State v. Richards

• Citation: 526 S.E.2d 539,206 W.Va. 573
• Decision Date: 13 December 1999
• Docket Number: No. 26349.,26349.
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Michael Von RICHARDS, Defendant Below, Appellant.

526 S.E.2d 539

206 W.Va. 573

STATE of West Virginia, Plaintiff Below, Appellee, v. Michael Von RICHARDS, Defendant Below, Appellant.

No. 26349.

Supreme Court of Appeals of West Virginia.

Submitted October 6, 1999.

Decided December 13, 1999.

Concurring Opinion of Chief Justice Starcher January 6, 2000.

George J. Cosenza, Esq., William O. Merriman, Esq., Cosenza, Underwood & Merriman, Parkersburg, West Virginia, Attorneys for Appellant.

Darrell V. McGraw, Jr., Attorney General, Dawn E. Warfield, Deputy Attorney General, Charleston, West Virginia, Attorneys for Appellee.

McGRAW, Justice:

This case involves a determination of whether West Virginia's Youthful Offender Act (the "Act"), W. Va.Code §§ 25-4-1 to -12, permits a trial court to increase a defendant's original sentence upon the revocation of probation. Valid policy arguments favoring flexibility in this area notwithstanding, we conclude that the Act expressly forecloses such action.

I. FACTUAL AND PROCEDURAL BACKGROUND

Michael Richards pleaded guilty to two counts of aggravated robbery under W. Va. Code § 61-2-12 (1961), and was sentenced in October 1996 to two concurrent 18-year terms of imprisonment. In January 1997, Richards filed a motion for reduction of sentence pursuant to W. Va. R.Crim. P. 35(b), seeking either probation or placement in the youthful offender program as authorized by the Act. The circuit court subsequently set aside Richards' original sentence, and ordered that he be committed to the Anthony Correctional Center for youthful offenders pursuant to W. Va.Code § 25-4-6 (1975).

Richards successfully completed the program at Anthony, and upon return to the circuit court in February 1998, was placed on three years probation. However, less than five months into the probationary period, the State filed a revocation petition alleging seven violations of the conditions of his probation.¹ The circuit court revoked Richards' probation on October 30, 1998, and sentenced him to two concurrent 25-year terms.² Richards now challenges the lower court's decision to increase his original sentence.

II. DISCUSSION

The Youthful Offenders Act sets forth a comprehensive set of substantive and procedural rules governing the sentencing of adult-jurisdiction offenders under the age of twenty one. The Act grants discretionary authority to the circuit courts to suspend imposition of sentence, and place a qualifying defendant in a program of rehabilitation at a youthful-offender center. Following successful completion of the program, the circuit court has a mandatory obligation to place the defendant on probation. At all times relevant to this case, the Act specified that in the event probation is subsequently revoked, the defendant "shall be given the sentence he would have originally received had he not been committed to the center and subsequently placed on probation." W. Va.Code § 25-4-6 (1975).³ Richards contends that this provision prohibits a court from increasing a defendant's original sentence in the event probation is revoked.⁴ We agree with Richards that the circuit court's final sentencing action violated § 25-4-6.

"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). Thus, because this case turns exclusively upon an interpretation of the legal requirements of § 25-4-6, we undertake plenary review of the circuit court's action.

As we stated in Syllabus point one of Sowa v. Huffman, 191 W.Va. 105, 443 S.E.2d 262 (1994), "`[a] statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.' Syl. pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951)." In this case, the language of § 25-4-6 clearly precludes a court from imposing a harsher sentence based upon conduct postdating the defendant's commitment to the youthful offender program. The use of the word "shall" makes the statute's requirement mandatory rather than directory. See Syl. pt. 3, Bounds v. State Workmen's Compensation Comm'r, 153 W.Va. 670, 172 S.E.2d 379 (1970) ("`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.'") (quoting Syl. pt. 2, Terry v. Sencindiver, 153 W.Va. 651, 171 S.E.2d 480 (1969)); Syl. pt. 1, Nelson v. West Virginia Pub. Employees Ins. Bd., 171 W.Va. 445, 300 S.E.2d 86 (1982).

