IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2013 Term
FILED
February 22, 2013
No. 11-1156 released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
CHARLES ELDER,
Defendant Below, Petitioner
v.
ANNABELLE SCOLAPIA, HOME INCARCERATION
OFFICER FOR HARRISON COUNTY
Plaintiff Below, Respondent
Appeal from the Circuit Court of Harrison County
Honorable James A. Matish, Judge
Civil Action No. 10-C-103-3
AFFIRMED
Submitted: January 8, 2013
Filed: February 22, 2013
Steven T. Cook, Esq. Patrick Morrisey, Esq.
Stapleton Law Offices Attorney General
Huntington, West Virginia Laura Young, Esq.
Attorney for Petitioner Assistant Attorney General
Charleston, West Virginia
Attorneys for Respondent
JUSTICE LOUGHRY delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “In reviewing challenges to the findings and conclusions of the circuit court
in a habeas corpus action, we apply a three-prong standard of review. We review the final
order and the ultimate disposition under an abuse of discretion standard; the underlying
factual findings under a clearly erroneous standard; and questions of law are subject to a de
novo review.” Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).
2. An offender who has been sentenced pursuant to the Home Incarceration
Act, West Virginia Code §§ 62-11B-1 to -13 (2010), and is accordingly subject to substantial
restrictions on his or her liberty by virtue of the terms and conditions imposed by a home
incarceration order, which include arrest and resentencing for a violation of those terms and
conditions, is “incarcerated under sentence of imprisonment” for purposes of seeking post-
conviction habeas corpus relief under West Virginia Code § 53-4A-1 (2008).
3. “In the West Virginia courts, claims of ineffective assistance of counsel are
to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel’s performance was deficient under
an objective standard of reasonableness; and (2) there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceedings would have been different.”
Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).
LOUGHRY, Justice:
Petitioner Charles R. Elder appeals from the denial of his petition for a writ of
habeas corpus as set forth in two orders separately entered by the Circuit Court of Harrison
County on July 11, 2011. Mr. Elder, who is serving a criminal sentence by the alternate
means of home incarceration,1 sought relief in habeas corpus solely for sentencing and post-
sentencing matters. Following an omnibus hearing, the trial court denied the petition with
regard to the ground of ineffective assistance of counsel but modified the terms of
Petitioner’s home incarceration to afford Mr. Elder one hour per day of recreational time
outside the physical confines of his house but within the parameters of his yard; to authorize
the least restrictive type of home monitoring device; and to permit travel outside this state
for necessary medical appointments. As part of its ruling, the trial court denied Petitioner’s
request to attend services at a specified church that would have required an hour and a half
of driving time round trip. Through this appeal, Mr. Elder seeks immediate release from any
further incarceration in light of his continuing deterioration due to Parkinson’s disease. Upon
our careful review of the record in this matter, we find no basis for habeas corpus relief or
for further modification of the terms of Petitioner’s sentencing. Accordingly, we affirm.
1
With amendments that were adopted in 1994, the act previously known as the Home
Confinement Act was renamed the Home Incarceration Act. See W.Va. Code § 62-11B-3
(1994).
1
I. Factual and Procedural Background
On December 8, 2008, Petitioner entered a plea of guilt to one count of sexual
abuse by a person in a position of trust and one count of third degree sexual assault.2
Following the completion of a presentence investigation, a psychological evaluation, and a
sex offender evaluation, the sentencing hearing was scheduled for February 12, 2009. After
receiving testimony from two witnesses called on Petitioner’s behalf as well as the victim’s
mother, the trial court sentenced Mr. Elder to ten to twenty years for his plea of guilt to
sexual abuse by a person in a position of trust and one to five years for his plea of guilt to
third degree sexual assault. Over the State’s objection, the trial court ordered that these
sentences were to run concurrently3 and, due to Petitioner’s health concerns, permitted Mr.
