State v. West
| Decision Date | 27 January 2017 |
| Docket Number | No. 16-0345,16-0345 |
| Parties | State of West Virginia, Plaintiff Below, Respondent v. Billy W., Defendant Below, Petitioner |
| Court | West Virginia Supreme Court |
Petitioner and defendant below Billy W., by counsel Earl H. Hager, appeals the March 17, 2016, order entered in the Circuit Court of Mercer County that denied his motion for a new trial following his conviction by a jury of one count of child abuse resulting in serious bodily injury and ordered that he serve an indeterminate term of incarceration of two to ten years. Petitioner also appeals the circuit court's order entered on March 22, 2016, that ordered, inter alia, that petitioner serve a term of supervised release for a period of ten years. The State of West Virginia, by counsel Gordon L. Mowen, II, filed a response in support of the circuit court's orders.
This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.
On May 30, 2014, petitioner's sixth-month old son, C.W., was taken by ambulance to a hospital in Charleston, Kanawha County, West Virginia, where it was determined that he had stopped breathing; bleeding in his brain; several broken ribs; retinal hemorrhages in the back of his eye, extensive bilateral retinal hemorrhages in the middle of his eye, and retinoschisis (i.e., a split retina); and was having severe seizures. According to pediatrician Dr. Joan Phillips, who treated C.W. at the hospital and who is an expert in child abuse physiology, C.W.'s injuries were caused by two separate events. The first, which caused brain damage and internal bleeding, occurred approximately three weeks earlier. Dr. Philips opined that the second, more recent event, which caused the brain hemorrhaging, detached retinas, and broken ribs, occurred within one week of C.W.'s May 30th hospital visit. With regard to the retinal injuries, Dr. Phillips opined that According to Dr. Phillips, C.W.'s broken ribs and seizures were also consistent with child abuse.
An investigation into C.W.'s injuries by police revealed that C.W. was placed in foster care with his siblings because his mother's parental rights had previously been terminated; that the mother had obtained custody of C.W. in January of 2015; that, at that time, petitioner was only permitted to have supervised visitation with C.W.;1 and that, despite this limitation, petitioner began living with the mother and C.W. in April of 2014, and lied to Child Protective Services ("C.P.S.") about his living arrangements. The police investigator determined that petitioner was alone with C.W. when the injuries herein occurred.
In a recorded voluntary statement to police, petitioner admitted that he violated the terms of his limited visitation rights and that he was C.W.'s primary caretaker from April of 2014 through May of 2014. Petitioner told police that, on May 19, 2014 (the first incident), C.W. hit his head on a piece of wood on the couch while petitioner was tossing him into the air; that C.W. began vomiting shortly thereafter; and that a bruise appeared on C.W.'s head the next day. The mother took C.W. to the hospital and, upon his return home, C.W. continued vomiting off and on until May 29, 2014.
Petitioner further admitted that, on May 29 and 30, 2014 (the second incident), he was home alone with C.W. At approximately 5:30 a.m., C.W. began crying, screaming, and vomiting. According to petitioner, he shook C.W. "a little bit" and then C.W. stopped breathing. Petitioner called 9-1-1 at 6:01 a.m.2 The 9-1-1 operator talked petitioner through administering C.P.R. in an effort to resuscitate C.W. Petitioner told police that he "panicked" but did not believe he shook C.W. hard enough to cause retinal hemorrhaging or internal brain bleeding. An ambulance arrived soon thereafter and transported C.W. to the hospital where he was diagnosed as previously described herein.
