State v. Anderson, 17136
| Decision Date | 16 July 1987 |
| Docket Number | No. 17136,17136 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia v. David L. ANDERSON. |
Syllabus by the Court
1. Syllabus point 1, State v. Stuckey, --- W.Va. ----, 324 S.E.2d 379 (1984).
2. "While our constitutional proportionality standards theoretically can apply to any criminal sentence, they are basically applicable to those sentences where there is either no fixed maximum set by statute or where there is a life recidivist sentence." Syllabus point 4 of Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981).
Gayle Fidler, Asst. Atty. Gen., for appellant.
John H. Shumate, Jr., Mt. Hope, for appellee.
This is an appeal by David L. Anderson from an order of the Circuit Court of Fayette County entered on May 21, 1985. That order directed the defendant's transfer from the Anthony Center for Youthful Male Offenders to the State Penitentiary and reinstated a prior order sentencing him to from five to eighteen years in the State Penitentiary. On appeal the defendant claims that the circuit court erred in ordering his transfer from the Center for Youthful Male Offenders to the State Penitentiary. We disagree, and we affirm the decision of the Circuit Court of Fayette County.
On July 8, 1982, the defendant pled guilty to a charge of non-aggravated robbery in the Circuit Court of Fayette County and was sentenced to from five to eighteen years in the State Penitentiary. However, since he qualified as a youthful male offender under W.Va.Code § 25-4-6, the circuit court, in lieu of committing him to the State Penitentiary, sentenced him to the Anthony Center for a period of not less than six months nor more than two years with the provision that upon completion of the program at the Anthony Center he would be returned to the Fayette County Circuit Court and placed on probation for the remainder of his sentence.
While at the Anthony Center the defendant was charged with four infractions of the resident code of conduct. The first charge involved an attempt by the defendant to smoke a cigarette in a restroom in violation of the resident code and in violation of the State fire codes. The defendant plead guilty to that charge. The second charge involved the defendant's encouraging another resident, Robert Holland, to disobey a disciplinary officer's order. After a hearing, the defendant was found guilty of that charge. The third charge grew out of an argument that the defendant had with another resident, Frank McIntosh. In spite of a disciplinary officer's intervention and order that they stop arguing, the defendant continued. A formal hearing was conducted on that charge and the defendant was found guilty. The fourth incident, which occurred on July 24, 1983, involved the defendant's threatening and attempting to fight another resident, Robert Easthom. Other residents had to restrain him. Later he "broke" away from a line of residents and started toward Easthom. A formal hearing was conducted on that charge, and, based on the testimony of Mr. Easthom, the disciplinary committee found the defendant guilty.
After the fourth charge, involving the incident which occurred on July 24, 1983, the Superintendent of the Department of Corrections returned the defendant to the Circuit Court of Fayette County as being unfit to remain at the Anthony Center.
On August 17, 1983, the circuit court conducted a hearing on the remand. At the hearing the court determined, based on the disciplinary reports sent by the superintendent, that the defendant had committed the disciplinary violations and that he should be transferred from the Anthony Center. The court, as a consequence, reinstated the defendant's original sentence of from five to eighteen years in the State Penitentiary. Although the defendant was present for the August 17, 1983, hearing, along with appointed counsel, he was not afforded an opportunity to present evidence in his own behalf concerning the alleged violations.
On October 31, 1983, the defendant, who had been sent to Huttonsville Correctional Center for a classification evaluation, was returned to the Circuit Court of Fayette County. On that date the circuit judge denied his motion for probation and ordered that he be sent to the State Penitentiary. Again, the defendant was not afforded an opportunity to present evidence on the violations.
After being sent to the State Penitentiary, the defendant petitioned this Court for a writ of habeas corpus. In the petition he charged that his imprisonment was illegal since no proper evidentiary hearing had been conducted by the circuit court on the infractions leading to his dismissal from the Anthony Center. The writ was granted on December 24, 1983, and the case was remanded to the Circuit Court of Fayette County for a hearing. A hearing was held on March 1, 1985, almost two years after the reinstatement of the defendant's original sentence and his transfer to the State Penitentiary.
During the March 1, 1985, hearing extensive evidence was taken on the alleged infractions of the Anthony Center code of conduct. At the end of the hearing the trial court concluded that the defendant was guilty of the charged infractions and affirmed the reinstatement of the defendant's penitentiary sentence. It is from that ruling that the defendant now appeals.
On appeal the defendant asserts that he was denied due process of law during the determination of his involvement in those infractions which led to his transfer from the Anthony Center.
In Watson v. Whyte, 162 W.Va. 26, 245 S.E.2d 916 (1978), this Court discussed the due process standards which apply in proceedings relating to transfers from the center for youthful male offenders. The Court ruled that minimum due process requirements applicable to probation proceedings applied. In the later case of State v. Stuckey, --- W.Va. ----, 324 S.E.2d 379 (1984), the Court ruled that in a proceeding for transfer of a youthful offender, the youthful offender is entitled to the due process protections outlined in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) and Louk v. Haynes, 159 W.Va. 482, 223 S.E.2d 780 (1976). In syllabus point 1 of State v. Stuckey, the Court stated:
"A youthful male offender, sentenced to confinement in a special center pursuant to W.Va.Code, 25-4-6, is entitled to an evidentiary hearing when he is returned, as unfit, to the sentencing court and faces resentencing to the penitentiary; and he is entitled to counsel to assist him in the hearing before the sentencing court." Syllabus Point 2, Watson v. Whyte, 162 W.Va. 26, 245 S.E.2d 916 (1978).
In the Watson case the Court specifically stated that the due process requirements include:
(a) written notice of the claimed violations ...; (b) disclosure ... of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a "neutral and detached" hearing body ...; and (f) a written statement by the fact finders as to the evidence called on and reasons for ... [the transfer].
Watson v. Whyte, 162 W.Va. at 32, 245 S.E.2d at 920. The Court also noted that, since the defendant would be confronted by a prosecutor, he was entitled to counsel. The Court, however, stated that the requirements of due process could be satisfied by a proper evidentiary hearing conducted in the original sentencing court. As indicated in State v. Stuckey, supra, the Court recognized that the institutional hearings are not transfer hearings, but are disciplinary hearings and concerned with single incidents. The question in disciplinary hearings is not whether the defendant is fit to remain in the Center, but whether disciplinary violations have occurred. The hearing before the circuit court is the hearing conducted for the purpose of determining whether the youthful offender is fit remain in the youthful center. It is the hearing at which the overall effect of all disciplinary violations is considered, and it is the proceeding at which there is a determination of whether the totality of a defendant's misconduct renders him unfit to...
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