State v. Smith

• Decision Date: 19 December 1996
• Docket Number: No. 23312,23312
• Citation: 198 W.Va. 702,482 S.E.2d 687
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Betty Jane SMITH, Defendant Below, Appellant.

Page 687

482 S.E.2d 687

198 W.Va. 702

STATE of West Virginia, Plaintiff Below, Appellee, v. Betty Jane SMITH, Defendant Below, Appellant.

No. 23312.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 24, 1996.

Decided Dec. 19, 1996.

[198 W.Va. 704] Syllabus of the Court

1. Pursuant to West Virginia Code § 27-6A-3 (Supp.1996), to calculate the length of time a court may retain its jurisdiction in cases of acquittal by reason of mental illness, the court first must decide on the record what offense the acquittee otherwise would have been convicted and, then, determine the maximum sentence the acquittee could have received for that offense. Next, the court shall commit the acquittee to a mental health facility under the jurisdiction of the Division of Health, with the court retaining jurisdiction over the defendant for the maximum sentence period.

2. West Virginia Code §§ 27-6A-3 and -4 (Supp.1996), read in pari materia, generally provide a court flexibility in exercising and retaining its jurisdiction up to the maximum sentence period, with consideration given to the current mental state and dangerousness of a person found not guilty by reason of mental illness. If not sooner terminated by the court, its jurisdiction automatically will expire at the end of the maximum sentence period.

3. "Under ex post facto principles of the United States and West Virginia Constitutions, a law passed after the commission of an offense which increases the punishment, lengthens the sentence or operates to the detriment of the accused, cannot be applied to him." Syl. Pt. 1, Adkins v. Bordenkircher, 164 W.Va. 292, 262 S.E.2d 885 (1980).

4. The purpose of West Virginia Code § 27-6A-3 (Supp.1996) is not to punish someone suffering a mental illness; rather, it is to treat the illness and protect society. If someone is found not guilty by reason of mental illness, there is no conviction to warrant a punishment. Consequently, ex post facto principles typically are not invoked by the commitment of an insanity acquittee.

5. " 'It is well settled as a general rule that the question of continuance is in the sound discretion of the trial court, which will not be reviewed by the appellate court, except in case it clearly appears that such discretion has been abused. Syl. Pt. 1, Levy v. Scottish Union & Nat. Ins. Co., 58 W.Va. 546, 52 S.E. 449 (1905).' Syl. Pt. 2, Nutter v. Maynard, 183 W.Va. 247, 395 S.E.2d 491 (1990)."

Daynus Jividen, Senior Assistant Attorney General, Charleston, for Appellee.

Thomas W. Murtaugh, Union, for Appellant.

WORKMAN, Justice:

The defendant below and Appellant herein, Betty Jane Smith (hereinafter Appellant), appeals ¹ the final order of the Circuit Court of Monroe County, entered on January 26, 1996, which amended the circuit court's prior order entered on June 30, 1995. In its June 30, 1995, order, the circuit court found Appellant not guilty by reason of mental illness, and it determined that, but for her mental illness, Appellant would be guilty of murder of the second degree. Therefore, the circuit court stated it would maintain jurisdiction over Appellant for forty years which the circuit court believed was the maximum sentence Appellant could receive for murder of On appeal, Appellant raises three assignments of error. ⁴ First, Appellant argues the circuit court abused its discretion by continuing her case until after the amended version of West Virginia Code § 27-6A-3 (1992 & Supp.1996) ⁵ took effect. Second, Appellant asserts the circuit court violated the ex post facto provisions of Article I, Section 10 of the United States Constitution ⁶ and Article III, Section 4 of the West Virginia Constitution ⁷ by applying the amended statute. Third, Appellant argues the amended version of West Virginia Code § 27-6A-3 is unconstitutional.

                [198 W.Va. 705] the second degree. 2  It further ordered Appellant be committed to Weston State Hospital or other facility selected by the Division of Health 3 for that time period or until the Division of Health makes a report that Appellant "is no longer a danger to herself or others and/or that her condition can be treated outside of a mental health facility with a plan of treatment and viable monitoring plan for such treatment."   Additionally, the circuit court directed that a report be filed with the court on Appellant every six months by either the Division of Health or the commitment facility
                

I. FACTUAL AND PROCEDURAL HISTORY

On May 31, 1994, Appellant shot and killed her husband, Fred Smith. For several years before the killing, Appellant suffered from varying degrees of mental illness that resulted in hospitalization in 1990 at Roanoke Memorial Hospital in Virginia. In her discharge report from the hospital, Appellant was diagnosed with schizophreniform disorder.

