State of W. Va. v. McGill

• Decision Date: 15 November 2012
• Docket Number: No. 11–0261.,11–0261.
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Respondent v. Michael John McGILL, Petitioner.

230 W.Va. 85

736 S.E.2d 85

STATE of West Virginia, Respondent

v.Michael John McGILL, Petitioner.

No. 11–0261.

Supreme Court of Appeals of

West Virginia.

Submitted Sept. 5, 2012.

Decided Nov. 15, 2012.

Syllabus by the Court

1. “The Supreme Court of Appeals reviews sentencing orders, including orders of

restitution made in connection with a defendant's sentencing, under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands.” Syl. Pt. 1, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997)

2. “Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995)

3. Pursuant to principles contained in Rule 3.1 of West Virginia Rules of Professional Conduct, an appellate remedy should not be pursued unless counsel believes in good faith that error has been committed and there is a reasonable basis for the extension, modification, or reversal of existing law.

4. “The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.” Syl. Pt. 1, Smith v. State Workmen's Comp. Comm'r, 159 W.Va. 108,219 S.E.2d 316 (1975).

5. The restitution provisions of the Victim Protection Act of 1984, West Virginia Code §§ 61–11A–1 to 8, do not extend to recovery of costs or expenses incurred by governmental agencies in apprehending perpetrators of criminal acts.

Matthew D. Brummond, Assistant Public Defender, Public Defender Corporation, Charleston, WV, for Petitioner.

Darrell V. McGraw, Jr., Attorney General, Barbara H. Allen, Managing Deputy Attorney General, Charleston, WV, for Respondent.

McHUGH, Justice:

Michael John McGill (hereinafter “Petitioner”) appeals his conviction pursuant to the December 29, 2010, sentencing order of the Circuit Court of Marshall County. The conviction resulted from acceptance of Petitioner's guilty plea to the offense of escape from custody in violation of West Virginia Code § 61–5–10 (2000). He contends that the circuit court lacked jurisdiction to accept his guilty plea to this offense because his act of leaving home confinement only amounted to a violation of a pre-trial bail condition rather than an escape from custody or confinement. He further argues that the lower court erred by ordering him to pay restitution to the State for costs associated with apprehending him following his unauthorized departure from home confinement.

The State maintains that whether an individual who is placed on home confinement as a condition of bail is subject to the reach of the escape statute is a matter of statutory construction rather than jurisdiction. Since Petitioner did not directly preserve this issue, he waived or forfeited his right to appeal it. The State confesses error as to the propriety of restitution in this case.

After completing a thorough and careful study of the briefs, the portions of the record submitted as the appendix to this appeal, the oral arguments of the parties, and relevant case law, Petitioner's conviction is affirmed, but the imposition of restitution is reversed.

I. Factual and Procedural Background

In a separate criminal case, Petitioner was placed on home confinement as a condition of bail pending trial on charges of third offense domestic battery and malicious assault.¹ While on pre-trial home confinement, Petitioner moved the court to change his residence while awaiting trial but this request was denied. Thereafter, Petitioner cut his monitoring bracelet and left the residence where he had been ordered to remain.

A group of thirty-seven law enforcement officers identified in the record as members of the West Virginia and Federal Fugitive Task Force undertook the recapture of Petitioner when it was discovered that he had fled West Virginia and traveled into Pennsylvania.² It took nine days for the task force to recapture Petitioner.

On November 9, 2010, the grand jury returned a two count indictment against petitioner involving the charges of escape from custody and grand larceny,³ in violation of West Virginia Code § 61–5–10 and § 61–3–13(a) (1994) respectively. A pretrial conference was held on December 10, 2010, at which Petitioner's motion to dismiss the escape from custody charge was entertained. Petitioner essentially argued that a person on pretrial bail is not truly in custody while on home confinement because restraint is not the result of conviction of any crime, and he was unaware that he was in custody as a result of the bail condition. He asserted that the felony charge of escape from custody contained in West Virginia Code § 61–5–10 only has application after a person has been convicted and does not extend to situations where someone is placed on home confinement as a condition of pretrial bail. The prosecution countered by noting that the statute encompassed those charged with a crime by expressly providing that “the custody or confinement ... [could be] by virtue of a charge or conviction for a felony.” Id. At the conclusion of the arguments, the lower court denied the motion to dismiss the escape from custody charge. The trial court's ruling was based on the following analysis:

