State ex rel. Phalen v. Roberts
| Decision Date | 16 June 2021 |
| Docket Number | No. 20-1023,20-1023 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia EX REL. Scott PHALEN, Petitioner v. Craig ROBERTS, Superintendent, South Central Regional Jail, Respondent |
John Sullivan, Esq., Ronni Sheets, Esq., Kanawha County Public, Defender Office, Charleston, West Virginia, Counsel for Petitioner.
Patrick Morrisey, Esq., West Virginia Attorney General, Briana J. Marino, Esq., Andrea Nease Proper, Esq., Assistant Attorneys General, Counsel for Respondent.
West Virginia law provides that any inmate may be paroled after serving one-fourth of a definite term sentence. W. Va. Code § 62-12-13(b)(1)(A) [2021]. After serving one-fourth of his ten-year definite term sentence for violating conditions of his supervised release, Petitioner Scott Phalen was released on parole. However, he was arrested and reincarcerated six months later because the Division of Corrections and Rehabilitation ("DOCR") determined that he had been released in error based upon an internal policy that inmates who are incarcerated for violating the conditions of their supervised release are neither eligible for parole pursuant to West Virginia Code § 62-12-13 nor entitled to receive commutation from their sentences for good conduct (also referred to as "good time") pursuant to West Virginia Code § 15A-4-17. Petitioner seeks an original jurisdiction writ of habeas corpus to direct Respondent Craig Roberts, Superintendent, South Central Regional Jail, to restore him to parole. See W. Va. Const. Art. VIII, § 3 ; W. Va. Code § 53-4-1 [1923].
Upon careful consideration of the parties’ briefs and oral arguments, the appendix record, and the pertinent legal authority, including 2021 legislation enacted following the filing of the instant petition that purports to preclude petitioner from being granted good time after a certain date, and for the reasons set forth below, we grant petitioner's request for habeas relief.
The relevant facts of this case are gleaned from representations made in the parties’ briefs and the scant appendix record. In 2011, petitioner was indicted by a Kanawha County Grand Jury on the offenses of first-degree sexual assault, first-degree sexual abuse, sexual abuse by a parent, and incest. The indictment alleged that petitioner's crimes occurred "on or about December 20, 2010." He pled guilty to one count of first-degree sexual abuse, and, on February 14, 2012, he was sentenced to one to five years in prison, pursuant to West Virginia Code § 61-8B-7 [2006] () followed by fifteen years of extended supervised release, pursuant to West Virginia Code § 62-12-26(a).1 See Syl. Pt. 11, in part, State v. James , 227 W. Va. 407, 710 S.E.2d 98 (2011) (). Petitioner discharged his prison sentence on December 2, 2013, and then commenced the period of supervised release. See W. Va. Code § 62-12-26(d) ().
West Virginia Code § 62-12-26(h)(3) provides that if a circuit court "finds by clear and convincing evidence that the defendant violated a condition of supervised release," then the circuit court may revoke the defendant's release and "require the defendant to serve in prison all or part of the term of supervised release." The circuit court found that petitioner violated the conditions of his supervised release2 in 2014, for which he was sentenced to five years in prison. After being released to complete the period of supervised release, petitioner again violated the conditions of his supervised release and so, on June 9, 2017, the court ordered that petitioner "be sentenced to confinement ... for a determinate term of ten (10) years" for the violation.
West Virginia Code § 62-12-13(b)(1)(A) [2021] provides that "[a]ny inmate of a state correctional institution is eligible for parole if he or she ... has served one fourth of his or her definite term sentence[.]" After serving one fourth of his definite ten-year term, petitioner appeared before the Parole Board, which determined that petitioner should be released on parole.3 Petitioner was released on parole on June 29, 2020.
