good time statute is mandatory. Every prisoner sentenced to six months or more "shall be entitled to a deduction of five days from each month of his sentence," if he complies with jail rules and regulations or donates blood. Code, 28-5-27 (1923), 2 was similar in construction and wording to the county jail statute when interpreted in Woods v. Whyte, W.Va., 247 S.E.2d 830 (1978):

1) Law-Allowable Good Time W.Va. Code, 28-5-27 (1923): This authorizes as much as 10 days per month for inmates who have not violated any prison rules in a given month.

II) Expiration date The date an inmate will be released if he earns all of his law-allowable good time. An inmate with no infractions against him will be released on this date by operation of law. Id., at 831 (Emphasis added).

See also Watts v. Skeen, 132 W.Va. 737, 54 S.E.2d 563 (1949) where the Court speaks about "entitlement to good time credit which has been earned"; and 46 Op.Att'y Gen. 159 (1955). The revised penitentiary good time statute, Code, 28-5-28 (1979), is also mandatory. Woodring v. Whyte, W.Va., 242 S.E.2d 238 (1978).

The good time credit law for federal prisoners, 18 U.S.C. § 4161, 3 follows the language In sharp contrast, 18 U.S.C. § 4161, governing good time, provides that inmates "shall be entitled" to deductions from sentences when their conduct has been in keeping with the rules of the institution. Unlike parole, which an inmate may be unable to earn no matter how good his conduct . . . earned good time is much closer to the "conditional liberty" that Morrissey (v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)) held was entitled to procedural protection. Id., at 1154.

of our county jail and former state penitentiary good time statutes and has been held to entitle prisoners to good time credit unless they have not faithfully observed all the rules. A federal district court stated in Downes v. Norton, 360 F.Supp. 1151 (D.Conn.1973):

We have consistently held that legislative use of "shall", means that that to which the word applies must be done, absent a showing of contrary intent. Woodring, supra ; Terry v. Sencindiver, 153 W.Va. 651, 171 S.E.2d 480 (1969), Syllabus Point 2. Therefore, county jail prisoners have the statutory right to good time credit and it is mandatory that they be granted their credits if they "faithfully comply with all rules and regulations". Code, 7-8-11. 4

II.

Mercer County's sheriff has not promulgated any rules or regulations governing conduct of inmates in his jail and the government argues that Gillespie is not entitled to good time credit because there were no rules for him to obey.

Good time credit is a valuable liberty interest protected by the due process clause. The Supreme Court elaborated in Wolff v. McDonnell, 418 U.S. 539, 557-58, 94 S.Ct. 2963, 2975-76, 41 L.Ed.2d 935 (1974):

But the State having created the right to good time . . . the prisoner's interest has real substance and is sufficiently embraced within Fourteenth Amendment "liberty" to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated . . . .

We think a person's liberty is equally protected, even when the liberty itself is a statutory creation of the State. The touchstone of due process is protection of the individual against arbitrary action of government, Dent v. West Virginia, 129 U.S. 114, 123, 9 S.Ct. 231, 233, 32 L.Ed. 623 (1889).

In Wolff, supra, the Court established minimum due process standards which must be met before a state can revoke a prisoner's statutory right to good time. The Nebraska penal system, which was challenged in Wolff, had rules about standards of conduct for prisoners, and so the Court was not required to answer whether due process requires the publication of rules and regulations.

Other courts have decided that written rules are a prerequisite to deprivation of rights based on failure to comply therewith. The opinions address both deprivation of good time credit and punishment such as segregation. Good time credit and freedom from additional confinement within jail are liberty interests to which due process considerations apply equally.

Three procedural safeguards are constitutionally required by the Due Process Clause of the Fourteenth Amendment: 1. There must be rules and regulations officially promulgated by prison authorities and communicated to the prisoner apprising him of what conduct can subject him to serious discipline. . . . Sinclair v. Henderson, 331 F.Supp. 1123, 1129 (E.D.La.1971) . . . the present system still embodies the critical shortcoming that inadequate notice is given to inmates of what is expected of them. . . . Accordingly, we will order that the defendants adopt a comprehensive set of rules, submit them to us for our approval, and post them in locations to be approved by us, or otherwise make them fully available to all inmates. Rhem v. McGrath, 326 F.Supp. 681, 692 (S.D.N.Y.1971).

This Court holds that in the prison context it is constitutionally required by the due process clause that the rules specifying prohibited conduct and the range of penalties for their infraction be written with reasonable specificity so that the inmate has fair warning to conform. Such fair warning requires that the rules must somehow be communicated to those so required to conform. Landman v. Royster, 333 F.Supp. 621, 654-656 (E.D.Va.1971); Sinclair v. Henderson, 331 F.Supp. 1123, 1129 (E.D.La.1971); Rhem v. McGrath, 326 F.Supp. 681, 691 (S.D.N.Y.1971). See also Colligan v. United States, 349 F.Supp. 1233 (E.D.Mich.1972). This rule is, in addition to the constitutional mandate based on a conception of fundamental fairness, supported by the following considerations: first, prior notice of behavioral standards enhances the inmate's sense of fair play and thus contributes to rehabilitation; second, equal treatment of similar conduct of offending inmates by the prison authority will be more certain; third, clear rules may tend to decrease dissatisfaction with the disciplinary processes to such an extent that litigation may decrease; and fourth, since prison life is highly routine, it would not appear to be a heavy burden to require the prison authority to establish in advance reasonably clear rules. Notification of the inmates of the rules could be perfected by publishing the rules at several convenient locations in the prison to which the inmates have full access. Sands v. Wainwright, 357 F.Supp. 1062, 1090 (M.D.Fla.1973), vacated and...

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  • Dawson v. Kendrick
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    • U.S. District Court — Southern District of West Virginia
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    ...loss, the court finds that its inquiry is answered by the West Virginia Supreme Court of Appeals' decision in State ex rel. Gillespie v. Kendrick, 265 S.E.2d 537 (W.Va.1980). In Gillespie the court construed W.Va.Code ž 7-8-11 (Replacement Vol. 1976) which provides for the reduction in sent......
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