Elder to serve his sentences by the alternate means of electronically-monitored home
incarceration.4
2
During the investigation of these charges, the State obtained information that
Petitioner had committed numerous sexual assaults against his two stepdaughters while they
were minors. Reluctant to relive those incidents through trial testimony, the stepdaughters
preferred that this matter be resolved by plea agreement provided that Mr. Elder was likely
to receive a significant sentence. According to the State’s Response to the Petition for Post
Conviction Writ of Habeas Corpus, the terms of the plea agreement offered in this case
expressly included the State’s decision not to prosecute Mr. Elder for the sexual conduct
perpetrated against his two stepdaughters between 1960-1978.
3
The State had requested that Petitioner be sentenced to consecutive terms.
4
In addition to the standard terms of home incarceration, the following conditions
were imposed upon Petitioner: (1) That he not possess pornographic materials in his home;
(2) That he not take erectile dysfunction medicine; (3) That he attend Matt Deluca’s sex
offender treatment for three years; and (4) That he comply with the terms and conditions of
(continued...)
2
Petitioner filed a post-conviction writ of habeas corpus on March 18, 2010.
Through the omnibus hearing held on August 25 and December 2, 2010,5 Petitioner raised
a variety of concerns, the bulk of which centered on his desire to modify the terms of his
home incarceration.6 Specific items for which he sought the trial court’s approval included
walking the dog; getting the newspaper; gardening; travel to Texas to visit friends; thrice
weekly church attendance; and replacement of his ankle monitoring device. Also raised as
a ground for the petition was ineffective assistance of counsel. This ground was expressly
limited to counsel’s failure to initiate an appeal with regard to the sentencing imposed by the
trial court.
In the first of the two orders entered on July 11, 2011, the trial court addressed
Petitioner’s ineffective assistance of counsel claim. The trial court determined that this claim
was based on two allegations: the failure of Mr. Elder’s former counsel, Thomas G. Dyer,
to file an appeal following the sentencing order and his failure to file a motion for
4
(...continued)
supervised release during the period of his home confinement.
5
The trial court decided to continue the hearing as two witnesses whose testimony was
relevant to the issue of ineffective assistance of counsel–Thomas G. Dyer and D. Conrad
Gall–had not been subpoenaed to appear at the hearing.
6
Petitioner’s counsel stated at the December 2, 2010, omnibus hearing that a habeas
petition was filed based on Mr. Elder’s deteriorating medical condition because it was too
late to file a motion for reconsideration of sentencing under Rule 35 of the West Virginia
Rules of Criminal Procedure.
3
reconsideration of sentencing in a timely manner. The trial court applied the test we adopted
in State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), and concluded that Mr. Dyer’s
representation of Mr. Elder was not deficient under an objective standard of reasonableness.
In both instances, the trial court found that Mr. Dyer took the necessary actions that a
reasonable criminal defense attorney would have taken in a similar situation. As an
additional matter, the trial court found the record devoid of evidence that Petitioner had
instructed Mr. Dyer to file an appeal on his behalf or to file a motion for reconsideration of
sentence. After concluding that Petitioner had failed to meet his burden of proof under
Miller, the trial court denied Mr. Elder’s request for habeas corpus relief on the ground of
ineffective assistance of counsel.
In the second order entered on July 11, 2011, the trial court addressed the
remaining grounds asserted by Petitioner in either his habeas petition or during the course
of the omnibus hearings.7 Based on the evidence adduced at the hearings and information
obtained from the Department of Corrections with regard to the recreational time allotted to
inmates on a daily basis,8 the trial court ordered that Petitioner should be afforded one hour
7
Petitioner did not assert a denial of his right to exercise his religious freedom as part
of his habeas petition; the issue was raised during the December 2, 2010, omnibus hearing.
8
At the close of the omnibus hearing held on August 25, 2010, the trial court directed
the Home Incarceration Supervisor, Respondent Scolapia, to request the rules, regulations,
and all other pertinent information relevant to the outside therapy/recreation (yard time)
provided to inmates by the Department of Corrections.