[198 W.Va. 706] On May 30, 1994, Mr. Smith took Appellant back to Roanoke Memorial Hospital for voluntarily admission to its rehabilitation facility for treatment of Appellant's mental illness. According to the hospital report, Mr. Smith apparently "became impatient with having to wait [and] took his wife home...." Mr. Smith died the following day when Appellant, apparently in a delusional state, shot him at their house.

Following Appellant's arrest, the circuit court ordered her to undergo forensic evaluations. After reviewing the preliminary psychiatric report filed by Lee L. Neilan, M.D., and the psychological report filed by Robert W. Solomon, Ed.D., the circuit court entered an order on July 28, 1994, finding Appellant may be incompetent to stand trial and may not have been criminally responsible when the crime was committed. Therefore, the circuit court ordered Appellant to undergo hospitalization for up to six months with further independent evaluations and an improvement period related to her competency to stand trial and her ability to assist in her own defense. By order entered on February 9, 1995, the circuit court found Appellant was competent to stand trial.

By a report dated March 28, 1995, Dr. Neilan diagnosed Appellant with Bipolar Affective Disorder with Psychotic Features. Dr. Neilan stated Appellant relayed to him that she shot her husband because " '[s]omething told [her] there would be peace in the world if [she] killed him.' " (Emphasis deleted). Dr. Neilan opined Appellant is competent to stand trial but was not responsible at the time of the murder.

At a hearing held on April 17, 1995, the prosecuting attorney, Debra L. Dalton, apparently advised the circuit court off the record that the State did not believe it could prove the criminal intent necessary to get a conviction. ⁸ In light of the evidence, Appellant moved that a trial be held without a jury on May 2, 1995. The prosecuting attorney stated she could be prepared to handle the matter on that day. The circuit court took the motion under advisement, but said it would not decide the matter until it determined the status of the procedures to be employed when a defendant is found not guilty by reason of mental illness under West Virginia Code § 27-6A-3. The circuit court thought this statute recently was amended and believed the amended version of the statute would apply to Appellant.

By stipulation filed with the circuit court on April 26, 1995, Appellant and the prosecuting attorney agreed, inter alia, that Appellant committed the acts for which she was indicted, she did not commit the acts with malicious or criminal intent because of insanity, and, therefore, she was not responsible for the acts due to her mental illness. On its own motion, the circuit court entered an order on May 2, 1995, causing the case to be continued until May 19, 1995, because the circuit court had not procured a copy of the amended version of the statute.

A hearing was held on May 19, 1995, and the circuit court informed the parties that the purpose of the hearing was to have a status conference on what impact the amended statute would have on Appellant if she is found not guilty by reason of mental illness. The circuit court said it understood the amended version of the statute would go into effect on June 11, 1995, and believed the day the statute is applied to Appellant would control what version of the statute to use. The circuit court based this opinion, in part, on its belief that this statute is civil and not punitive in nature. The circuit court also said it was the intent of the West Virginia Legislature that the courts use the amended version to maintain jurisdiction over these types of cases. Appellant moved the circuit court either to resolve the matter against her forthwith or hold another hearing on June 5, 1995, to resolve it before the effective date of the amendment. The circuit court denied Appellant's motion and set the next hearing for a date after the amendment took effect. The circuit court noted Appellant's objection to this decision.

The hearing was held on June 30, 1996. Appellant moved the circuit court to apply Approximately six and one-half months later, by order entered January 17, 1996, Appellant was released from Sharpe State Hospital to live with her sister and participate in community-based treatment. However, this order contained a number of restrictions on Appellant, including that she must take all prescribed medications, shall submit at least once a month to blood testing and more if deemed appropriate, and shall attend "basic living skill's program and/or counseling" as directed. The circuit court also stated it should be advised of Appellant's status by written reports every six months and be made aware immediately of any behavior or conduct whereby Appellant is likely to endanger herself or others.

[198 W.Va. 707] the previous version of the statute. This motion was denied because of the reasons previously stated and because the circuit court did not consider the statute as punitive. Rather, the circuit court viewed the amended statute as a way to ensure Appellant would get the...