State v. Turley, 16847

• Decision Date: 13 November 1986
• Docket Number: No. 16847,16847
• Citation: 350 S.E.2d 696,177 W.Va. 69
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Marc TURLEY.

Page 696

350 S.E.2d 696

177 W.Va. 69

STATE of West Virginia v. Marc TURLEY.

No. 16847.

Supreme Court of Appeals of West Virginia.

Nov. 13, 1986.

Syllabus by the Court

1. "Penal statutes must be strictly construed against the State and in favor of the defendant." Syl. pt. 3, State ex rel. Carson v. Wood, 154 W.Va. 397, 175 S.E.2d 482 (1970).

2. Probation statutes are remedial in nature and are to be liberally construed in favor of the defendant.

3. "The general rule of statutory construction requires that a specific statute be given precedence over a general statute relating to the same subject matter where the two cannot be reconciled." Syl. pt. 1, UMWA by Trumka v. Kingdon, --- W.Va. ---, 325 S.E.2d 120 (1984).

4. A person who has attained his or her sixteenth birthday but has not reached his or her twenty-first birthday at the time of the commission of the crime and who is convicted of or pleads guilty to aggravated robbery is eligible for suspension of sentence and commitment to a youthful offender center under W.Va.Code, 25-4-6 [1975].

James B. Lees, Jr., Preiser & Wilson, Charleston, for appellant.

Atty. Gen. Charlie Brown and Asst. Atty. Gen. Mary Rich Maloy, Charleston, for appellee.

McHUGH, Justice:

In this appeal we are presented the narrow question of whether the trial court erred in concluding that it did not have jurisdiction under the youthful offender statute to suspend the sentence of a person, qualified by age, convicted of or having pleaded guilty to aggravated robbery and to commit that person to a youthful offender center for a period not exceeding two years. We hold that the trial court did so err and remand for the trial court to exercise its sound discretion in this matter.

I

The defendant, Marc Turley, was indicted by the Kanawha County grand jury in January, 1984, on two counts of aggravated robbery. The indictment alleged that the appellant committed the acts while "armed with a dangerous and deadly weapon, to-wit, a pistol." The defendant was 18 years old at the time of the alleged offenses in July, 1983.

In August, 1984, pursuant to a plea agreement with the Kanawha County Prosecuting Attorney, the defendant entered a plea of guilty to count I of the indictment. Pursuant to the plea agreement, the prosecutor moved to dismiss count II of the indictment and made no recommendation to the trial court (the Circuit Court of Kanawha County) as to a particular sentence. The trial court in August, 1984, accepted the defendant's plea of guilty to count I of the indictment and dismissed count II of the indictment. The trial court expressly found on the record that the defendant had used a pistol in the commission of the crime to which he had pleaded guilty.

In January, 1985, the defendant was sentenced to the state penitentiary for a determinate term of ten years. He is presently serving his sentence in the state penitentiary.

The appellant filed this appeal of the trial court's determination that it had no authority to suspend the appellant's sentence and to commit him to a youthful offender center, pursuant to W.Va.Code, 25-4-6 [1975], because the appellant had pleaded guilty to aggravated robbery, a criminal offense punishable by life imprisonment by decisions of this Court.

II

W.Va.Code, 25-4-6 [1975] provides that a trial court may suspend the imposition of sentence of any youth convicted of or pleading guilty to a criminal offense, other than an offense punishable by life imprisonment, who has attained his or her sixteenth birthday but has not reached his or her twenty-first birthday at the time of the commission of the crime, and commit the youthful offender to a youthful offender center for a period of not more than two years. Upon the completion of his or her period of confinement in such a center, the youthful offender is returned to the jurisdiction of the committing court and such court must immediately place the offender on "probation," unless such offender has proven to be unfit to remain in such a center and, therefore, has not satisfactorily completed the center training program, in which case the court may place the offender on "probation" or impose sentence. ¹

Under W.Va.Code, 61-2-12 [1961], a person convicted of committing or attempting to commit aggravated robbery "shall be confined in the penitentiary not less than ten years." ² This particular statute thus imposes a minimum, but not an expressly stated maximum, sentence of confinement for conviction of this offense. This Court and the federal courts have, though, held or recognized that the legislature, by not expressly fixing a maximum term, has impliedly authorized life imprisonment as the maximum penalty for aggravated robbery for the purpose of sentencing. See State v. Cooper, --- W.Va. ---, ---, 304 S.E.2d 851, 854-55 (1983); Thomas v. Leverette, --- W.Va. ---, ---, 273 S.E.2d 364, 367 (1980); State ex rel. Faircloth v. Catlett, 165 W.Va. 179, 180-81, 267 S.E.2d 736, 737 (1980); Conley v. Dingess, 162 W.Va. 414, 416, 250 S.E.2d 136, 137 (1978), and the cases cited therein, overruled on another point, State ex rel. Faircloth v. Catlett, 165 W.Va. 179, 179, 267 S.E.2d 736, 736 (1980).