4
of recreation time outside his home per day while remaining within the physical confines of
his yard. Responding to Mr. Elder’s concerns about the physical effects of the ankle monitor,
the trial court directed that the least restrictive home monitoring device be utilized.9 The trial
court also ordered that Petitioner be permitted to leave the state for properly scheduled and
necessary medical appointments related to his health condition of Parkinson’s disease.10
With regard to Petitioner’s request that he be permitted to attend services at the Weston
Church of God three times a week,11 the trial court first considered the fact that Mr. Elder had
not been regularly attending church immediately before being placed on home incarceration.
Concerned with the need to protect any children who would be attending those church
services, the trial court weighed this concern with Petitioner’s request to exercise his freedom
of religion in this particular manner and decided that Mr. Elder’s request to attend those
specific church services should be denied. Based on evidence that both the Weston Church
of God’s pastor and its congregants had been visiting with Mr. Elder in his home and
engaging in Bible study during those visits, the trial court ruled that Petitioner’s religious
rights were not being violated.
9
As a result of this ruling, Petitioner is currently using a wrist monitoring device.
10
Petitioner’s counsel indicated during the omnibus hearing that a treating physician,
Dr. Sidney Jackson, wanted Mr. Elder to see a neurologist in Pittsburgh, Pennsylvania. Upon
questioning from the trial court, however, it was revealed that no appointment had been
scheduled for any out-of-state medical treatment and, further, that no request had been made
with the home incarceration office to allow for such travel.
11
The services that Petitioner sought to attend at the Weston Church of God are held
on Sunday mornings, Sunday evenings, and Wednesday evenings.
5
Through this appeal, Petitioner seeks a reversal of the trial court’s rulings
insofar as the trial court did not fully release him from his home incarceration and/or place
him on probation.
II. Standard of Review
As we explained in syllabus point one of Mathena v. Haines, 219 W.Va. 417,
633 S.E.2d 771 (2006), our review is governed by the following standard:
In reviewing challenges to the findings and conclusions
of the circuit court in a habeas corpus action, we apply a three-
prong standard of review. We review the final order and the
ultimate disposition under an abuse of discretion standard; the
underlying factual findings under a clearly erroneous standard;
and questions of law are subject to a de novo review.
With this standard in mind, we proceed to determine whether the circuit court committed
error in denying habeas corpus relief to Petitioner.12
III. Discussion
A. Applicability of Habeas Corpus
As an initial matter, we wish to address a concern first articulated by James
Armstrong, the assistant prosecutor, in responding to Petitioner’s filing of the subject habeas
12
The relief that the trial court awarded Petitioner in terms of altering the type of his
electronic-monitoring device; providing for daily exercise time outside of his home; and
authorizing out-of-state medical treatment was a modification of the terms of Mr. Elder’s
home incarceration rather than a remedy warranted under principles of habeas corpus.
6
petition. Given that the post-conviction habeas statute provides relief to someone who is
“incarcerated under sentence of imprisonment,” Mr. Armstrong questioned whether an
individual who is not incarcerated in a prison or jail cell has standing to assert a post-
conviction habeas claim. See W.Va. Code § 53-4A-1. Echoing this argument, Respondent
Scolapia, the Home Incarceration Supervisor for Harrison County, reasons that individuals
on home confinement are not entitled to seek relief in habeas corpus based on our previous
recognition that the definition of incarceration entails “confinement in a jail or penitentiary.”
See State ex rel. Goff v. Merrifield, 191 W.Va. 473, 477, 446 S.E.2d 695, 699 (1994). Not
only does Respondent fail to attribute Black’s Law Dictionary as the proper source of that
definition, but she overlooks the reason for the lexical reference in Merrifield. This Court’s
reference to the common usage of the term “incarceration” was prompted by a need to
determine whether confinement within the county jail as a condition of probation qualified
as a “sentence” for purposes of applying statutory good time credit. See Merrifield, 191
W.Va. at 476-78, 446 S.E.2d at 698-700 (discussing application of W.Va. Code § 7-8-11).