On June 5, 2015, petitioner was indicted in the Circuit Court of Mercer County on charges of child abuse resulting in serious bodily injury, in violation of West Virginia Code § 61-8D-3(b). Count I stemmed from the incident that occurred earlier in May of 2014, while Count III stemmed from the incident that occurred on May 29 or 30, 2014. Petitioner's co-defendant was C.W.'s mother. Counts II and IV of the indictment charged her with child neglect resulting in injury. The proceedings against the mother were severed from petitioner's and are not at issue in this appeal.3
Petitioner was tried before a jury on June 12 and 13, 2016. At trial, petitioner's recorded statement to police was played for the jury. Petitioner also testified in his own defense. He testified consistently with his statement to police, and also testified he could have broken C.W.'s ribs while performing C.P.R. before the ambulance arrived. Dr. Phillips countered petitioner'stestimony by opining that it was highly unlikely that performing C.P.R. on an infant could have fractured C.W.'s ribs because infants' bones are springy, resilient, and not prone to fractures.
Petitioner was convicted of one count of child abuse resulting in serious bodily injury (Count III). He was acquitted of the remaining count (Count I). On January 21, 2016, petitioner filed a motion for a new trial, which was denied by order entered March 17, 2016. Petitioner was sentenced to two to ten years of incarceration. In a March 22, 2016, order, the circuit court ordered petitioner to serve a term of supervised release for a period of ten years after his period of incarceration, pursuant to West Virginia Code § 62-12-26. This appeal followed.
In his first assignment of error, petitioner argues that the circuit court erred in sentencing him to supervised release for a period of ten years because the clear intent of the statute under which he was sentenced, West Virginia Code § 62-12-26, is that such a penalty applies only to offenses of a sexual nature. Petitioner relies, in particular, upon the statute's title, "Extended supervision for certain sex offenders; sentencing; conditions; supervision provisions; supervision fee," which petitioner contends makes no reference to offenses strictly involving child abuse. Given that he was convicted of one count of child abuse resulting in serious bodily injury, in violation of West Virginia Code § 61-8D-3, petitioner argues that the provisions of West Virginia Code § 62-12-26, requiring the imposition of a period of extended supervised release, were not intended to apply to him.
This appeal presents a question of law involving an interpretation of a statute. As this Court held in syllabus point one of Chrystal R.M. v. Charlie A.L., "[w]here 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." 194 W. Va. 138, 459 S.E.2d 415 (1995).
West Virginia Code § 62-12-26(a) provides, as follows:
Notwithstanding any other provision of this code to the contrary, any defendant convicted after the effective date of this section of a violation of section twelve [§ 61-8-12], article eight, chapter sixty-one of this code or a felony violation of the provisions of article eight-b [§§ 61-8B-1 et seq.], eight-c [§§ 61-8C-1 et seq.], or eight-d [§§ 61-8D-1 et seq.]4of said chapter shall, as part of the sentence imposed at final disposition, be required to serve, in addition to any other penalty or condition imposed by the court, a period of supervised release of up to fifty years: Provided, That the period of supervised release imposed by the court pursuant to this section for a defendant convicted after the effective date of this section as amended and reenacted during the first extraordinary session of the Legislature, 2006, of a violation of section three [§ 61-8B-3] or seven [§ 61-8B-7], article eight-b, chapter sixty-one of this code and sentenced pursuant to section nine-a [§ 61-8B-9a] of said article, shall be no less than ten years: Provided, however, That a defendant designated after the effective date of this section as amended and reenacted during the first extraordinary session of the Legislature, 2006, as a sexually violent predator pursuant to the provisions of section two-a [§15-12-2a], article twelve, chapter fifteen of this code shall be subject, in addition to any other penalty or condition imposed by the court, to supervised release for life: Provided further, That pursuant to the provisions of subsection (g) of this section, a court may modify, terminate or revoke any term of supervised release imposed pursuant to subsection (a) of this section.
(Emphasis and footnote added).
Despite this clear statutory language, petitioner, nonetheless, contrasts his crime involving strictly physical abuse5 with crimes of a sexual nature that are set forth in West Virginia Code §§ 61-8-12 (incest), 61-8B-1 through 18 (various sexual assault and sexual abuse crimes), and §§ 61-8C-1 through 11 (). Petitioner argues that although two provisions included in West Virginia Code §§ 61-8D-1 through 9 are sexual offenses, the remaining provisions involve physical, non-sexual crimes that, he claims, are not intended to subject defendants to the...
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