State of West Virginia v. Yoak etc.
Annotate this CaseJanuary 1998 Term
__________
No. 24505
__________
STATE OF WEST VIRGINIA,
Appellee
v.
ORVILLE RAY YOAK,
Appellant
AND
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No. 24506
__________
STATE OF WEST VIRGINIA,
Appellee
v.
ROGER D. HARDMAN,
Appellant
___________________________________________________________________
Appeal from the Circuit Court of Calhoun County
Honorable Charles E. McCarty, Judge
Civil Action Nos. 96-F-36 & 96-F-38 & 97-F-8
REMANDED
__________________________________________________________________
Submitted: June 2, 1998
Filed: June 22, 1998
Darrell V. McGraw, Jr.,
Esq. David
Karickhoff, Esq.
Attorney
General Butcher
& Butcher
Molly M. McGinley,
Esq. Glenville,
West Virginia
Assistant Attorney
General Attorney
for Yoak and Hardman
Charleston, West Virginia
Attorneys for State of West Virginia
JUSTICE MAYNARD delivered the Opinion of the Court.
SYLLABUS
The 1994 amendment contained in W.Va.
Code § 17C-5-2(o) and presently codified at W.Va. Code § 17C-5-2(p) (1996) has
effectively overruled State ex rel. Hagg v. Spillers, 181 W.Va. 387, 382 S.E.2d 581
(1989), and State ex rel. Moomau v. Hamilton, 184 W.Va. 251, 400 S.E.2d 259 (1990),
by permitting circuit courts to consider the alternative sentence of home incarceration
pursuant to W.Va. Code § 62-11B-1 et seq. when an individual has been convicted of
third offense driving under the influence of alcohol under W.Va. Code § 17C-5-2(k)
(1996).
Maynard, Justice:
These appeals originated in the Circuit
Court of Calhoun County, West Virginia, where the defendants, Orville Ray Yoak and Roger
D. Hardman, were convicted of third offense driving under the influence of alcohol (DUI)
and were subsequently sentenced to spend time in the penitentiary. Both defendants
petitioned the circuit court for alternative sentencing; however, the court determined it
did not have jurisdiction to consider home incarceration as a possible sentence for a
defendant convicted of third offense driving under the influence of alcohol. On appeal,
the cases were consolidated and the petitions were granted by this Court solely on the
issue of whether the circuit court had authority to consider as a possible sentence the
alternative sentence of home incarceration.See
footnote 1 1 We believe the statute as it is presently written gives
judges the option to consider alternative sentencing; therefore, we remand the cases back
to the Circuit Court of Calhoun County.
I.
Orville Ray Yoak was convicted by a
jury of third offense driving under the influence of alcohol. Yoak was sentenced to one to
three years in the state penitentiary. He moved for reduction of sentence, which was
denied. Yoak then requested a pre- sentence investigation report and moved for alternative
incarceration in the form of home confinement. The sentencing court denied both, based
upon its belief that: (1) probation was not available to Yoak, and therefore a
pre-sentence investigation report was unnecessary, and (2) the court had no discretion to
consider home confinement when driving under the influence of alcohol reached the felony
stage. On March 26, 1997, the court entered an order denying post-trial relief. It is from
this order that Yoak appeals.
II.
Roger D. Hardman was convicted by a
jury of third offense driving under the influence of alcohol and second offense driving
with license revoked for driving under the influence of alcohol. Hardman moved for a
pre-sentence investigation, which the court denied, stating that the record enabled the
court to "meaningfully exercise its sentencing authority." Hardman was sentenced
to one to three years in the penitentiary and ordered to pay a fine of $1,000 for third
offense driving under the influence of alcohol, and he was sentenced to one year in jail
for driving on a revoked license, with the sentences to run concurrently.
Hardman moved for an alternative
sentence of home confinement. The circuit court denied the motion, stating, "I don't
believe that I've got the authority to consider home confinement at this point as an
alternative sentence when you reach the felony stage in this." Hardman subsequently
made a motion to reduce the sentence, which the court denied on March 27, 1997. It is from
this order that Hardman appeals.