Nonetheless, for other crimes the legislature has expressly provided for life imprisonment as the penalty or the maximum penalty. See, for example, W.Va.Code, 61-1-2 [1965] (treason), W.Va.Code, 61-2-2 [1965] (murder of the first degree), W.Va.Code, 61-2-14a [1965] (kidnapping involving bodily harm), W.Va.Code, 62-8-2 [1965] (certain offenses by convicts).

Noting the structural difference in the statutory language in these other criminal penalty provisions as compared with that used in the aggravated robbery statute, this Court has held that aggravated robbery is not "punishable" by life imprisonment for the purpose of eligibility for post-conviction bail under W.Va.Code, 62-1C-1(b) [1965, 1983], so that, unless the convicted person has been sentenced to a life imprisonment term for aggravated robbery, he or she is eligible for post-conviction bail. State ex rel. Faircloth v. Catlett, 165 W.Va. 179, 267 S.E.2d 736 (1980), overruling Conley v. Dingess, 162 W.Va. 414, 250 S.E.2d 136 (1978). Similarly, in Thomas v. Leverette, --- W.Va. ---, 273 S.E.2d 364 (1980), overruling Lycans v. Bordenkircher, 159 W.Va. 137, 222 S.E.2d 14 (1975), we noted again the lack of express provision for a life term for aggravated robbery and held that aggravated robbery is not a "capital offense" for the purpose of W.Va.Code, 49-5-3 [1975], excluding from the juvenile jurisdiction of the circuit court juveniles charged with the commission of acts which would be "capital offenses" (punishable by death or life imprisonment) if committed by an adult. ³

An important elementary principle which is applicable here is that a criminal statute must be strictly construed. "Penal statutes must be strictly construed against the State and in favor of the defendant." Syl. pt. 3, State ex rel. Carson v. Wood, 154 W.Va. 397, 175 S.E.2d 482 (1970). See also Ray v. Mangum, --- W.Va. ---, ---, 346 S.E.2d 52, 54 (1986); syl. pt. 1, State v. Carper, --- W.Va. ---, 342 S.E.2d 277 (1986), and the several cases cited at page 280. In Myers v. Murensky, 162 W.Va. 5, 245 S.E.2d 920 (1978), overruled on another point, syl. pt. 2, State v. Myers, --- W.Va. ---, 298 S.E.2d 813 (1982), the Court elaborated on this point:

The Court is not at liberty to consider the intent or purpose of a criminal statute to the extent possible in other areas of the law where the Legislature's intent is not precisely expressed.... 'It [the penal statute] does not apply to a thing within its spirit, and not within its letter.'

162 W.Va. at 8-9, 245 S.E.2d at 922 (citation omitted).

Moreover, the legislature has authorized the courts to consider special treatment of youthful offenders, and this policy should be followed unless expressly foreclosed by the legislature. The legislature could foreclose eligibility for youthful offender treatment by expressly providing in the aggravated robbery statute for a maximum sentence of life imprisonment. Until it does so, we will not infer such an intent to thwart the obvious purpose of the legislature to treat most youthful offenders in a special manner, with the overriding concern being reformation or rehabilitation of such offenders. ⁴

The State in this case argues that two provisions of the general probation statute indicate that a person convicted of aggravated robbery, especially one who has used a firearm, is not eligible for youthful offender treatment under W.Va.Code, 25-4-1 [1955], et seq. ⁵

First, W.Va.Code, 62-12-2(a) [1981, 1986] provides in pertinent part that "[a]ll persons ... who are found guilty of or plead guilty to any felony, the maximum penalty for which is less than life imprisonment, ..., shall be eligible for probation, ..." The State argues that a person convicted of aggravated robbery is not eligible for probation because aggravated robbery is punishable by life imprisonment by court decisions, as discussed earlier in this opinion. We conclude that this argument is without merit, for, as discussed earlier in this opinion, aggravated robbery is not expressly by statute punishable by life imprisonment, and penal statutes must be strictly construed. Furthermore, probation statutes are remedial in nature and are to be liberally construed in favor of the defendant. State v. Wotring, --- W.Va. ---, ---, 279 S.E.2d 182, 192 (1981); State ex rel. Hanley v. Hey, 163 W.Va. 103, 106, 255 S.E.2d 354, 355, cert. denied, 444 U.S. 928, 100 S.Ct. 269, 62 L.Ed.2d 185 (1979). This Court stated this proposition in the following manner in State ex rel. Simpkins v. Harvey, --- W.Va. ---, 305 S.E.2d 268 (1983): "[T]he Legislature has granted trial courts discretion to consider probation in any case where [certain statutory language authorizes the same and] no specific statutory language forbids probation, ..." --- W.Va. at ---, 305...