In November of 2020, five months after petitioner's release on parole, the DOCR created new internal policy directives establishing that, among others, "sex offenders and child/abuse neglect offenders" are neither eligible for parole nor shall receive day-for-day good time4 for incarceration imposed for revocation of supervised release.5 On December 7, 2020, the DOCR issued a warrant for petitioner's arrest because, pursuant to this new DOCR policy, petitioner had been released from custody on June 29, 2020, due to a "clerical error" or "mistake." See W. Va. Code § 62-8-8(a) [2007] ().6
On December 23, 2020, petitioner filed a petition for a writ of habeas corpus with this Court seeking reinstatement to parole. Following the filing of respondent's summary response to the petition, we issued a rule to show cause and scheduled oral argument for April 14, 2021.
While this case was pending, during the 2021 Legislative session, Senate Bill 713 ("S.B. 713") was introduced to amend the good time statute, West Virginia Code § 15A-4-17, in relevant part, to exclude inmates committed, pursuant to West Virginia Code § 62-12-26, for violating the conditions of their supervised release from being granted good time except that "an inmate who had good time calculated into his or her release prior to October 21, 2020," is entitled to the good time awarded or earned. See W. Va. Code § 15A-4-17(a) [2021].7
Senate Bill 713 was passed by the Legislature on April 7, 2021, and approved by the Governor twelve days later. The Legislature made S.B. 713 effective on April 30, 2021. In light of this new legislation, which respondent states is simply a codification of the DOCR's "stance" in Policy Directive 151.06,8 this Court directed the parties to file supplemental briefs addressing the impact of S.B. 713 on the issues raised in petitioner's habeas petition.
Oral argument was conducted on April 14, 2021, and the ordered supplemental briefing was filed thereafter. As discussed in more detail below, respondent avers that pursuant to S.B. 713, petitioner falls squarely within the category of inmates excluded from receiving good time because he is incarcerated for violating the conditions of his supervised release pursuant to West Virginia Code § 62-12-26. Thus, applying S.B. 713 to petitioner's term of incarceration, and giving him credit for good time received prior to October 21, 2020, as the statute provides, respondent states that S.B. 713 changes petitioner's minimum discharge date from May 1, 2027, to November 10, 2023. For his part, petitioner argues that the retroactive application of S.B. 713 to his sentence precluding him from being granted good time after October 20, 2020, violates constitutional ex post facto principles and, insofar as it applies to inmates whose underlying offenses were committed prior to the effective date of the statute, it is unconstitutional.
This case is before us on petitioner's original petition for a writ of habeas corpus. Pursuant to West Virginia Code § 53-4A-7(c) of the Post-Conviction Habeas Corpus statute, "we are given broad powers in fashioning the form of relief accorded in a habeas corpus proceeding." State ex rel. McMannis v. Mohn , 163 W. Va. 129, 141, 254 S.E.2d 805, 811 (1979).
Furthermore, we have explained that, generally, Syl. Pt. 1, State ex rel. Crupe v. Yardley , 213 W. Va. 335, 582 S.E.2d 782 (2003). Accord Tasker v. Griffith, 160 W.Va. 739, 742, 238 S.E.2d 229, 231 (1977) (); Syl. pt. 1, State ex rel. Tune v. Thompson, 151 W.Va. 282, 151 S.E.2d 732 (1966) ().
In determining whether a writ shall issue, we are also asked to determine whether a certain provision of S.B. 713 violates the constitutional prohibition against ex post facto laws. " ’ ." Syl. Pt. 2, State v. James , 227 W. Va. 407, 710 S.E.2d 98 (2011). With these standards and considerations in mind, we proceed to examine the petition before us.
Our determination of whether petitioner should be granted habeas relief rests on the resolution of two questions: first, whether petitioner, as an inmate incarcerated for violating the conditions of his supervised release, was eligible for parole when he was released on June 29, 2020; and second, whether S.B. 713 may be applied to petitioner to exclude him from being awarded or earning good time after October 20, 2020.9
While each question requires its own analysis, we observe, as a threshold matter, that respondent...
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