III.
The issue on appeal is whether a
circuit court has the authority to impose an alternative sentence of home confinement
pursuant to W.Va. Code § 17C-5-2(p) (1996) when an offender has been convicted of third
offense driving under the influence of alcohol. We previously said, "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." Syllabus
Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).
The appellants state that State ex
rel. Moomau v. Hamilton, 184 W.Va. 251, 400 S.E.2d 259 (1990) precludes a trial court
from sentencing a defendant who has been convicted of third offense driving under the
influence of alcohol to home confinement but argue that Moomau was written during
the time that the 1986 amendment of W.Va. Code § 17C-5-2 was in effect. As the 1996
amendment was in effect when they were sentenced, the appellants contend that
consideration of home confinement as an alternative sentence is authorized. The State
submits that W.Va. Code § 17C-5-2(p) (1996) authorizes circuit courts to consider home
confinement as an alternative when sentencing defendants who have been convicted of third
offense driving under the influence of alcohol.
We begin by interjecting a history of
the amendments to the statute which is controlling in this case. The 1986 version of W.Va.
Code § 17C-5-2 states in pertinent part:
(i) A
person violating any provision of subsection (b), (c), (d), (e), (f) or (g) of this
section shall, for the third or any subsequent offense under this section, be guilty of a
felony, and, upon conviction thereof, shall be imprisoned in the penitentiary for not less
than one nor more than three years, and the court may, in its discretion, impose a fine of
not less than three thousand dollars nor more than five thousand dollars.
* * *
(m) The
sentences provided herein upon conviction for a violation of this article are mandatory
and shall not be subject to suspension or probation: Provided, That the court may apply
the provisions of article eleven-a [§ 62-11A-1 et seq.], chapter sixty-two of this code
to a person sentenced or committed to a term of one year or less.
W.Va. Code § 17C-5-2 was amended in
1994 and W.Va. Code § 17C-5-2(i) became W.Va. Code § 17C-5-2(j). In 1996, that section
was designated as W.Va. Code § 17C-5-2(k) and reads as follows:
(k) A
person violating any provision of subsection (b), (c), (d), (e), (f), (g), or (i) of this
section shall, for the third or any subsequent offense under this section, be guilty of a
felony, and, upon conviction thereof, shall be imprisoned in the penitentiary for not less
than one nor more than three years, and the court may, in its discretion, impose a fine of
not less than three thousand dollars nor more than five thousand dollars.
The 1986 version of W.Va. Code §
17C-5-2(m) was amended in 1994 and was then designated as W.Va. Code § 17C-5-2(o), which
reads as follows:
(o) The
sentences provided herein upon conviction for a violation of this article are mandatory
and shall not be subject to suspension or probation: Provided, That the court may apply
the provisions of article eleven-a, [§ 62-11A-1 et seq.], chapter sixty-two of this code
to a person sentenced or committed to a term of one year or less. An order for home
detention by the court pursuant to the provisions of article eleven-b, [§ 62-11B-1 et
seq.], chapter sixty-two of this code may be used as an alternative sentence to any period
of incarceration required by this section. (Emphasis added).
Pursuant to the 1996 amendments, that section is now designated as W.Va.Code § 17C-5- 2(p).
In State ex rel. Hagg v. Spillers,
181 W.Va. 387, 382 S.E.2d 581 (1989), this Court dealt with the 1986 version of W.Va. Code
§ 17C-5-2(i), third offense driving under the influence of alcohol. The Hagg court
held:
When an individual
is convicted of third-offense driving under the influence of alcohol, the term of
imprisonment set out in W.Va. Code, 17C-5-2(i) of confinement in the penitentiary for not
less than one nor more than three years is mandatory and is not subject to probation.
Syllabus Point 2, State ex rel. Hagg v. Spillers, id. This Court applied
the "plain legislative command" of the statute and restricted sentencing to a
term in the penitentiary without the possibility of alternative sentencing, such as
probation. Id. at 389, 382 S.E.2d at 583.