As we made clear in State v. Lewis, 195 W.Va. 282, 465 S.E.2d 384 (1995): The statute
being interpreted governs whether home incarceration is encompassed within its reach. Id.
at 288, 465 S.E.2d at 390. Applying that concept in Lewis, this Court decided that for
purposes of the probation statute “home incarceration is not considered the same as actual
confinement in a county jail.” 195 W.Va. at 288, 465 S.E.2d at 390 (interpreting W.Va.
Code § 62-12-9(b)). Critically, this Court’s interpretation of “incarceration” or “home
7
incarceration,” as those terms relate to the good time credit statute and the probation statute,
have no bearing on the meaning of such terms for purposes of the habeas statute under
review. See W.Va. Code § 53-4A-1.
Until today, this Court has never squarely addressed the issue of whether home
incarceration constitutes the qualifying level of incarceration for purposes of seeking post-
conviction relief in habeas corpus. See id. Federal law leaves no doubt that the remedy of
habeas corpus is available to individuals on home incarceration. Beginning with its seminal
decision in Jones v. Cunningham, 371 U.S. 236 (1963), the United States Supreme Court has
broadly interpreted the “in custody” triggering language of the federal habeas statute, 28
U.S.C. § 2241, to extend to any situation where there are significant restraints on an
individual’s liberty. 371 U.S. at 242-43. The high court ruled in Jones that a parolee came
within the ambit of the “in custody” requirement based on the numerous limitations placed
upon his personal freedom, including the ongoing possibility that he could be rearrested at
any time upon a violation of a term or condition of his parole. Id.; see Hatch v. Lapin, 660
F.Supp.2d 104, 108 (D. Mass. 2009) (holding that revocation of home confinement was
proper subject of federal habeas corpus laws); Davis v. Nassau County, 524 F.Supp.2d 182,
187 (E.D. N.Y. 2007) (stating that “[p]hysical confinement is not necessary to satisfy the ‘in
custody’ requirement” of federal habeas corpus statutes); U.S. ex rel. Wojtycha v. Hopkins,
517 F.2d 420, 423-24 (3d Cir. 1975) (extending rationale of Jones to individuals on
8
probation); see generally Syl. Pt. 4, Click v. Click, 98 W.Va. 419, 127 S.E. 194 (1925)
(recognizing origin of writ of habeas corpus as challenge to improper restraint of liberty or
custody).
Under the controlling habeas statute, post-conviction relief may be sought by
“[a]ny person convicted of a crime and incarcerated under sentence of imprisonment.”
W.Va. Code § 53-4A-1. While Respondent argues that Mr. Elder’s confinement in his own
home pursuant to the Home Incarceration Act disqualifies him from seeking post-conviction
habeas relief, we disagree. See W.Va. Code §§ 62-11B-1 to -13 (2010). We are not
persuaded by Respondent’s contention that the use of an alternate means of sentencing such
as home incarceration prevents an individual from asserting constitutional challenges13 to his
or her sentence. What is critical to the assertion of a post-conviction challenge to a criminal
sentence is whether that individual is “incarcerated” within the meaning of West Virginia
Code § 53-4A-1.
In the same manner that the United State Supreme Court analyzed the trigger
for habeas corpus relief under federal law, we focus on whether there are substantial
restraints on an individual’s freedom to assist us in identifying the requisite basis for seeking
13
It is axiomatic that habeas corpus proceedings are limited to matters of constitutional
significance. See Edwards v. Leverette, 163 W.Va. 571, 576, 258 S.E.2d 436, 439 (1979)
(distinguishing nature of review in direct appeals as compared to habeas corpus proceedings).
9
habeas corpus relief under state law. See Jones, 371 U.S. at 242. The fact that Petitioner is
serving his sentence in an alternate fashion subject to the terms of the Home Incarceration
Act does not mean that he has the freedom to come and go as he pleases; his daily activities
are subject to both the supervision and control of the Home Incarceration Office. See State
v. Long, 192 W.Va. 109, 111, 450 S.E.2d 806, 808 (1994) (recognizing that “entire statutory
scheme [of Home Incarceration Act] is designed to place substantial restrictions on the
offender”). The bulk of Petitioner’s complaints evidence his frustration with the significant
restrictions imposed on his daily life under the terms of his home incarceration.14 Mr.
