State v. McClain, No. 29839.

• Court: Supreme Court of West Virginia
• Writing for the Court: ALBRIGHT, Justice
• Docket Number: No. 29839.
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Robert F. McCLAIN, Defendant Below, Appellant.
• Decision Date: 21 February 2002

561 S.E.2d 783
211 W.Va. 61

STATE of West Virginia, Plaintiff Below, Appellee,
v.
Robert F. McCLAIN, Defendant Below, Appellant

No. 29839.

Supreme Court of Appeals of West Virginia.

Submitted January 15, 2002.

Decided February 21, 2002.

Dissenting Opinion of Chief Justice Davis March 27, 2002.

Concurring Opinion of Justice Starcher March 29, 2002.

561 S.E.2d 785

Darrell V. McGraw, Jr., Attorney General, Janet E. James, Assistant Attorney General, Charleston, West Virginia, Attorneys for the appellee

Richard E. Holicker, Public Defender Corporation, Charleston, West Virginia, Attorney for the appellant.

561 S.E.2d 784

ALBRIGHT, Justice

Robert McClain (hereinafter "Appellant") appeals the April 13, 2001, order of the Kanawha County Circuit Court denying his motion, filed pursuant to Rule 35 of the Rules of Criminal Procedure, to correct the sentence imposed after he pled guilty to the offense of leaving the scene of an accident which resulted in death. Appellant specifically argues that the trial court's refusal to grant him credit for the time he served in jail before he was convicted due to the fact that he could not meet the bail requirements for pretrial release amounted to violation of the equal protection and double jeopardy clauses of the West Virginia Constitution. Based upon the briefs and arguments of the parties and a full review of the record, we remand this case with direction to amend the sentencing order so as to provide credit for the time Appellant spent in jail before his conviction.

I. Factual and Procedural Background

On the night of September 2, 2000, Appellant was driving with a female companion in his car when, during the course of an argument with the companion, Appellant felt his car hit something which he guessed was a dog or other animal. After stopping his vehicle and detecting nothing in his rearview mirror, Appellant proceeded on his way. In his statement to the police, Appellant said that the next morning he noticed that the car's passenger side headlight was damaged and the hood of the car was dented. Four days after this incident, the body of Richard Parry was found on the side of the road in the vicinity where Appellant was driving.

According to Appellant, although he decided to contact the authorities when he heard about the discovery of Mr. Parry's body in the area where he had been driving, the police arrested him before he could do so. Following his arrest on September 7, 2000, Appellant was charged in magistrate court with feloniously driving and operating a motor vehicle and leaving the scene of an accident from which death resulted. During the initial appearance before the magistrate, Appellant waived a preliminary hearing and thereafter was committed to the regional jail because he was unable to satisfy the $150,000 bail fixed by the magistrate. Appellant filed a motion for reduction of bail in the circuit court on September 21, 2000, requesting specifically that bail be set at not more than $20,000.

The grand jury returned an indictment during the September 2000 term of court, charging Appellant with leaving the scene of an accident resulting in death and operating a motor vehicle while his license was suspended for driving under the influence (hereinafter "DUI"). Appellant was arraigned on these charges on November 22, 2000, at which time the lower court set the date for trial and continued bail, but at the reduced amount of $75,000. Appellant still could not satisfy the new bail amount established by the circuit court, so he was returned to jail to await trial on January 2, 2001.

On the day of trial and pursuant to the terms of a plea agreement, Appellant tendered to the court a plea of guilty to the charge of leaving the scene of an accident resulting in death. In return for Appellant's guilty plea, the State recommended probation and moved to dismiss the charge of driving on a license suspended for DUI. The lower court accepted Appellant's guilty plea on January 2, 2001, and at that time also set the sentencing hearing for March 30, 2001, and fixed the amount of post-conviction bail at $20,000. Appellant was able to post the requisite bond at this point, and was released from custody after spending 119 days in jail.