We confronted a similar question in State v. Patterson, 170 W.Va. 721, 296 S.E.2d 684 (1982). In Patterson, the defendant pleaded guilty to shoplifting, and was sentenced to one-to-ten years imprisonment. Sentence was later suspended and the defendant committed to the youthful offender program pursuant to the Act. Like Richards in the present case, the defendant in Patterson successfully completed the program and was placed on probation; however, after he later pleaded guilty to shoplifting and petit larceny, probation was revoked and the original sentence executed. This Court subsequently upheld the circuit court's refusal to once again sentence the defendant as a youthful offender, stating that "W. Va.Code, 25-4-6, does not allow a trial court discretion to impose any less than the original sentence when a male defendant, who has served at a youth correctional facility, violates his probation agreement." Syllabus, Patterson, supra. See also State v. Martin,

196 W.Va. 376, 472 S.E.2d 822 (1996) (per curiam) (holding that mandatory imposition of original sentence pursuant to § 25-4-6 following revocation of probation did not violate proportionality requirement of W. Va. Const, art. III, § 5).

The reasoning of Patterson applies in the present case: In the event probation is revoked following a defendant's successful completion of the youthful offender program, a circuit court has no discretion under § 25-4-6 to do anything but impose the sentence that was, or otherwise would have been, originally handed down. While our previous cases involving this subject have dealt only with the circumstance of where a defendant seeks a lesser sentence than originally imposed, the rigid command of § 25-4-6 applies with equal force in the present context. At the very least, the statute removes as a permissible sentencing factor conduct that follows a defendant's successful completion of the youthful offender program and placement on probation.⁵

The State advances sound policy arguments justifying the circuit court's action in the present case, asserting that "if a defendant is made aware that his imposed but suspended sentence may be increased should he violate the terms and conditions of his probation, he will be less likely to violate these terms than if he knows that a probation violation will result only in incarceration for the term of the suspended sentence." As the Oregon Supreme Court similarly observed, "[t]he possibility of an increased punishment is a deterrent to violation of probation. It is in the best interest of all the probationer, law enforcement agencies, and the public that probationers do not violate the terms of probation." State v. Holmes, 287 Or. 613, 619, 601 P.2d 1213, 1215 (1979); see also Smith v. State, 261 Ind. 510, 514-15, 307 N.E.2d 281, 283 (1974)

("[I]f courts are to be encouraged to give suspended sentences, they must be given the latitude allowed within the plain wording of the statute to insure that a defendant accepting the terms of probation will do so with full realization of the gravity of the consequences of the violation of that probation."). However compelling this argument may be, the wording of § 25-4-6 simply does not support it.⁶

We have previously indicated that "[t]he plain meaning of legislation should be conclusive, except in the rare cases in which the literal application of a statute will produce a result demonstrably at odds with the intentions of the drafters." Hutchison v. City of Huntington, 198 W.Va. 139, 150, 479 S.E.2d 649, 660 (1996) (citation and internal quotation marks omitted). Although it would be reasonable to speculate that the Legislature's primary intent in wording § 25-4-6 as it did was merely to ensure that predictable repercussions would ensue following a defendant's violation of probation, our literal interpretation of the statute in this instance does not produce such illogical or absurd consequences so as to compel some alternative construction. "`[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there.'" Martin v. Randolph County Bd. of Educ., 195 W.Va. 297, 312, 465 S.E.2d 399, 414 (1995) (quoting Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391, 397 (1992)). As we have stressed on numerous occasions, "[i]t is not the province of the courts to make or supervise legislation, and a statute may not, under the guise of interpretation, be modified, revised, amended, distorted, remodeled, or rewritten[.]" State v. General Daniel Morgan Post No. 548, V.F.W., 144 W.Va. 137, 145, 107 S.E.2d 353, 358 (1959) (citation omitted). See also Syl. pt. 3, in part, West Virginia Health Care Cost Review Auth. v. Boone Mem. Hosp., 196 W.Va. 326, 472 S.E.2d 411 (1996) ("If the language of an enactment is clear and within the constitutional authority of the lawmaking body which passed it, courts must read the relevant law according to its unvarnished meaning, without any judicial embroidery.").

Consequently, we hold that where a criminal defendant has been placed on probation after successfully completing a program of rehabilitation under the Youthful Offenders Act, and such probation is subsequently revoked, the circuit court has no discretion under § 25-4-6 to impose anything other than the sentence that the...