State ex rel. Goff v. Merrifield

• Decision Date: 17 June 1994
• Docket Number: No. 22088,22088
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Marshall GOFF, Petitioner, v. Honorable Rodney B. MERRIFIELD, Judge of the Circuit Court of Marion County, and Ron Watkins, Sheriff of Marion County, Respondents.

Page 695

446 S.E.2d 695

191 W.Va. 473

STATE of West Virginia ex rel. Marshall GOFF, Petitioner, v. Honorable Rodney B. MERRIFIELD, Judge of the Circuit Court

of Marion County, and Ron Watkins, Sheriff of

Marion County, Respondents.

No. 22088.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 8, 1994.

Decided June 17, 1994.

Syllabus by the Court

1. " W.Va.Code, 7-8-11 [1963] allows good time credit for county jail prisoners sentenced to jail for cumulative terms of more than six months." Syl. pt. 3, State ex rel. Coombs v. Barnette, 179 W.Va. 347, 368 S.E.2d 717 (1988).

2. " '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 the rules and regulations. W.Va.Code, 7-8-11." ' Syl.Pt. 1, State ex rel. Gillespie v. Kendrick, 164 W.Va. 599, 265 S.E.2d 537 (1980)." Syl. pt. 1, State ex rel. Coombs v. Barnette, 179 W.Va. 347, 368 S.E.2d 717 (1988).

3. " 'Good time credit is a valuable liberty interest protected by the due process clause, W.Va. Const. Art. III, § 10.' Syl. Pt. 2, State ex rel. Gillespie v. Kendrick, 164 W.Va. 599, 265 S.E.2d 537 (1980)." Syl. pt. 2, State ex rel. Coombs v. Barnette, 179 W.Va. 347, 368 S.E.2d 717 (1988).

4. " 'Penal statutes must be strictly construed against the State and in favor of the defendant.' Syl.Pt. 3, State ex rel. Carson v. Wood, 154 W.Va. 397, 175 S.E.2d 482 (1970)." Syl. pt. 4, State ex rel. Coombs v. Barnette, 179 W.Va. 347, 368 S.E.2d 717 (1988).

5. "Generally the words of a statute are to be given their ordinary and familiar significance and meaning, and regard is to be had for their general and proper use." Syl. pt. 4, State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars of the United States, a Corporation, 144 W.Va. 137, 107 S.E.2d 353 (1959).

6. A person who is ordered to serve a consecutive six-month period in the county jail as a condition of probation for one offense and also sentenced to serve an additional six-month period in the county jail on another offense, with the two six-month periods to be served consecutively, is eligible for good time credit pursuant to W.Va.Code, 7-8-11 [1986].

7. " ' " 'A statute should be so read and applied as to make it accord with the spirit, purposes and objects of the general system of law of which it is intended to form a part; it being presumed that the legislators who drafted and passed it were familiar with all existing law, applicable to the subject matter, whether constitutional, statutory or common, and intended the statute to harmonize completely with the same and aid in the effectuation of the general purpose and design thereof, if its terms are consistent therewith.' Syllabus Point 5, State v. Snyder, 64 W.Va. 659, 63 S.E. 385 (1908)." Syl.Pt. 1, State ex rel. Simpkins v. Harvey, W.Va. 305 S.E.2d 268 (1983).' Syl.Pt. 3, Shell v. Bechtold, 175 W.Va. 792, 338 S.E.2d 393 (1985)." Syl. pt. 1, State v. White, 188 W.Va. 534, 425 S.E.2d 210 (1992).

8. " ' "In ascertaining legislative intent, effect must be given to each part of the statute and to the statute as a whole so as to accomplish the general purpose of the legislation." Syl.Pt. 2, Smith v. State Workmen's Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975).' Syl.Pt. 3, State ex rel. Fetters v. Hott, 173 W.Va. 502, 318 S.E.2d 446 (1984)." Syl. pt. 2, State v. White, 188 W.Va. 534, 425 S.E.2d 210 (1992).

9. " '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.' Point 2 Syllabus, Terry v. Sencindiver, 153 W.Va. 651[, 171 S.E.2d 480 (1969) ]." Syl. pt. 3, Bounds v. State Workmen's Compensation Comm'r, 153 W.Va. 670, 172 S.E.2d 379 (1970).

10. " 'When a statute is clear and unambiguous and the legislative intent is plain the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute.' Syl.Pt. 1, Cummins v. State Workmen's Compensation Comm'r, 152 W.Va. 781, 166 S.E.2d 562 (1969)." Syl. pt. 3, Kosegi v. Pugliese, 185 W.Va. 384, 407 S.E.2d 388 (1991).

11. When a person is ordered to confinement in the county jail as a condition of probation and performs work as a trustee within the jail, that person is entitled to a reduction in his sentence for work performed in the county jail according to W.Va.Code, 17-15-4 [1987].

Dana R. Shay, Fairmont, for petitioner.