Elder’s ongoing attempts to reduce the severity of those restrictions further manifest the
appreciable nature of those restrictions. As the assistant prosecutor correctly observed in
responding to Mr. Elder’s habeas petition, “[h]ome confinement is not designed to be fun or
enjoyable, nor is it supposed to afford a confinee with the same liberties he or she enjoyed
prior to being placed on home confinement.”
Just as the United State Supreme Court equated the “in custody” trigger of the
federal habeas corpus statutes with the imposition of significant restraints on an individual’s
14
Petitioner’s former counsel, Thomas G. Dyer, testified at the omnibus hearing that
Mr. Elder called him once a week for several weeks at the beginning of the period of home
incarceration and indicated that he “wasn’t going to be able to survive these strict terms and
conditions of home confinement.” Mr. Dyer testified that Matt DeLuca, the sex offender
counselor, called on Petitioner’s behalf and similarly related that Mr. Elder was not
“tolerating the rather strict terms of this home confinement too well.”
10
“liberty to do those things which . . . free men are entitled to do,” we find the existence of
significant restraints on Petitioner’s freedoms to be indicative of whether he is “incarcerated”
for purposes of post-conviction habeas review. Jones, 371 U.S. at 243; W.Va. Code § 53
4A-1. As the record in this case makes clear, Petitioner does not enjoy the liberty to freely
wander the physical confines of his yard, let alone his community, this state, or this country.
Virtually every decision that he makes with regard to exiting his house is subject to the terms
of the home incarceration order. And, as is the case with any offender,15 a violation of the
terms of the controlling incarceration order can result in the revocation of that alternate
means of sentencing and the imposition of a traditional sentence in the penitentiary or jail.
See W.Va. Code § 62-11B-5(2) (requiring that home incarceration order contain “[n]otice
to the offender of the penalties which may be imposed if the circuit court or magistrate
subsequently finds the offender to have violated the terms and conditions in the order of
home incarceration”); see also Horton v. Dobbs, 2011 WL 3606369 at *27 (N.D. W.Va.
2011) (discussing authority of home incarceration supervisor to arrest “home incarceration
participant when reasonable cause exists to believe that such participant has violated the
conditions of his or her home incarceration”). Finally, the decision to retitle the Home
15
Under the Home Incarceration Act, an “offender” is defined as “any adult convicted
of a crime punishable by imprisonment or detention in a county jail or state penitentiary; or
a juvenile convicted of a delinquent act that would be a crime punishable by imprisonment
or incarceration in the state penitentiary or county jail, if committed by an adult.” W.Va.
Code § 62-11B-3(3).
11
Confinement Act as the Home Incarceration Act,16 suggests a legislative recognition that
individuals who are serving their criminal sentences within the confines of their respective
homes are to be viewed as incarcerated rather than merely confined. See W.Va. Code § 62
11B-3.
Based on the foregoing analysis, we hold that an offender who has been
sentenced pursuant to the Home Incarceration Act and is accordingly subject to substantial
restrictions on his or her liberty by virtue of the terms and conditions imposed by a home
incarceration order, which include arrest and resentencing for a violation of those terms and
conditions, is “incarcerated under sentence of imprisonment” for purposes of seeking post-
conviction habeas corpus relief under West Virginia Code § 53-4A-1. In view of the clear
and undisputed restrictions of a substantial nature that are currently imposed on Petitioner
pursuant to the governing home incarceration order combined with the ongoing possibility
that his alternative sentence could be revoked at any time, we have no difficulty in viewing
him as “incarcerated under sentence of imprisonment.” Id. As a result, Mr. Elder is entitled
to seek post-conviction habeas relief pursuant to West Virginia Code § 53-4A-1 for his
claims that are grounded in constitutional law.17
16
See supra note 1.
17
See supra note 13.
