IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2020 Term
_______________
FILED
No. 19-0777 November 17, 2020
released at 3:00 p.m.
_______________ EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent
v.
DAVID HIRAM WALKER, JR.,
Defendant Below, Petitioner
____________________________________________________________
Appeal from the Circuit Court of Preston County
The Honorable Steven L. Shaffer
Case No. 17-F-42
AFFIRMED
____________________________________________________________
Submitted: October 28, 2020
Filed: November 17, 2020
Samuel P. Hess, Esq. Patrick Morrisey, Esq.
Public Defender Corporation Attorney General
Kingwood, West Virginia Karen Villanueva-Matkovich, Esq.
Counsel for Petitioner Deputy Attorney General
Charleston, West Virginia
Counsel for Respondent
JUSTICE WALKER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “‘In reviewing the findings of fact and conclusions of law of a circuit
court concerning an order on a motion made under Rule 35 of the West Virginia Rules of
Criminal Procedure, we apply a three-pronged standard of review. We review the decision
on the Rule 35 motion under an abuse of discretion standard; the underlying facts are
reviewed under a clearly erroneous standard; and questions of law and interpretations of
statutes and rules are subject to a de novo review.’ Syl. Pt. 1, State v. Head, 198 W.Va.
298, 480 S.E.2d 507 (1996).” Syllabus Point 1, State v. Collins, 238 W. Va. 123, 792
S.E.2d 622 (2016).
2. “Where the language of a statute is clear and without ambiguity the
plain meaning is to be accepted without resorting to the rules of interpretation.’ Syl. Pt. 2,
State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968).” Syllabus Point 2, King v. West
Virginia’s Choice, Inc., 234 W. Va. 440, 766 S.E.2d 387 (2014).
3. West Virginia Code § 62-11B-9(b) (2017) permits a participant in a
home incarceration program to receive credit for time served while incarcerated in his
home only where the term of home incarceration was imposed as an alternative sentence
to another form of incarceration.
i
WALKER, Justice:
Petitioner David Hiram Walker, Jr. was convicted of a single count of grand
larceny by false pretenses and sentenced to one to ten years’ incarceration. The Circuit
Court of Preston County suspended Mr. Walker’s sentence in favor of three years’
probation, with the first year to be served on home confinement. After Mr. Walker’s
probation was revoked in June 2019, he was sentenced to the underlying one to ten years’
incarceration. Soon after, Mr. Walker filed a motion to correct illegal sentence under Rule
35(a) of the West Virginia Rules of Criminal Procedure, arguing that he should be credited
for time served on home incarceration as part of his probation.
The circuit court denied Mr. Walker’s motion on the basis that West Virginia
Code § 62-11B-9(b) (2017) requires that defendants receive credit for time served on home
incarceration only if the home incarceration is an alternative sentence to another form of
incarceration, and because Mr. Walker’s home incarceration was not an alternative
sentence, but a condition of probation, he was not entitled to credit for time served.
Because we agree with the circuit court that defendants are not entitled to credit for time
served on home incarceration where the home incarceration is a condition of probation, we
affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
David Hiram Walker, Jr. pled guilty to grand larceny by false pretenses in
the Circuit Court of Preston County. On July 27, 2018, the circuit court sentenced Mr.
1
Walker to one to ten years’ incarceration in a state correctional facility. The circuit court
suspended the sentence and imposed a three-year period of probation with the condition
that the first year be served on home confinement. The order set out several conditions of
probation, but did not elaborate on the terms of the home confinement. The parties allege
that the typical practice in Preston County is for the probation office to provide one form
listing the rules and regulations of probation and another form setting out the terms of home
confinement; apparently none of this information is included in the sentencing order. 1
At some point during the first year of probation, Mr. Walker violated his
probationary terms. At that time, the circuit court did not revoke Mr. Walker’s probation
but rather ordered him to be incarcerated for 60 days under West Virginia Code § 62-12-
10(a)(2), which enables a court to impose a period of confinement up to sixty days for a
probationer’s first violation of any condition of supervision. Upon successful completion
of that short incarceration, Mr. Walker was returned to probation and home confinement.
When Mr. Walker again violated the terms of his probation, the circuit court revoked his
probation and ordered him to serve the original one-to-ten-year sentence of incarceration.
The circuit court further granted Mr. Walker credit for the sixteen days he spent
incarcerated prior to trial.
1
To the extent the circuit court does not, in fact, set forth the terms of home
confinement by order, we remind it of its duty to do so under West Virginia Code § 62-
11B-5 (2017) and this Court’s precedent in State v. McGuire, 207 W. Va. 459, 533 S.E.2d
685 (2000).