This Court reaffirmed Hagg in a per
curiam opinion, State ex rel. Moomau v. Hamilton, 184 W.Va. 251, 400 S.E.2d 259
(1990), and extended Hagg's application to the sentence of home incarceration. In Moomau,
this Court dealt with a defendant who had been convicted of third offense driving under
the influence of alcohol under the 1986 version of W.Va. Code § 17C-5-2. The penalty was
restricted to confinement in the penitentiary. However, the circuit court ruled that a
defendant who was guilty of third offense driving under the influence of alcohol was
subject to alternative sentencing under the Home Detention Act, W.Va. Code § 62-11B-1 et
seq. (1990). On appeal, this Court reasoned that home incarceration bears a close
analogy to probation and held that "persons convicted of DUI, third offense, are not
eligible for alternative incarceration under the Home Detention Act. . . . The sentence to
be imposed for DUI, third offense, is prescribed by W.Va.Code, 17C-5-2(i) (1986). It is
imprisonment 'in the penitentiary for not less than one nor more than three years.'
(Emphasis added)." Id. at 253, 400 S.E.2d at 261.
The legislature's 1994 amendments to
the DUI sentencing statute superseded the Moomau decision. The last sentence in the
pertinent subsection states: "An order for home detention by the court pursuant to
the provisions of article eleven-b [§ 62-11B-1 et seq.], chapter sixty-two of this code
may be used as an alternative sentence to any period of incarceration required by this
section." W.Va. Code § 17C-5-2(o) (1994) (emphasis added).See footnote 2 2 The amended statute specifically permits
judges to consider home incarceration as an alternative sentencing option for any period
of incarceration set out in W.Va. Code § 17C-5-2.
It is clearly apparent the legislature,
by adding this sentence, has effectively overruled the result in Hagg and Moomau.
By virtue of the amendment to the statute, circuit courts are now permitted to
consider the alternative sentence of home incarceration for persons convicted of third
offense driving under the influence of alcohol. Moreover, under the Home Incarceration
Act, W.Va. Code § 62-11B-1 et seq., "as an alternative sentence to another
form of incarceration for any criminal violation of this code over which a circuit court
has jurisdiction, a circuit court may order an offender confined to the offender's home
for a period of home incarceration." W.Va. Code § 62-11B-4(a), in part (1994).
Furthermore, "[h]ome incarceration shall not be available as a sentence if the
language of a criminal statute expressly prohibits its application." W.Va. Code §
62-11B- 6(e) (1994). Not only does W.Va. Code § 17C-5-2(p) (1996) not preclude
consideration of home confinement, it expressly provides for consideration of home
confinement as an alternative sentence for offenders who have been convicted pursuant to
this code section, including those guilty of felony third offense driving under the
influence of alcohol.
Therefore, we hold that W.Va. Code §
17C-5-2(p) (1996) gives circuit courts the option to consider an alternative sentence of
home incarceration under W.Va. Code § 62-11B-1 et seq. when an individual has been
convicted of third offense driving under the influence of alcohol under W.Va. Code §
17C-5-2(k) (1996).
However, it should be strongly
emphasized that this legislative option is just that, only an option, and it is not
binding or mandatory. The statute simply provides circuit judges with discretion to
consider whether home confinement as an alternative sentence might be warranted in a given
case.
In the cases presently before us, the
judge determined he did not have authority to consider home confinement as a possible
sentence. It is appropriate and wise that circuit judges have broad power and discretion
in deciding all matters related to criminal sentencing. The judgment on the issue of
whether to grant home confinement or not properly rests in the sound discretion of the
trial judge, as it should. Consequently, we do not reverse the circuit court's decisions,
but merely remand the cases for the court to reconsider the sentences in light of this
opinion.
Remanded.
Footnote: 1 1 Both appellants presented other assignments of error which were deemed by this Court to have no merit.
Footnote: 2 2 As previously mentioned, this code section is presently enacted at W.Va. Code § 17C-5-2(p) (1996).
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