Watson v. Whyte

• Decision Date: 11 July 1978
• Docket Number: No. 14120,14120
• Citation: 245 S.E.2d 916,162 W.Va. 26
• Court: West Virginia Supreme Court
• Parties: David Glenn WATSON v. William WHYTE, Superintendent, Huttonsville Correctional Center.

Page 916

245 S.E.2d 916

162 W.Va. 26

David Glenn WATSON v. William WHYTE, Superintendent, Huttonsville Correctional Center.

No. 14120.

Supreme Court of Appeals of West Virginia.

July 11, 1978.

Syllabus by the Court

1. Due process requires that a person convicted of a crime and sentenced to punishment therefor be given an evidentiary hearing prior to an increase in his sentence or an increase in the severity of his confinement environment, whenever the change is predicated upon misbehavior.

2. A youthful male offender, sentenced to confinement in a special center pursuant to W.Va.Code, 25-4-6, is entitled to an evidentiary hearing when he is returned, as unfit, to the sentencing court and faces resentencing to the penitentiary; and he is entitled to counsel to assist him in the hearing before the sentencing court.

J. Cecil Jarvis, McNeer, Highland & McMunn, Clarksburg, for relator.

Chauncey H. Browning, Jr., Atty. Gen., Gregory W. Bailey, Asst. Atty. Gen., Charleston, for respondent.

HARSHBARGER, Justice:

David Glenn Watson pleaded guilty to entering without breaking and was sentenced by the Circuit Court of Harrison County to the custody of the Commissioner of Public Institutions under W.Va.Code, 25-4-6, ¹ for an indeterminate term of six-months to two-years' confinement in a "center." ²

He was sent to Davis Forestry Center, and remained there from March until September of 1977. Then the center superintendent notified the sentencing court that petitioner was unfit for the center and requested that he be returned to court. This was done, and on September 14, 1977, a "hearing" was held after which he was sentenced to the West Virginia Penitentiary for an indeterminate term of one-to-ten years with the recommendation that he be considered for parole at the earliest opportunity.

A letter ³ from the superintendent was the only "evidence" introduced at the hearing, and petitioner's counsel unsuccessfully moved to dismiss the proceeding because of the failure of the state to produce any evidence.

Petitioner contends that his transfer from the Davis Center involved loss of a liberty interest which should have invoked the due process protections of the U. S. Constitution's Fourteenth Amendment, ⁴ and that his hearing was inadequate.

The United States Supreme Court has found due process standards applicable in several post-conviction situations including parole revocations, Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); probation revocations, Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); and prison disciplinary proceedings, Wolff v. McDonnell, 418 U.S 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). ⁵ In Wolff, the court said:

(A) person's liberty is equally protected, even when the liberty itself is a statutory creation of the State. The touchstone of due process is protection of the individual against arbitrary action of government, Dent v. West Virginia, 129 U.S. 114, 123, 9 S.Ct. 231, 32 L.Ed. 623 (1889). Since prisoners in Nebraska can only lose good-time credits if they are guilty of serious misconduct, the determination of whether such behavior has occurred becomes critical, and the minimum requirements of procedural due process appropriate for the circumstances must be observed. 418 U.S. at 558, 94 S.Ct. at 2976.

However, the Supreme Court in Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), decided that state prisoners have no constitutional right to hearings in federal courts about proposed transfers to other state institutions. The transfers were to more severe prison environments (but involved no extension of "time"). The Court reasoned that when a criminal defendant is convicted, he is deprived of his liberty to the extent that the state can put him in its prison system anywhere it chooses, and he cannot thereafter complain upon being shifted from one institution to another. "The conviction has sufficiently extinguished the defendant's liberty interest to empower the State to confine him in any of its prisons."

We cannot agree with the black-and-white characterization of the liberty status of convicted criminals that the Court adopted, making them, as Justice Stevens mentioned in his perceptive dissent, slaves of the state. ⁶

Our federal and state constitutions do not give liberty to people: they protect a free people from deprivation of their God-given freedom by governments. The entitlement to liberty and freedom must follow every citizen from birth to death, however mean or degenerate he may be viewed by his government or his peers at any given time along the way.

And so, the physical deprivation of his liberty must at every stage carry the burden upon the state to overcome the great presumption that he is a free man. His constitutional rights follow him into prison, or mental hospital, or military servitude, or wherever he is forced by the government to be.

Therefore, although it is true that restrictions upon liberty are implicit in the penal system, each must be imposed reluctantly; and new ones, with due process of law.

Our Court has also held minimum due process requirements applicable to parole revocation, Dobbs v. Wallace, W.Va., 201 S.E.2d 914 (1974); probation revocation, State ex rel. Strickland v. Melton, 152 W.Va. 500, 165 S.E.2d 90 (1968); and administrative segregation of prisoners from the prison population, Tasker v. Griffith, W.Va., 238 S.E.2d 229 (1977), and although we have no cases dealing with procedural due process in the context of prison disciplinary proceedings, we cited with approval in Tasker, the due process requirements of Wolff v. McDonnell, supra. ⁷

This case is analogous to Wolff in that petitioner's claim springs from a state-created situation, and applying the principles of that case, we find that when the government has proceeded against an offender under Code, 25-4-6, and sentenced him to a forestry center, it cannot arbitrarily abrogate the right to remain there. See, Inmates of Boys' Training School v. Affleck, 346 F.Supp. 1354 (D.R.I.1972) involving the transfer of juveniles from a training school to an adult correctional facility. See also the following cases in which due process requirements have been found applicable to transfers: Aikens v. Lash, 371 F.Supp. 482 (N.D.Ind.1974); Shone v. State of Maine, 406 F.2d 844 (1st Cir. 1969); Hatzman v. Reid, 80 Misc.2d 808, 364 N.Y.S.2d 396 (1975).

In Tasker, we found that due process safeguards are applicable to the procedures involved in removing an inmate from the general prison population and placing him in "administrative" segregation. ⁸ If internal transfers such as those in Tasker from one restrictive environment to another more restrictive environment inside the prison require due process protections, then transfers from one penal setting to another more severe confinement, require due process. Although an offender has no right to be confined to a particular institution in the State ⁹ and no right to initially choose where he is sentenced under Code, 25-4-6, if he is sentenced to the casual confinement of a "forestry center" he cannot then be transferred as unfit, to the penitentiary, without a hearing.

We recognize that there is contrary authority. In People v. Ferrel, 25 Cal.App.3d 970, 102 Cal.Rptr. 372 (1972), the court interpreted a California statute very similar to our own code provision for return of youthful offenders to the original court, ¹⁰ and held that no hearing was required when the California Youth Authority rejected the defendant. The Court said:

" . . . (In) determining whether or not a particular procedure violates due process requirements, we should bear in mind the probable costs and consequences involved in casting excessive burdens upon administrative machinery. (Citations)"

We hold that section 1737.1 of the Welfare and Institutions Code does not violate due process of law. The statute is designed to facilitate the handling by the Youth Authority of juvenile offenders who, in the opinion of the authority, are amenable to treatment through its available resources. It would cast an excessive burden upon the administrative machinery at this juncture for this court to order a hearing after the Youth Authority rejected defendant . . . . 102 Cal.Rptr. at 376

We envision no such excessive burden on our administrative or judicial machinery and surely not one sufficient to convince us to sacrifice an individual's constitutional right to the least restrictive confinement possible, consistent with his rehabilitation or punishment, for the sake of lessening the government's work. A lot of mischief could surely be accomplished were expediency determinative of whether constitutional rights exist.

Since we have decided that due process applies to the return procedures authorized by Code, 25-4-6, we must now address the...