2
Soon after the revocation of his probation on June 19, 2019, Mr. Walker filed
a motion to correct an illegal sentence under Rule 35(a) of the West Virginia Rules of
Criminal Procedure. As basis for this motion, Mr. Walker argued that (1) he should have
received credit for time served during the 60-day incarceration; and (2) he should have
received credit for time served on home confinement (237 days). The circuit court granted
Mr. Walker’s request as to the 60-day incarceration. But, as to credit for time served while
on home incarceration as a condition of probation, the circuit court found under the plain
language of West Virginia Code § 62-11B-9(b) (2017) that defendants receive credit for
time served on home incarceration only when the defendant’s home confinement was an
alternative sentence to another form of incarceration. The circuit court further found that
defendants are not entitled to credit for time served under this statute when the home
incarceration is imposed as a condition of probation. So, the circuit court denied Mr.
Walker’s motion for credit for the 237 days that he spent on home incarceration as a
condition of probation. This appeal followed.
II. STANDARD OF REVIEW
This Court reviews a circuit court’s decision on a motion under Rule 35 of
the West Virginia Rules of Criminal Procedure under this standard:
“[i]n reviewing the findings of fact and conclusions of
law of a circuit court concerning an order on a motion made
under Rule 35 of the West Virginia Rules of Criminal
Procedure, we apply a three-pronged standard of review. We
review the decision on the Rule 35 motion under an abuse of
discretion standard; the underlying facts are reviewed under a
clearly erroneous standard; and questions of law and
3
interpretations of statutes and rules are subject to a de novo
review.” Syl. Pt. 1, State v. Head, 198 W.Va. 298, 480 S.E.2d
507 (1996).[2]
With this standard in mind, we proceed to address the arguments on appeal.
III. DISCUSSION
Mr. Walker’s single assignment of error on appeal is that the circuit court
should have given him credit for the time he spent on home confinement as a condition of
probation. As noted above, the circuit court determined that a plain reading of West
Virginia Code § 62-11B-9(b) precluded awarding Mr. Walker credit for time served
because his home incarceration was not an alternative sentence. Upon review of the
relevant statutes and case law, we agree.
West Virginia Code § 62-11B-4(a) (2017) provides three possible bases
under which a court may order participation in a home incarceration program: (1) as a
condition of probation; (2) as a condition of bail; or (3) as an alternative sentence to another
form of incarceration. It is undisputed that Mr. Walker’s home incarceration program was
imposed as a condition of probation. West Virginia Code § 62-11B-9 sets forth the
procedures that courts must follow when a participant in a home incarceration program has
violated the requirements of that program:
(a) If, at any time during the period of home incarceration,
there is reasonable cause to believe that a participant in a
home incarceration program has violated the terms and
2
Syl. Pt. 1, State v. Collins, 238 W. Va. 123, 792 S.E.2d 622 (2016).
4
conditions of the circuit court’s home incarceration order,
he or she is subject to the procedures and penalties set forth
in [§ 62-12-10].
(b) If, at any time during the period of home incarceration,
there is reasonable cause to believe that a participant
sentenced to home incarceration by the circuit court has
violated the terms and conditions of the circuit court’s order
of home incarceration and the participant’s participation
was imposed as an alternative sentence to another form of
incarceration, the participant is subject to the same
procedures involving confinement and revocation as would
a probationer charged with a violation of the order of home
incarceration. Any participant under an order of home
incarceration is subject to the same penalty or penalties,
upon the circuit court’s finding a violation of the order of
home incarceration, as he or she could have received at the
initial disposition hearing: Provided, That the participant
shall receive credit towards any sentence imposed after
finding a violation for the time spent in home
incarceration.[3]
The circuit court reasoned that under the plain meaning of § 62-11B-9(b), a
home incarceration participant would only be entitled to credit for time served while on
home confinement if that home confinement were imposed as an alternative sentence to
another form of incarceration. And, because Mr. Walker’s participation in the home
confinement program was not imposed as an alternative sentence, but as a condition of
probation, Mr. Walker was not entitled to credit for time served for his time spent in home
incarceration.
3
W. Va. Code §§ 62-11B-9(a) and (b) (emphasis added).
5
Mr. Walker argues that we should read § 62-11B-9(b) in two parts: (1) the
first sentence establishes that when a participant in a home incarceration program, where
the home incarceration is imposed as an alternative sentence, violates the terms of the home
incarceration the participant is subject to the same penalties and procedures that apply to
probation violations; and (2) the second sentence establishes that any home incarceration
program participant, even those whose home incarceration is not an alternative sentence,
may receive credit for time served for any time spent on home incarceration. We believe
Mr. Walker’s suggested interpretation of the statute is not only illogical, but also contrary
to its plain language.