12
B. Ineffective Assistance of Counsel
In addressing Petitioner’s allegation of ineffective assistance of counsel, the
trial court applied the test we adopted in syllabus point five of State v. Miller, 194 W.Va. 3,
459 S.E.2d 114 (1995):
In the West Virginia courts, claims of ineffective
assistance of counsel are to be governed by the two-pronged test
established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984): (1) Counsel’s performance was
deficient under an objective standard of reasonableness; and (2)
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings would have
been different.
After distilling Mr. Elder’s representational concern into two complaints–failure to file an
appeal and failure to file a motion for reconsideration of sentence–the trial court proceeded
to apply the test we adopted in Miller.
In considering Petitioner’s complaint that his former counsel, Thomas G. Dyer,
failed to file an appeal on his behalf, the trial court reviewed the testimony of Mr. Dyer at the
omnibus hearing in conjunction with the record in this matter. While Mr. Dyer testified that
he discussed the right to appeal the sentence with his client,18 he further indicated to Mr.
Elder that such an appeal “would be completely meritless.” In clarification of this advice,
Mr. Dyer related that following the sentencing hearing he informed Petitioner that he was
18
Petitioner acknowledges that Mr. Dyer’s “performance was exemplary up and until
the sentencing phase of the underlying proceedings.”
13
“one of the luckiest men I’ve ever represented in twenty-three years”19 and indicated
additionally that he did not see any basis for appeal.
Upon its review of the record, the trial court concluded that there was no
evidence that Petitioner instructed Mr. Dyer to file an appeal on his behalf. Mr. Dyer’s
testimony that he never told Mr. Elder that he would file an appeal was viewed by the trial
court as confirmation of Petitioner’s failure to direct Mr. Dyer to file an appeal. According
to the trial court, the “record demonstrates that, during the time that Mr. Dyer was the
Petitioner’s counsel, he took the necessary actions that a reasonable criminal defense attorney
would take in a similar situation.” Based on this finding, the trial court opined that Mr. Elder
had failed to meet the requisite first prong of Miller: a showing of deficient representation
under an objective standard of reasonableness. See 194 W.Va. at 6, 459 S.E.2d at 117, syl.
pt. 5. Given that Petitioner received what can only be viewed as a lenient sentence in view
of his admission to committing undisputedly offensive criminal conduct,20 we seriously doubt
that a meritorious appeal could have been taken from the trial court’s sentencing decision.
See id.
19
In further explanation, Mr. Dyer opined that Mr. Elder “had pled guilty to a fabulous
deal, [and] received a sentence that shocked everybody involved in the case in this courtroom
[as it] was much more lenient than anybody anticipated.”
20
The trial court commented during the omnibus hearing that its decision to impose
alternative sentencing was impelled by Mr. Elder’s serious health condition and his prior
military service to this country.
14
Concerning the alleged failure to timely file a motion for reconsideration of
sentencing, the trial court determined that the actual filing Mr. Dyer had been directed to
prepare on Petitioner’s behalf was not a motion to reconsider sentencing but a motion to
modify the terms of his home incarceration.21 As the record confirms, Mr. Dyer filed a
motion to modify the terms of Petitioner’s home incarceration on June 23, 2009. By order
entered on August 19, 2009, the trial court denied this motion, stating that the motion lacked
supporting medical information necessary to substantiate a legitimate basis for the requested
modification.22
Upon its review of the record, the trial court concluded that Petitioner had not
introduced any evidence in support of his claim that Mr. Dyer was instructed to file a motion
for reconsideration of sentence on his behalf. Returning to the first prong of Miller, the trial
court ruled that Petitioner had failed to demonstrate that Mr. Dyer’s actions fell short of what
a reasonable criminal defense attorney would have done in a similar situation. Having
carefully and fully reviewed the record in this matter, we find no basis for disagreeing with
21
While the trial court refers to the terms of home confinement in its ruling, we employ
the proper terminology–home incarceration–for the purpose of educating both the bar and
the judiciary as to the retitling of the subject legislation. See supra note 1.