As detailed in the March 30, 2001, sentencing order, the lower court, acting sua sponte, suspended the imposition of sentence and

561 S.E.2d 786

released Appellant on probation for a period of three years with one of the conditions of probation being that Appellant spend six months confined in the regional jail during the probationary period. The sentencing court explained during the sentencing hearing that Appellant was not given credit for the 119 days he spent in jail awaiting trial because the six-month incarceration condition was not the sentence, but a part of probation. The sentencing judge added: "If he were sentenced to the penitentiary, he would get credit for the one hundred and nineteen (119) days he served. As a condition of probation, he is not getting credit for those days." Appellant challenged the circuit court's decision not to give him credit for the time he served in jail awaiting trial by filing a motion on April 9, 2001, to correct the sentence pursuant to Rule 35(a) of the Rules of Criminal Procedure.¹ Without conducting a hearing, the lower court denied the motion to correct the sentence by order entered April 13, 2001. It is from this order that the instant appeal is taken

II. Standard of Review

As a general rule, the sentence imposed by a trial court is not subject to appellate review. However, in cases as the one before us in which it is alleged that a sentencing court has imposed a penalty beyond the statutory limits or for impermissible reasons, appellate review is warranted. Syl. Pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982). Once an appropriate basis for review is established, this Court applies a three-prong standard of review to issues involving motions made pursuant to Rule 35 of the West Virginia Rules of Criminal Procedure: "We review the decision on the Rule 35 motion under an abuse of discretion standard; the underlying facts are reviewed under a clearly erroneous standard; and questions of law and interpretations of statutes and rules are subject to a de novo review." Syl. Pt. 1, in part, State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).

III. Discussion

This appeal involves a challenge to the penalty prescribed by the lower court for the felony offense of leaving the scene of an accident resulting in the death of a person for which a person upon conviction "may be confined in a correctional facility for not more than three years." W.Va.Code § 17C-4-1 (1999) (Repl.Vol.2000).² Although Appellant's argument centers on violation of his rights under the state constitution because the sentencing court refused to credit him with the 119 days he served in jail, we would be remiss in carrying out our constitutional duty if we did not first examine the question fairly arising on the record of whether the underlying penalty was a correctly imposed alternative punishment in light of the pertinent statute governing probation conditions. W.Va. Constit. art. VIII, § 4.³

The mandatory and discretionary conditions related to probation are set forth in West Virginia Code § 62-12-9 (2001)

561 S.E.2d 787

(Supp.2001).⁴ One of the allowable discretionary conditions of probation delineated in this statute is confinement in jail during the term of probation for "a period not to exceed one third of the minimum sentence established by law or one third of the least possible period of confinement in an indeterminate sentence, but in no case may the period of confinement exceed six consecutive months." W.Va.Code § 62-12-9(b)(4). We previously recognized in State v. White, 188 W.Va. 534, 425 S.E.2d 210 (1992), that this statutory provision reflects the Legislature's intent to restrict the discretion of the trial court with regard to the amount of time a probationer may be confined to jail as a condition of probation. Id. at 536, 425 S.E.2d at 212. In White we were faced with a situation where the relevant penalty statute did not contain a minimum sentence nor was an indeterminate sentence involved. However, the trial court had imposed and suspended a twelve-month sentence to a correctional facility before placing White on probation. We concluded in White that, in order to give effect to West Virginia Code § 62-12-9(b)(4), the twelve-month sentence actually imposed by the court was an acceptable basis on which the statutorily prescribed one-third calculation could be made. Id. at 536, n. 3, 425 S.E.2d at 212, n. 3. We now have before us a somewhat different situation: like the circumstances in White, we are dealing with a penalty statute that involves neither an indeterminate sentence nor a minimum sentence; however, unlike White, the sentencing judge exercised his option under West Virginia Code § 62-12-3 (1988) (Repl.Vol.2000),⁵ to delay imposing a sentence when he granted Appellant probation as an alternative punishment. Consequently, we are faced with the task of resolving the resulting ambiguity by determining whether the Legislature intended to curtail the lower court's discretion in imposing jail as a condition of probation in cases where a penalty statute does not involve a minimum sentence or an indeterminate sentence and no specific sentence is established by the terms of the sentencing order. We approach our task of ascertaining legislative intent of these ambiguous statutory provisions guided by the general process and principles of statutory construction embodied in syllabus point five of State v. Snyder, 64 W.Va. 659, 63 S.E. 385 (1908):

A statute should be 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

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