We have held that “‘[w]here the language of a statute is clear and without
ambiguity the plain meaning is to be accepted without resorting to the rules of
interpretation.’ Syl. Pt. 2, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968).” 4 So,
we rely on the statute’s plain meaning because § 62-11B-9(b) is free from ambiguity. The
first sentence of § 62-11B-9(b) provides that subsection (b) applies only where “there is
reasonable cause to believe that a participant sentenced to home incarceration by the circuit
court has violated the terms and conditions of the court’s order of home incarceration and
the participant’s participation was imposed as an alternative sentence to another form of
4
Syl. Pt. 2, King v. West Virginia’s Choice, Inc., 234 W. Va. 440, 766 S.E.2d 387
(2014).
6
incarceration[.]” 5 Both parties agree that this sentence is a clear limitation on the
applicability of § 62-11B-9(b) to only those participants whose home incarceration was
imposed as an alternative sentence.
The bone of contention arises in the second sentence. Mr. Walker argues that
the words “any participant” in that sentence apply broadly to all home incarceration
program participants. But, this is an illogical reading of this provision in light of the first
sentence’s explicit limitation of applicability of the provision to only those participants
whose home incarceration is imposed as an alternative sentence. If we were to read the
second sentence as broadly as Mr. Walker suggests, we would deprive
§ 62-11B-9(b) of any purpose because it would just be a restatement of § 62-11B-9(a).
Specifically, if we isolate the first sentence of § 62-11B-9(b), that section
would just provide that participants in a home incarceration program where the home
incarceration was imposed as an alternative sentence are “subject to the same procedures
involving confinement and revocation as would a probationer charged with a violation of
the order of home incarceration.” That is precisely what § 62-11B-9(a) already does.
Section 62-11B-9(a) directs that where “there is reasonable cause to believe that a
participant in a home incarceration program has violated the terms and conditions of the
circuit court’s home confinement order, he or she is subject to the penalties and procedures
5
W. Va. Code § 62-11B-9(b) (emphasis added).
7
set forth in [§ 62-12-10].” There is no language limiting the applicability of subsection (a),
so it applies broadly to all instances in which there is a violation of a home incarceration
order, including where the home incarceration is imposed as an alternative sentence.
And, § 62-12-10 sets out the various procedures and penalties that apply to
probationers for violations of the terms of their probation, including the calculation of
credit for time served. More specifically, § 62-12-10(a)(3) provides that “[i]n computing
the period for which the offender is to be confined [after probation is revoked], the time
between his or her release on probation and his or her arrest may not be taken to be any
part of the term of his or her sentence.” 6 Returning to § 62-11B-9(a), if we were to apply
all of the procedures and penalties provided for in § 62-12-10, no participant in a home
confinement program would be entitled to credit for time served (absent actual
incarceration).
Similarly, if we isolate the first sentence of § 62-11B-9(b), we would reach
the same result that no home incarceration program participant, including one whose home
incarceration was imposed as an alternative sentence, would be entitled to credit for time
served. As such, the only thing distinguishing subsections (a) and (b) is the second
sentence of § 62-11B-9(b), which provides that a “participant shall receive credit towards
6
However, we are careful to point out that that language does not bar credit for time
served when the probationer is actually incarcerated for purposes of a sentence under West
Virginia Code § 62-12-10(a)(2) because that provision explicitly permits credit for time
spent incarcerated pursuant to its terms.
8
any sentence imposed after a finding of violation for the time spent in home incarceration.”
If the Legislature had intended that all home incarceration program participants receive
credit for time served in home incarceration, it would have included this second sentence
under § 62-11B-9(a) instead of § 62-11B-9(b). This is because subsection (a) applies
broadly to all forms of home incarceration, while, as stated several times above, subsection
(b) is limited by its first sentence to only apply where home incarceration was imposed as
an alternative sentence. We have previously stated that “courts must presume that a
legislature says in a statute what it means and means in a statute what it says there.” 7 So,
we conclude that West Virginia Code § 62-11B-9(b) (2017) permits a participant in a home
incarceration program to receive credit for time served while incarcerated in his home only
where the term of home incarceration was imposed as an alternative sentence to another
form of incarceration.
Because there are no disputes as to the underlying facts in this matter, it is
clear that Mr. Walker was not entitled to credit for time served while on home
incarceration, because that home incarceration was imposed as a condition of probation
rather than as an alternative sentence to another form of incarceration. So, the circuit court
did not abuse its discretion in denying Mr. Walker’s Rule 35(a) motion to correct an illegal
sentence and we affirm.
7
King, 234 W. Va. at 444, 766 S.E.2d at 391.
9
IV. CONCLUSION
Based on the foregoing, we affirm the Circuit Court of Preston County’s
August 21, 2019 Order Denying Defendant’s Rule 35(a) Motion to Correct Illegal
Sentence.
Affirmed.
10