22
As the trial court explained, Mr. Elder’s medical condition had been specifically
considered in making the decision to place Petitioner on home incarceration. To the extent
Petitioner was seeking a reconsideration of sentence, the trial court ruled that such a motion
was untimely as the 120-day appeal period had expired on June 13, 2009.
15
the trial court’s decision that both of Petitioner’s ineffective assistance of counsel claims do
not survive scrutiny under Miller. See 194 W.Va. at 6, 459 S.E.2d at 117, syl. pt. 5.
C. Religious Freedom
In an arguable attempt to create a constitutional claim for purposes of seeking
habeas relief,23 Petitioner asserts that he is being denied the right to exercise his religious
freedom.24 See W.Va. Const. art. III, § 15. As related above, the trial court fully considered
Mr. Elder’s request to attend thrice weekly church services at the Weston Church of God.25
In light of the fact that Petitioner was not attending any church services before he was placed
on home incarceration combined with the correlative need to protect any children in
attendance at those services from a convicted pedophile,26 the trial court denied Mr. Elder’s
request to attend religious services at the Weston Church of God.
Rather than looking to our state or federal constitutions as the source of the
alleged infringement of his religious freedoms, Petitioner relies instead upon a provision of
23
See supra note 13.
24
This claim was raised on the second day of the omnibus hearing. See supra note 7.
25
Through the testimony of Pastor Randall Lane Hughes, it was established that
Petitioner was seeking to attend services, which last for approximately two hours, on Sunday
mornings, Sunday evenings, and Wednesday evenings.
26
Pastor Hughes testified that minor children would be on the church van/bus that Mr.
Elder would be using when a congregant/neighbor was unable to drive him to church.
16
the Home Incarceration Act. Specifically, Mr. Elder cites to the statutory provision in which
the Legislature has broadly addressed the contents of the order required to place an offender
on home incarceration. See W.Va. Code § 62-11B-5. As part of the delineated but expressly
non-inclusive list of matters to be addressed in a home incarceration order,27 the Legislature
included the foundational requirement that an offender be confined to his or her home at all
times subject to certain delineated exceptions. One of the statutorily-recognized exceptions
to continuous confinement is “[a]ttending a regularly scheduled religious service at a place
of worship.” W.Va. Code § 62-11B-5(1)(E).28 Because worship service attendance is
expressly identified within the legislatively-approved exceptions to confinement within the
offender’s home, Mr. Elder argues that he was wrongly denied the right to attend services
at his desired place of worship.
Looking to the introductory language of West Virginia Code § 62-11B-5 which
provides the elements that a home incarceration order “is to include,” Mr. Elder argues that
27
The Legislature made clear that additional matters could be included in the home
incarceration order. See W.Va. Code § 62-11B-5(1) (providing that “order for home
incarceration . . . is to include but not be limited to, the following”).
28
The other exceptions specifically contemplated by the Legislature include matters
of employment; medical, mental health and counseling; education; community service or
work release; and a catchall category of non-specified but specifically-approved activities.
See W.Va. Code § 62-11B-5(1)(A)-(G).
17
he has a statutorily-mandated right to attend religious services.29 In making this argument,
Petitioner misreads the legislative use of the introductory language and further fails to
consider that the exceptions to the requirement that an offender be continuously within the
confines of his or her home are clearly subject to court approval.
In specifying nine items that are required to be included in each and every
home incarceration order,30 the Legislature provided the critical elements to be contained in
such orders. The first of these requisites concerns the core directive that an offender must
be confined to his or her home at all times unless a designated exception is applicable. See
W.Va. Code § 62-11B-5(1)(A)-(G). Because church attendance is a recognized exception
to the ongoing requirement of confinement, Petitioner contends that every home incarceration
order must necessarily permit an offender to attend religious services. We find this argument
unavailing for several reasons.