James H. Hearst, Asst. Pros. Atty., Fairmont, for respondent Ron Watkins.

Lonnie C. Simmons, DiTrapano & Jackson, Charleston, for respondent Rodney B. Merrifield.

McHUGH, Justice:

In the case before this Court, the petitioner, Marshall Goff, seeks a writ of habeas corpus against the respondents, the Honorable Rodney B. Merrifield, Judge of the Circuit Court of Marion County, and Ron Watkins, Sheriff of Marion County. The petitioner seeks his immediate release from the Marion County jail. ¹

I

In February, 1993, the petitioner was indicted by the Marion County grand jury for the following offenses: Count I: aggravated robbery; Count II: conspiracy to commit a felony; Count III: entering without breaking; and Count IV: intimidation of a witness (misdemeanor).

The petitioner entered into a plea agreement with the State whereby the petitioner plead guilty to Counts I and IV. The State agreed to dismiss the remaining Counts of the indictment, Counts II and III.

On March 31, 1993, the respondent judge, in essence, adopted the State's sentencing recommendations and ordered that the petitioner be confined on Count I in the West Virginia Penitentiary for ten years, sentence suspended, and placed on probation for a period of five years, subject to the condition of probation that the petitioner would serve six months in the Marion County jail. On Count IV, the respondent judge ordered that the petitioner be confined in the Marion County jail for a period of six months and fined $25.00. The respondent judge further ordered that the two six-month periods run consecutively, with the petitioner serving the six-month period on Count IV second.

On August 2, 1993, the petitioner petitioned the circuit court asking the court to allow him good time credit if he complied with the jail's rules and regulations. The circuit court, however, denied the petitioner's request.

On August 16, 1993, the petitioner became a trustee in the jail. On October 5, 1993, a hearing was held regarding the petitioner's request that he be allowed to receive trustee credit on his six-month term as a condition of probation. The court denied the petitioner's request.

II

There are two issues to be decided in this case. First, is whether a person who is ordered to serve a consecutive six-month period in the county jail as a condition of probation for one offense and also sentenced to serve an additional six-month period in the county jail on another offense, with the two periods to be served consecutively, is eligible for good time credit pursuant to W.Va.Code, 7-8-11 [1986]. Second, is whether that same person is entitled to trustee credit pursuant to W.Va.Code, 17-15-4 [1987].

We begin by noting that this writ of habeas corpus may be moot in that the petitioner was to be released from the county jail in March of 1994. ² However, because this issue is capable of repetition, a resolution is needed, and we therefore decline to apply the doctrine of mootness. See syl. pt. 1, Citizen Awareness Regarding Education v. Calhoun County Publishing, Inc., 185 W.Va. 168, 406 S.E.2d 65 (1991). Thus, we will interpret the relevant statutes and resolve the above issues under the facts of this case.

The statutory mandate regarding good time credit is found in W.Va.Code, 7-8-11 [1986]:

Every prisoner sentenced to the county jail for a term exceeding six months who, in the judgment of the sheriff, shall faithfully comply with all rules and regulations of said county jail during his term of confinement shall be entitled to a deduction of five days from each month of his sentence.

This Court expounded upon this provision in State ex rel. Coombs v. Barnette, 179 W.Va. 347, 368 S.E.2d 717 (1988).

In Coombs, the petitioner was ordered to serve three consecutive ninety-day sentences stemming from his guilty plea on three misdemeanor charges of sexual abuse. We granted the petitioner good time credit for his cumulative terms of more than six months pursuant to W.Va.Code, 7-8-11 [1963] ³ as held in syllabus point 3 of Coombs: " W.Va.Code, 7-8-11 [1963] allows good time credit for county jail prisoners sentenced to jail for cumulative terms of more than six months."

In arriving at the decision to permit the cumulation of terms, we reiterated in syllabus point 1 of Coombs that:

'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 the rules and regulations. W.Va.Code, 7-8-11." ' Syl.Pt. 1, State ex rel. Gillespie v. Kendrick, 164 W.Va. 599, 265 S.E.2d 537 (1980).

Moreover, we stressed the due process concerns associated with good time credit in syllabus point 2 of Coombs, which stated that " '[g]ood time credit is a valuable liberty interest protected by the due process clause, W.Va. Const. Art. III, § 10.' Syl.Pt. 2, State ex rel. Gillespie v. Kendrick, 164 W.Va. 599, 265 S.E.2d 537 (1980)." Finally, in syllabus point 4 of Coombs we ultimately relied upon the rule of construction regarding penal statutes which is that " '[p]enal statutes must be strictly construed against the State and in favor of the defendant.' Syl. pt. 3, State ex rel. Carson v. Wood, 154 W.Va. 397, 175 S.E.2d 482 (1970)."

The petitioner herein contends that since he was ordered to serve two six-month periods, albeit one consecutive six-month period as a condition of probation, his cumulative periods make him eligible to receive good time credit,...