The crime of escape is completely statutory.... Custody and confinement, as per this particular statute, 61–5–10, are different, but the same. There's a difference with a distinction.... [C]onfined is when they're with an institution, facility or alternative sentence. Custody is when they're with a person.... The theory that the—is charged is that he (Mr. McGill) was in custody of an individual or a representative and not the theory that he was in the confinement of an institution, facility or an alternative sentence of confinement.

* * *

I do find that he (Mr. McGill) was in the custody, legal custody of the Marshall County Sheriff's Department, specifically Representatives Wallace and Cook.

On December 20, 2010, Petitioner pled guilty ⁴ to the escape from custody charge. The plea was not tendered as a conditional guilty plea pursuant to Rule 11(a)(2) of the West Virginia Rules of Criminal Procedure. As part of the plea bargain, the State agreed to move to dismiss the grand larceny charge with prejudice. A December 29, 2010, sentencing order reflects that the lower court accepted the proffered plea to the felony offense of escape from custody, imposed a three year sentence, and ordered restitution to the State in the amount of $8,261.56 for costs associated with apprehending the petitioner. The transcript of the sentencing hearing indicates that the basis for ordering restitution was grounded in the court's finding that recovery for the expense of law enforcement protecting the public as a whole was not precluded under the Victim Protection Act of 1984, West Virginia Code §§ 61–11A–1 to 8, when the Act is read in its entirety.

It is from the December 29, 2010, sentencing order that Petitioner filed this appeal.

II. Standard of Review

This Court's established standard for reviewing sentencing orders as set forth in syllabus point one of State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997), is:

The Supreme Court of Appeals reviews sentencing orders, including orders of restitution made in connection with a defendant's sentencing, under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands.

The issues upon which Petitioner bases his appeal are statutory matters which are reviewed as questions of law. “Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

III. Discussion

As noted at the outset, Petitioner challenges the lower court's rulings in two regards, one which he maintains is grounded in the lower court's lack of jurisdiction which could result from a different interpretation of the escape from custody statute than that given it by the lower court, and the other involving the imposition of restitution to the State. The first matter, although couched as a jurisdictional issue, is nothing more than a creative attempt to have this Court examine an issue which was not properly preserved for appeal. The lower court had jurisdiction of the criminal matter before it, which extended to determining the applicability of the escape statute at issue. W.Va. Const. Art VIII, § 6. If jurisdiction was seriously questioned, a timely petition for writ of prohibition should have been filed. As aptly noted by the State, Petitioner effectively waived or forfeited his right to appeal by failing to enter a conditional guilty plea ⁵ or otherwise preserve the matter for review by seeking a writ of prohibition or proceeding to trial. See State v. Legg, 207 W.Va. 686, 690 n. 7, 536 S.E.2d 110, 114 n. 7 (2000), relying on Justice Cleckley's concurrence in State v. Lilly, 194 W.Va. 595, 461 S.E.2d 101 (1995) (“When a defendant unconditionally and voluntarily pleads guilty to an offense, the defendant generally waives nonjurisdictional objections to a circuit court's rulings, and therefore cannot appeal those questions to a higher court.”). Merely proposing an alternative construction of a statute is too tangential a basis for asserting lack of jurisdiction as grounds for an appeal. As the issue was not properly preserved for appeal, it bears no further consideration at this juncture.

This Court has observed that since the Rules of Appellate Procedure have been modified to more clearly provide a right of appeal in all cases, the frequency of such creative methods to obtain review has increased. Although the appellate procedures have undergone change to insure that the disposition of each perfected appeal is reflected in a written decision, nothing has changed as to the professional...