29
With amendments enacted in 2001, the statutory language that formerly directed
what a home incarceration order “shall include” is now phrased in terms of providing what
the order “is to include.” Cf. W.Va. Code §§ 62-11B-5 (1994) to 62-11B-5 (2001); see State
v. McGuire, 207 W.Va. 459, 462 n.2, 533 S.E.2d 685, 688 n.2 (2000) (referring to
requirements of W.Va. Code § 62-11B-5 (1997) as “mandatory”). While the statutory
amendment is worth noting, our decision does not turn on whether or not the introductory
language is framed in mandatory language.
30
There are actually eight specific requirements as the ninth item recognizes a general
requirement that “the offender abide by other conditions set by the circuit court or by the
magistrate.” W.Va. Code § 62-11B-5(9).
18
In suggesting that the Legislature has mandated that every home incarceration
order must authorize participation in the areas covered by the exceptions to confinement,
Petitioner overlooks an implied need to determine whether those exceptions apply to the
particular offender. See id. For instance, because Mr. Elder is retired there would be no need
to expressly provide as a term and condition of his home incarceration that he may leave his
home for employment or employment seeking purposes. Similarly, it stands to reason that
someone like Petitioner who is not attending church at the time of his sentencing is unlikely
to require an approved allotment of time to attend worship services as part of his home
incarceration order.31 Just because the Legislature anticipated the need to permit an offender
to leave his or her home for certain limited purposes during the course of home incarceration,
this does not mean that the Legislature sanctioned the automatic right of every offender to
participate in each of the excepted activities. See W.Va. Code § 62-11B-5(1)(A)-(G). Only
when those specified and excepted activities are authorized by the terms and conditions of
the home incarceration order or after the trial court has indicated its approval of such activity
does an offender have permission to leave his or her home to engage in an activity covered
by the exceptions to West Virginia Code § 62-11B-5(1).
31
We are not indicating that an offender who is not initially permitted to attend
worship services under the terms of his or her home incarceration order could never obtain
the trial court’s approval to attend such services. This is a matter subject to the trial court’s
discretion and controlled by the facts of a given case.
19
When the issue of attending worship services at the Weston Church of God was
raised below, the trial court carefully considered Petitioner’s right to exercise his religious
freedom against the state’s parens patriae duty to protect the children who would either be
on the church bus or van or inside the sanctuary during worship services. Upon a balancing
of Petitioner’s request to attend religious services against the specific factors present in this
case, the trial court correctly recognized the paramount need to protect the children from the
possibility of harm. The trial court also considered the fact that both Pastor Hughes and other
church members had been regularly visiting Petitioner and apparently engaging in Bible
study with him in his home. Because Mr. Elder was free to continue to meet and have
fellowship with the Weston Church of God members in his home, the trial court concluded
that his right to exercise his religion freedom was not being violated.32 We agree.
Upon our review of the provisions of the Home Incarceration Act, we are
convinced that the trial court properly considered Petitioner’s request to attend worship
services and applied the appropriate factors in reaching its decision. As discussed above, an
offender does not have an automatic right to attend religious services. That statutorily-
recognized exception, like the other exceptions set forth in West Virginia Code § 62-11B
32
During the oral argument of this case, there was a lengthy discussion of how an
individual can exercise his or her freedom of religion within the confines of his or her home.
Examples discussed included listening to worship services aired on the radio and viewing any
of the many church services that are regularly aired on television.
20
5(1)(A)-(G), is subject to the trial court’s discretion. Having carefully reviewed the record
in this case, we find no basis for concluding that the trial court erred in denying Petitioner’s
request to attend worship services at a specified church in view of the competing concerns
necessarily injected into the decision by virtue of Petitioner’s status as a sexual offender. Mr.
Elder is free to exercise his religious freedom in other ways.
IV. Conclusion
Based on the foregoing, we do not find that the trial court committed error in
denying Petitioner’s request for a writ of habeas corpus.33 Accordingly, the decision of the
Circuit Court of Harrison County is affirmed.
Affirmed.
33
With regard to Petitioner’s plea that he be immediately released from his home
incarceration and placed on probation due to his deteriorating health, we observe that this
concern is not the proper subject of a habeas complaint. See supra note 13.
21